The specter of a mistrial loomed in the criminal trial of Richard Scrushy, founder and former chief executive officer of HealthSouth Corp.
The deadlocked jury adjourned for the week, several hours after informing U.S. District Judge Karon Bowdre that members couldn't reach a verdict on any of the 36 charges against Scrushy. The Birmingham, Ala., judge told jurors to make another effort, saying that if a substantial majority favored a conviction or acquittal, members of the minority should reconsider their position. Such instructions are common when a jury in a federal case appears to be deadlocked. The jury was expected to resume deliberations on June 6.
The latest note from the jury was significant because it applied to all of the charges against Scrushy. Previous notes from the jury had focused only on one complicated charge, conspiracy to commit fraud. The judge had responded to those notes by encouraging jurors to move on to the other charges. In her latest statement to the jurors, the judge said a second jury wouldn't have any more information than had already been presented.
Charlie Russell, a spokesman for Scrushy, said the defense wasn't unhappy with the latest developments, but it was hoping for an acquittal. "We are not looking for any more notes," Russell said. "We want a verdict."
U.S. Attorney Alice Martin, lead prosecutor in the case, said she hadn't considered what the government would do in the case of a mistrial. Scrushy, 52, is the first CEO to be charged under the Sarbanes-Oxley Act of 2002. He is accused of playing a major role in accounting fraud at the company and faces what could be life in prison if convicted on all charges.
Edward Mallett, a former president of the National Association of Criminal Defense Lawyers, said a retrial is never the same as a first trial because lawyers reframe their cases after reconsidering what worked and what didn't.
It is possible for the jury to reach a verdict on some counts and still be hung on others. In that case, it would be up to prosecutors to determine whether they want to retry Scrushy on the charges upon which the jury couldn't agree. However, a split decision could also open the door for defense appeals. "If there's an internal inconsistency, one could say that's grounds for an appeal," said Steve Smith, a lawyer with Bryan Cave who's not affiliated with the case.
Smith said it's up to the judge to decide when to declare a mistrial. "I'm sure the judge will keep after them to make a decision," he said.