Justice Department Reopens Juror Misconduct Investigation

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Appeals Panel Could Drop Siegelman, Scrushy Case Tuesday

by Glynn Wilson

In light of recent information from a new whistle-blower in the Bush Justice Department’s political prosecutions still under investigation by Congress, including the case of former Alabama Governor Don Siegelman, the federal court in Montgomery has re-opened the investigation into juror misconduct, according to a document just filed with the appeals court in Atlanta.

“Out of an abundance of caution, the Department of Justice recently reopened the investigation into this matter in response to concerns raised about the completeness of the investigation,” according to the response from U.S. attorneys to a request for supplemental information on Siegelman’s appeal.

It’s on page 10 in footnote four in this pdf document.

Vince Kilborn, one of Siegelman’s attorneys, said the information is significant.


He also said contrary to public and legal opinions published and discussed to date, the three-judge panel could in fact drop the case against Siegelman and HealthSouth founder Richard Scrushy next Tuesday, Dec. 9, in Atlanta.

“They could very well,” he said. “If it’s unanimous it will come down quicker. If there’s a dissent, it takes longer.”

He said there’s no way to guess, but the public should be able to gather some information about what the judges are thinking by the questions they ask.

The hearing is only scheduled for 30 minutes, which would only give the prosecution and defense attorneys 15 minutes each. But Kilborn expects most of that time to be taken up by specific, direct questions from the judges themselves, who have read the trial transcripts and the appeals briefs and responses and should come prepared.

Although Kilborn could not say exactly how the judges were selected, other than to indicate federal judges are usually chosen by a random computer lottery, Kilborn said he was not concerned about the all-Republican three-judge panel selected to hear the oral arguments and decide the appeal.

Some of Siegelman’s supporters and journalists have raised concerns about the panel, which is a different set of judges from those who heard the case for Siegelman’s release pending appeal.

[For more on that, check Roger Shuler's site: All-Republican Panel Will Hear Siegelman Appeal]

The panel issued the order for his release on March 28 as we reported that day.

Writing for the Eleventh Circuit Court of Appeals in Atlanta, judges Susan H. Black and Stanley Marcus, just days after finally obtaining the long-awaited transcript from the two-year-old trial, ordered his release saying he proved he was not a flight risk and there are significant questions worthy of a full hearing on appeal.

“After a thorough review of this complex and protracted record, we conclude Siegelman has satisfied the criteria set out in the statute, and has specifically met his burden of showing that his appeal raises substantial questions of law or fact,” they wrote in the four-page order.

Kilborn would not speculate on which argument of the four is strongest for overturning the Siegelman conviction, as outlined in our recent piece:

Why Siegelman’s Verdict Should Be Overturned

“I don’t see any weak ones,” Kilborn said when reached on the phone in his Mobile office.

“I think the statute of limitations is a slam dunk,” he said. As for the quid pro quo, he said, he thinks precedent cases clearly favor the Siegelman appeal over the government’s argument.

“And I think we have a powerful free-speech/due-process argument,” he said.

In addition, the best evidence the government had was Nick Bailey’s testimony, but the alleged evidence for a quid pro quo, about Siegelman appointing Scrushy to the hospital regulatory board in exchange for contributions to the education lottery, were discussions including “speculation of what might happen in the future,” he said. “I don’t think that testimony implies an agreement at all.”

On the issue of juror misconduct, in which jurors allegedly read news media coverage on the Web and communicated outside the jury deliberation room over the Internet via e-mail, if the appeals panel were to issue a mistrial on that basis, it would land the case back in Montgomery. The question then becomes: Would the court really want to send the case back to Chief U.S. District Judge Mark E. Fuller, who is alleged to have had a conflict of interest in the case, at least according to the Jill Simpson affidavit and the Scrushy appeals briefs?

Further evidence for juror misconduct surfaced in a recent story, which is in part why the investigation has been re-opened, as outlined in detail here:

Explosive New Story Lends Credence to Siegelman Appeal

Some legal experts including Doug Jones, who represented Siegelman early on, have said all along that may not be territory the court wants to wade into.

Now, since the Democrat, Barack Obama, has won the presidency, there will no doubt be changes at the Department of Justice and new U.S. attorneys will be appointed all over the country, so it is doubtful even Republican judges will want to continue to allow the taint of political justice to hang in the air after Obama is inaugurated.

To send the case back to Fuller, a Bush appointee, in this climate, would just cause more damage to public perception of the courts and the Justice Department.

“I don’t think they would send it back to the same judge,” Kilborn said. “But then again, they could.”

Joyce Pope, the calendar clerk for the court, said the courthouse will open next Tuesday at 8:30 a.m. and the courtroom only holds 100 people. There will be no overflow because the other courtrooms will be occupied with other cases. The court does not issue press credentials, so attendance will be on a first-come, first-serve basis, she said. But in her experience, only in the Bush v. Gore case and the Elian Gonzalez case has there been a need for a line to get into the courtroom.

© 2008 – 2012, Glynn Wilson. All rights reserved.

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