The judge overseeing the fraud case against HealthSouth Corp. founder Richard M. Scrushy yesterday dismissed an ill juror and replaced him with an alternate, effectively restarting deliberations after 16 sometimes tense days.
U.S. District Judge Karon O. Bowdre instructed the jury to "start anew." Jurors will return to the Birmingham courthouse today to continue their discussions.
The juror switch is merely the latest twist in an already peculiar five-month-old case. In an unusual move, the judge allowed the panel to set its own schedule when deliberations began May 19. The talks have been punctuated by frequent interruptions. Jurors have taken off three sick days, two days because of prepaid vacations, two more days for unspecified emergencies or commitments, and one holiday.
The judge defended the schedule yesterday, saying from the bench that jurors "have placed their lives on hold," forsaking time with family, sick relatives and medical appointments in an effort to reach a verdict. Court officials said the new jury had decided to meet from 7:30 a.m. to 4:30 p.m. Central time. Previously the group had worked only 51/2 hours each day.
Both sides in the case said they think the new jury, composed of five whites and seven African Americans, can render a fair verdict.
"It's always a good thing when they go back through the evidence," U.S. Attorney Alice H. Martin said.
Defense lawyer James W. Parkman III told reporters that replacing the sick juror with an alternate "was the best thing to do right now."
The ill juror, an older white man, is an Army veteran who told lawyers during jury selection that wealthy people can afford better lawyers.
Whether the presence of the new juror, an African American man, will help break a stalemate is far from clear. Before yesterday's developments, jurors sent multiple notes signaling they were having trouble reaching a unanimous verdict. The last such note came June 3. Bowdre responded by firmly urging the panel to work hard and avoid the expense of a new trial.
Scrushy faces three dozen criminal charges tied to a $2.7 billion accounting fraud at the Birmingham rehabilitation hospital company. He is the first chief executive to stand accused of violating the 2002 Sarbanes-Oxley Act, which requires top executives to vouch for the accuracy of their books. That charge alone carries a maximum penalty of 20 years in prison.
Scrushy denies the charges and argues that he was deceived by subordinates who plotted to enrich themselves and cover poor business decisions.
Legal experts said that excusing a juror in the middle of deliberations is rare, but not unprecedented, in high-profile criminal cases.
Last year, a federal judge in the District booted a juror in a six-month-old gang trial for refusing to deliberate. The same thing happened in Miami in 1998, when a juror hearing a case against a man with ties to a drug cartel allegedly filed her nails rather than enter into discussions with her fellow panelists. The juries in both cases eventually convicted the defendants.
Removing a juror who is having persistent or worsening health problems, as Bowdre stated yesterday, would not by itself trigger an appellate review, experts said.
That is because federal judges enjoy wide latitude in setting schedules and other aspects of managing their caseload. Barry Boss, a partner at the Cozen O'Connor law firm in the District, said that if a judge determines a juror is sick and has little chance of returning to serve, such issues generally face a high bar on appeal.
Both prosecutors and defense lawyers in the Scrushy case have been building a painstaking appellate record based on other issues. The government already has filed an appeal of the judge's dismissal of three perjury charges before she sent the case to the jury.
The new juror was among four alternates who were dismissed last month. The judge directed them to be available and to avoid news accounts and broadcasts about Scrushy and the trial.
Since that time, the conviction of former Tyco International Ltd. chief executive L. Dennis Kozlowski has permeated the airwaves. Scrushy's father, Gerald, died earlier this week, which became a subject of news coverage after the defendant issued a news release.
"I am truly saddened that he will not be able to hear the jury say, 'Not Guilty' in his son's trial," Scrushy said in the release.
Johnson reported from Washington, Hedgpeth from Birmingham.