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by Andrew Kreig
An Alabama federal judge is scheduled Aug. 3 to resentence the state's former governor, Don Siegelman, on corruption charges. Thus, the nation's most notorious frame-up of the decade has now become the Sentencing of the Century, at least so far.
Tragically, higher courts and the Justice Department have left Siegelman's convictions largely intact instead of granting a new trial. Among the many compelling reasons for a new trial is the failure of the trial judge, Mark E. Fuller, right, to recuse for his mind-boggling behavior and appearance of bias. The Justice Department's Washington headquarters has encouraged this outrage for many years, and covered up all wrongdoing.
The level of DOJ arrogance and indeed lawlessness in this case suggests that it is reasonable to fear repetition at courthouses elsewhere. Indeed, this case's irregularities are far from unprecedented. They are simply higher-profile than most in terms of numbers of whistleblowers ignored and in direct political impact by long-term smear of a party leader.
Last week, our Justice Integrity Project announced that we were undertaking a reduced publication schedule for a major project. We kept the announcement deliberately obscure in order to avoid distractions. But I'll share for those following the Siegelman case that the research project documents how the perpetrators of Alabama-style federal court justice are on a mission to transform not just one state, but civic life elsewhere. In my view, this fosters a dangerous new order nationally that opposes fair elections, watchdog institutions, an independent news media, and other independent voices. More on that to come.
Most helpful for now as we chart the disastrous course of the courts is to suggest a guide to understanding the Siegelman proceedings later this week. For such an occasion, the most relevant developments should be scrutinized.That way, the malefactors are ultimately held to account.
Below also are several of the powerful comments made during recent days in Alabama. Most important is a formal statement by Montgomery-based U.S. District Judge Myron Thompson. He invoked his recent experience in presiding over a disastrous federal corruption prosecution against gambling entrepreneurs to urge better Supreme Court guidance on what constitutes quid pro quo in bribery cases. This is also one of the many irregularities in Siegelman's prosecution on corruption charges.
What's in the pre-sentence report by the U.S. Probation Office? A good reporter can obtain at least parts of the report, which is usually the most thorough description of the case.
What are the sentencing guidelines applicable for this case? These guidelines provide a range of sentences for a relevant crime, and a judge must state reasons for a departure above or below the guidelines.
What sentence is recommended by the Justice Department? In 2007, Fuller ordered a seven-year term. But a federal appeals court vacated two counts. The Obama DOJ thereupon requested in June 2009 an astonishing increase of the original sentence to 20 years instead of a reduction. What is the DOJ's current recommendation after years of more revelations and whitewash about its behavior? The DOJ may keep a low-profile at the sentencing. It has nearly completed its dirty work in this case, and its Montgomery office is now being run by U.S. Attorney George Beck, who disgraced himself as a defense attorney during the prosecution. So, the DOJ wheels are already in motion without more of a public profile.
What will Siegelman say? Will he admit guilt in hope of wringing mercy from the stone-hearted judge? Most lawyers counsel that posture. But Siegelman has legitimate reason to believe the judge was part of the frame-up conspiracy and was amply rewarded with hundreds of millions of dollars in no-bid contracts to a federal contracting company, Doss Aviation, Inc., that the judge secretly controlled as by far its largest shareholder. Whatever decision Siegelman makes, you can be sure he will be quaking inside at his momentous choice. It could mean the rest of his life in prison if he antagonizes a judge who hates him. Or, he could be giving up a last real chance to say what's on his mind before he is taken away.
How will the judge respond to statements in court? The more arrogant judges increasingly take the position that defendants who plead not guilty and otherwise defend themselves deserve extraordinary punishment for failure to show remorse. Thus, the Democratic judge for former New York City Police Commissioner Bernard Kerik, a Republican, imposed in 2010 a four-year sentence that was far above sentencing guidelines. Shockingly, the judge cited as his rationale that Kerik pled not guilty to corruption charges and sought to articulate that view in ways far less visible and direct than Siegelman's. I covered the Kerik sentencing, and documented why Kerik had good reason to test the evidence and procedures before the judge forced a guilty plea by throwing Kerik into solitary confinement without bond pretrial and threatening to dismiss Kerik's lawyers unless he pled guilty immediately. Kerik, one of the most honored policemen for bravery in New York City's history, confided to me later that he was so frightened at what the judge might do that the sentencing hearing passed as a blur to him. At left is a photo of Kerik and his wife, Hala, taken by their friend Maxine Susseles. This was just after the sentencing in White Plains, NY, and before Kerik's report date two months later to the federal correctional institute in Cumberland, Maryland, where he remains.
Will the judge recommend a harsh and distant facility? Judges have vast discretionary power to make life miserable for prisoners and pretend that any harshness is the fault of the Bureau of Prisons. In the 1970s, former GOP Nixon Administration Attorney General John Mitchell served relatively easy time at a federal correctional facility located on Maxwell-Gunter Air Force Base in Montgomery. By most reasonable standards, Siegelman's actions were at worst far less venal than Mitchell's and involved lesser responsibilities. But legal logic can justify any result, and Siegelman could be headed to oppressive conditions far from Alabama. A judge can affect that kind of decision one way or another behind the scenes.
Will the judge order immediate incarceration?White-collar defendants typically receive at least a brief delay in sentence after a hearing to put their family affairs in order. In 2007, Fuller unexpectedly denied this routine procedure to Siegelman and his co-defendant Richard Scrushy. They were hauled away immediately in chains to begin their terms, with Siegelman put in solitary confinement that kept him away from family, friends and the media. He was released on bond in March 2008 following a nationwide outcry over his case arising from a February 24, 2008 CBS 60 Minutes report. Did Ex-Alabama Governor Get A Raw Deal? showed how the Bush administration had framed him as his state's leading Democrat.
Most have forgotten that history now that the Democrats hold many of the top jobs at the Justice Department. But those of both parties should recall that what happened to Siegelman and Kerik can happen -- and has happened -- to many others, as such authors as Harvey Silverglate have documented in his landmark 2009 book, Three Felonies a Day: How the Feds Target the Innocent.
Will President Obama take seriously a pardon request? Most of Siegelman's legal challenges have come to an end aside from, at last report, the DOJ's still-pending and otherwise disgraceful delay since 2006 in responding to his Freedom of Information Act request. He deserves evidence on a vital point: whether former Middle District U.S. Attorney Leura Canary in fact recused herself, as she claimed, because of the clear conflict of husband William Canary's opposition to Siegelman's re-election after his first term,1999 to 2003. Regardless of that proceeding, the Siegelman case is approaching the closure required for consideration of a presidential pardon. Dana Siegelman, the defendant's daughter, lauched a pardon campaign July 30. It merits support.
Beyond these recommendations of mine, several commentaries from Alabama deserve attention. In U.S. Judge Releases a Timely Opinion That Shows Siegelman Defendants Were Unlawfully Convicted, Legal Schnauzer blogger Roger Shuler analyzed Thompson's criticism of the murky legal standard quid pro quo (the Latin term for "what for what," used in law to denote the exchange of one valuable thing for another).
Using the concept, prosecutors failed to win jury convictions during two major trials of gambling defendants accused of corrupting legislators. This not only wasted an estimated $35 million in taxpayer legal costs, as computed below, but illustrated similar problems to the Siegelman prosecution. The difference, of course, was that Fuller made so many pro-prosecution rulings on vital issues as to virtually ensure a few convictions from the 34 felony charges originally filed.
Only after Siegelman's 2006 trial was it revealed that Siegelman had appointed a state prosecutor in 2002 to investigate allegations Fuller conspired to defraud Retirement Systems of Alabama (RSA) of $330,000, and that Fuller "hated" Siegelman for that, according to sworn testimony by longtime Republican Dana Jill Simpson.
Also, she provided sworn evidence -- apparently never investigated by anyone but bloggers -- that Fuller has become rich from his long-secret holdings. Doss Aviation trains Air Force pilots and refuels Air Force planes around the world.
An Air Force reserve colonel helped lead the Siegelman prosecution, which the Justice Department headquartered at the same Air Force base that had imprisoned Mitchell. The Republican investigation of Siegelman began shortly after he took office as governor in 1999, initiated by then state Attorney Gen. William Pryor, who now sits on the majority Republican federal appeals court in Atlanta that oversees Siegelman's appeals from Fuller's decisions. For the Bush administration to locate a civil prosecution team at a military base in order to target a state's top Democrat on dubious charges resembles a para-military coup. Was it, or was it simply insensitive? At some point perception becomes reality.
The military base HQ was one indication that the Siegelman prosecution was no ordinary case. Another is the flagrant disregard by the Justice Department and courts in applying clear-cut law on the law of recusal, which places the burden on a judge to inform litigants if an appearance of bias might occur. Instead, Fuller, the courts and the DOJ have argued that litigants in this case should have unearthed the secretive judge's finances before trial. Further, authorities argued that no independent fair person would think there might be an appearance of bias. Fuller has denied bias, and the appellate court appointed a very wealthy Democratic judge to issue an opinion, which was (not surprisingly) that a judge's wealth does not equate to bias.
Meanwhile, the now-craven leadership of RSA, the state employees' pension fund whose leader once dared criticize Fuller in 2002 for the attempted fraud, has since hired Leura Canary to join RSA's executive leadership. Appointing one of the nation's most disgraced public officials and political hit artists to such a job should worry any government pension-contributor, and not simply in Alabama. It helps illustrate a nationwide trend to foster partisan political control over all segments of society, especially where big dollars are involved.
Another blogger, who operates under the pseudonym "Alabama Wants Democrats," has reported Fuller's Doss holdings as being worth between $6 million and $100 million, according to financial disclosure reports. Fuller reportedly sold his interests late last year for an undisclosed sum in advance of a divorce action this year by his wife, Lisa Fuller, who claimed the judge was involved in an affair and implied he was misusing drugs.The blogger, who uses only a pseudonym for fear of reprisal, continued:
It seems that, if the United States Congress and the Judicial Council of the Eleventh Circuit haven’t had enough of Mark Fuller, his wife, Lisa Boyd Fuller, has. In April, she filed for divorce after 30 years of marriage. While Mark Fuller’s lawyers promptly got the divorce file sealed, what emerged before then was serious enough to merit the investigation of any federal judge. Discovery requests served on Mark Fuller covered such judicially unbecoming topics as prescription drug addiction, driving under the influence, an extramarital affair with a Court employee whom he supervises, and domestic violence.
Normally, such accusations are best viewed with a gimlet eye in a divorce case. But Ms. Fuller’s lawyers have listed the pharmacies whose records they want to subpoena, and the very number of different pharmacies sends up Limbaugh-like addiction warnings. There’s every reason to believe Ms. Fuller will settle the divorce case for a large chunk of Mark Fuller’s wealth before lots of judicial mud is made public, and it’s hard to blame her. But that doesn’t mean she can’t -- or shouldn’t -- be interviewed, and subpoenaed if necessary, by Congressional investigators.
As regular readers of my posts know, I always strive to provide them with some positive action to take. In this case, that action involves getting Congressional investigators talking to Lisa Fuller, and otherwise looking into Mark Fuller, and the Siegelman case generally. If this is going to happen, we are going to have to be the squeaky wheel that demands its grease.
Our project is among those who have reported that the judge's affair was with a longtime federal courtroom clerk whom he supervised and who was married until her husband obtained a divorce last fall. To provide special consideration for Fuller in violation of normal open court procedures, Alabama Circuit Court 15 Judge Anita Kelly has sealed the court file over the objection of Fuller's wife and reporters, including Shuler and the Justice Integrity Project. Kelly also has failed to respond to our request for a hearing to advocate open records under relevant Alabama law.
In 2010, Bill Barnes, the Democratic primary winner and nominee for the U.S. Senate in Alabama, tried to obtain answers from both the White House and Justice Department about the Siegelman case as well as about health issues for Alabama residents related to clean-up of BP's Deepwater Horizon oil disaster in the Gulf that year. Our project reported extensively on his unsuccessful efforts to receive the even courtesy of a reply from the Obama White House, DOJ or EPA.
Barnes lost his campaign against the overwhelmingly better financed incumbent senator, Richard Shelby. Barnes, at right, later shared with me his view that national Democrats are too timid in fighting for basic human rights in states such as Alabama that they perceive as under GOP domination.
Another factor is that national Democrats have relied extensively for political and legal information on such dubious sources as former Democratic Congressman Artur Davis, a friend of President Obama since their law schools. In late 2007, Davis dropped his support of Siegelman's fight for justice. Clearly, Davis hoped to win GOP support for his own political career in Alabama, including a gubernatorial run in 2010. Instead, the Davis career imploded because of revulsion by his base against him on that and similar issues. Yet the national media continue to quote him as a political savant.
I concur with Barnes but believe the forces in play are far more decisive than simple two-party politics. A more important thread of bipartisan big dollars involving the oil and military sectors permeates the Siegelman case in the background. Fuller's Air Force training and refueling company was and is obviously well-connected to key decision-makers. We can make an educated guess also that Doss Aviation has not been buying fuel for the Air Force at a corner gas station.
Weighing many of these factors are such high-level Washington players as Robert Bauer. He is general counsel to the Democratic National Committee in addition to his work as a partner at Perkins Coie and as general counsel to Obama for America and for the Obama re-election committee. This summer he has been challenging Republican strategist Karl Rove over the legality of Rove's Crossroads GPS fund-raising apparatus. Rove, hitting back hard at Bauer, said the Crossroads organization he co-founded meets all relevant criteria to retain tax-exempt status because it functions much like liberal groups with that status.
The Crossroads dispute has its roots in the Siegelman struggle in ways too complicated to describe here, especially since neither Rove nor Bauer want to draw that connection because of different tactical reasons.
Cutting through this is Shulert. His blogsite recently reported on a sex scandal purported to involve the recent married Rove.
Shuler also sent a message to the nationwide list-serve operated by fellow Alabama resident Pam Miles. She started her list initially for hundreds of Alabama residents who wanted news of the Siegelman prosecution that is ignored or otherwise suppressed by the state's major newspapers. They are each under chain management, primarily Newhouse, and these days are highly deferential to business leadership in Alabama that has consolidated political and financial power. The Pam Miles list now has a nationwide reach of up to 30,000 (including estimates of bloggers who reprint significant columns).
Shuler, a former reporter for the state's largest newspaper, the Birmingham News, posted this comment:
I've spent four years on my blog, Legal Schnauzer, showing that our state and federal courts are a joke. Now, we have Myron Thompson essentially agreeing with me, and I admire his courage for speaking the truth where most other judges will not.
Thompson writes in respectful language, but in so many words, he is saying that courts have done a miserable job of defining and applying the law, causing innocent people to go to prison for "crimes" that are concocted from the bench by frauds like Mark Fuller.
Authorities have scheduled the Siegelman sentencing for a Friday, doubtless in the tradition of news managers in government who pick Fridays to deliver bad news for the public in expectation that the story will disappear over the weekend, never to be revived.
Siegelman may be going away on Friday. But the story of his frame-up will long remain with us, much like the Dreyfus case in France a century ago.
:: photo courtesy of Mike Disharoon, via Creative Commons license ::
Andrew Kreig is a Washington-based non-profit executive, attorney and investigative reporter who directs the non-partisan Justice Integrity Project, a legal reform group.