No New Trial For Scrushelman
That’s my call anyway.
The judge held a hearing Friday on Scrushy and Seigelman’s claims of juror misonduct. Their basic argument is that the jurors brought outside material into the deliberations. You can get my previous comments here. Based on what was in the news reports about Friday’s hearing, I don’t think the argument will win them a new trial.
The applicable law was described by Scotus in the 1965 case of Turner v. Louisiana. In that case, the state’s two key witnesses were both deputy sheriffs. It was a high profile case, and so the judge sequestered the jury. Guess who oversaw the jury during the sequestration? The same two sheriffs. Naturally, the defendant cried foul. The case depended on the credibility of the two sheriffs, who would spend the entire period of the trial with the jury. Here’s the key language:
In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.
What happened in this case operated to subvert these basic guarantees of trial by jury. It is to be emphasized that the testimony of [the two sheriffs] Vincent Rispone and Hulon Simmons was not confined to some uncontroverted or merely formal aspect of the case for the prosecution. On the contrary, the credibility which the jury attached to the testimony of these two key witnesses must inevitably have determined whether Wayne Turner was to be sent to his death. To be sure, their credibility was assailed by Turner’s counsel through cross-examination in open court. But the potentialities of what went on outside the courtroom during the three days of the trial may well have made these courtroom proceedings little more than a hollow formality. . . .
[E]ven if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution. We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial – an association which gave these witnesses an opportunity, as Simmons put it, to renew old friendships and make new acquaintances among the members of the jury.
Scrushelman is arguing that the jurors in their case violated the same principle: Considering evidence that had not been introduced at trial. As Turner explains, that is a problem because such evidence was not subject to confrontation, cross-examination, or any of the other procedural guarantees of trustworthiness found at trial.
Now the key question is not whether the jury considered any extrinsic evidence, but whether the extrinsic evidence was prejudicial to Scrushelman. The Eleventh Circuit explains the standard:
A mistrial or new trial is required only if the extrinsic evidence known by the jury posed a reasonable possibility of prejudice to the defendant. . . .
The defendant has the burden to show that the jury has been exposed to extrinsic evidence or extrinsic contacts. Once the defendant establishes that such exposure in fact occurred, prejudice is presumed and the burden shifts to the government to rebut the presumption. . . .
To rebut the presumption of prejudice, the government must show that the jurors’ consideration of extrinsic evidence was harmless to the defendant.
To evaluate whether the government has rebutted that presumption, we consider the totality of the circumstances surrounding the introduction of the extrinsic evidence to the jury.
The factors we consider include: (1) the nature of the extrinsic evidence; (2) the manner in which the information reached the jury; (3) the factual findings in the district court and the manner of the court’s inquiry into the juror issues; and (4) the strength of the government’s case.
The government has conceded that the jurors considered extrinsic evidence. Hence, prejudice is presumed and the government must prove otherwise. This is what happened:
Most of the jurors said Friday they recalled that during the trial that two of the jurors did consult information outside the evidence available in the deliberation room. The majority recalled jury foreman Sam Hendrix looked up the duties of a foreman on the Internet. Some also recalled Hendrix saying he had printed out his own copy of the indictment in the case.
Hendrix, under Fuller’s questioning, admitted he had done so, but said he did not take that information into the deliberation room or use the materials as part of the discussions.
The majority of jurors also remembered juror Katie Langer printed out materials from the Internet – most recalling it being a copy of the indictment.
Upon questioning, Langer admitted to studying the indictment at home during a weekend break in the deliberations.
In my mind, if this is all there is, the government will successfully rebut the prejudice. The nature of the evidence is not unduly prejudicial. An indictment is not evidence, but it all it does is use conclusory language to charge the offenses and the jurors certainly are already well aware of the charges. The duties of the foreman have nothing to do with the merits of the case. There was nothing sinister about how the juors got the information; they acted on their own. The strength of the government’s case depends on who you ask. I was not there, so I do not know.
The only factor that might weigh in favor of Scrushelman is the third one. The judge sounds reluctant to conduct a full investigation:
Scrushy attorney Art Leach argued that the violations by the jurors called all of the actions of the jurors into question, in particular those of Hendrix and Langer. He joined Siegelman attorney David McDonald in asking Fuller for an investigation of the jurors.
The defense attorneys asked Fuller to subpoena the two jurors’ computers and Internet service providers to learn more about what information they searched and which sites they visited.
An anonymous source had mailed defense attorneys copies of e-mails said to be between at least two of the jurors, including Langer and Hendrix. Fuller has not ordered any inquiry on the e-mails and did not ask any direct questions about them in Friday’s hearing.
Fuller did not allow the attorneys to ask questions Friday, and both sides expressed displeasure with the questions Fuller asked. The defense attorneys wanted Fuller to be more probing; prosecutors indicated they thought Fuller had been too probing.
Federal courts really treat jurors with kid gloves. Why, I don’t know. Especially not here. The judge is giving these guys ammo for the appeal by not investigating further. Sure the jurors won’t like being questioned, but they should have thought of that before they disregarded the judge’s instructions.
That said, even if the judge does not hold any more hearings, based on the news reports, I’m calling this one for the government.