updated 5/24/2005 6:55:12 PM ET 2005-05-24T22:55:12

During 16 weeks of trial, themes of black and white emerged as a subtle undercurrent in the case of former HealthSouth Corp. CEO Richard Scrushy.

Now, race is an uncertain element as a jury of six blacks and six whites deliberates claims that he directed a $2.7 billion earnings overstatement at the rehabilitation and health services chain.

Scrushy is a rich, white businessman, and every witness in his trial was white. So were all 15 one-time executives who pleaded guilty in the HealthSouth fraud.

But Scrushy was surrounded by black supporters most days in court, and black ministers often positioned themselves behind him as a backdrop for images seen on television coverage of the trial. In a city and state that are landmarks of the civil rights movement, their presence was hard to miss.

Then, the defense played up racial themes during closing arguments last week, with one of Scrushy’s two black lawyers, Donald Watkins, comparing the millionaire’s plight to his own growing up in segregated Montgomery in the 1950s.

Watkins, 56, recalled not being able to drink from water fountains or use public restrooms in department stores. Courts with “a jury like you” changed all that, said Watkins, claiming Scrushy was wrongly targeted and more change is needed to end such abuses.

The first step, Watkins claimed, is the acquittal of Scrushy.

“It will change, not just for Birmingham, it will change all over the nation. Just like when I couldn’t drink out of the water fountain, now I can drink out of any water fountain in the nation. It changes,” Watkins said.

The defense denied any special effort to win sympathy among black jurors or the minority community, and such a move could be risky since the 12-person panel is evenly split between blacks and whites.

But the racial aspect of the case has been repeatedly mentioned in local media coverage, radio shows and barber shops, even before Watkins’ passionate closing remarks.

It even spawned a joke: What’s the difference between Michael Jackson and Richard Scrushy? Jackson is a black guy who became white before his trial; Scrushy is a white guy who tried to become black before his.

Former prosecutor Don Cochran has a hard time believing jurors could actually be swayed by a racial appeal.

“It’s just too transparent,” said Cochran, who teaches law at Samford University in suburban Birmingham. “I just can’t believe that race is going to have anything to do with this case.”

How it will all play with the jury remains to be seen; deliberations continue Monday for a third day.

Watkins, Scrushy’s chief legal strategist and a polarizing figure himself during his long legal representation of Birmingham’s first black mayor, denied his client was targeting the black community in an effort to build sympathy.

“I don’t think it’s a matter of race. I don’t understand why people focus on that,” Watkins said.

But the trial’s racial tableau was sustained throughout.

Aside from relatives, most people who showed up in court regularly to support Scrushy during 3½ months of trial were black. Some were friends from the mostly black Guiding Light Church, which Scrushy and his wife began attending after the HealthSouth scandal was uncovered. Scrushy donated more than $1 million to the congregation in 2003, the year the fraud became public.

Outside court, a black lawyer, Lewis Gillis, became the most visible defense team member by giving daily updates to the media during the trial. And Watkins — who gained national exposure for an unsuccessful attempt to become the first black owner in Major League Baseball in 2002 — was always around.

The city’s leading black newspaper, The Birmingham Times, ran trial coverage often sympathetic of Scrushy. The day jurors got the case, it featured a front-page story saying “pastors and community leaders have rallied around Scrushy showing him the support of the Christian and African American community ....”

Herman Henderson, a black minister and activist who attended much of the trial, is openly pulling for Scrushy’s acquittal. As deliberations began, Henderson protested that courthouse security workers shooed away black pastors who were distributing pro-Scrushy leaflets.

“Is it a crime to give to minority charities and churches?” asked the flier, referring to Scrushy’s philanthropy. In an apparent reference to reports in the mainstream media highlighting Scrushy’s black support, it continued: “Why has the race card been played?”

Scrushy claims he is innocent and was unjustly targeted by the government — an experience Henderson said many Southern blacks can relate to. By attending the trial and backing Scrushy, Henderson said he is trying to make sure that message and others get out.

“I’m a voice to make sure that the African-American community knows that the prosecution has failed to do their job,” Henderson said in an interview.

Henderson has urged friends and associates to come to the trial through Stop The Violence, an association he heads, and he’s one of as many as 30 “covenant pastors” who informally supported Scrushy through prayer during the trial. The group is mostly black but whites are praying, too, Henderson said.

Comparing Scrushy’s trial to the acquittal of O.J. Simpson on murder charges, Henderson said it would be wrong for anyone to attribute a possible not guilty verdict in the HealthSouth case to black jurors.

“Why don’t you blame the government for coming to court with a weak case?” Henderson said.

Regardless of how the case ends, most blacks and whites around Birmingham don’t seem to be paying much attention to what’s been going on in Scrushy’s trial, which began in Birmingham’s federal courthouse Jan. 25.

Topics like Social Security, the war in Iraq and college football tend to draw more attention on white-dominated talk radio shows, and black talk show host Binnie Myles of WAGG-AM said her listeners don’t seem overly interested in Scrushy, either.

“Some people here are a lot more concerned about things that affect them personally,” said Myles.

© 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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