Over at the White Collar Crime Prof Blog, Ellen Pogdor discusses an interesting development in the federal criminal case of Alabama’s former governor, Don Siegelman, and Richard Scrushy. Governor Siegelman and Richard Scrushy were both convicted in a federal criminal trial that took place in Montgomery, Alabama. After the jury returned the verdicts, the defense attorneys received documents that purported to be printouts of emails. The documents were received from an unknown source and seemed to suggest that one or more of the jurors was improperly exposed to extraneous information during the trial, and during the jury deliberations.
After receiving the emails, the defense attorneys brought them to the attention of the court in the form of a motion for a new trial. Among other things, the federal criminal defense attorneys asked the Judge to conduct an investigation to determine the authenticity of the emails. According to Governor Siegelman’s attorney, however, the prosecutors opposed this request for any real investigation into the authenticity of the emails. Consistent with the prosectors’ position, the Judge denied the motions for a new trial, as well as the request for an investigation into the authenticity of the emails. After additional printouts were received, the defense attorneys filed additional motions with the Judge, asking the Judge to investigate the authenticity of the emails. On each occasion, this request was denied.
Significantly, earlier this month, the Department of Justice revealed that it was aware of an investigation that was conducted to determine the authenticity of the emails. Specifically, it was recently revealed that while one of the motions referenced above was pending, the U.S. Marshals Service informed the Judge that Postal Inspectors had conducted an investigation into the matter and reached the conclusion that the emails were not authentic. This conversation between a Department of Justice agent and the Judge took place outside the presence of defense counsel; moreover, it was not revealed to defense counsel until 15 months after it occurred.
According to Sieglman’s attorneys, “there can be no doubt that the ex parte communication from representatives of the Department of Justice to the District Court, about matters that were directly at issue in a pending motion, was highly improper.” Among other things, Governor Siegelman’s attorneys have asked for a thorough investigation to determine who took part in, or approved, or knew about but failed to disclose, this misconduct.” You can access the letter Governor Siegleman’s wrote to the Department of Justice here.