The Birmingham News carried a story Saturday that is by far the most fair and balanced piece they have run in the history of the federal prosecution of former Alabama Governor Don Siegelman and deposed HealthSouth founder Richard Scrushy. Too bad they didn’t save it for the front page of the Sunday paper, where more readers could have benefited.
This may not be so apparent to the average news reader, but to our experienced eyes, it looks like the publisher was out of town and a different editor was on duty Friday night : )
Or maybe they are just finally feeling the heat from readers for their biased past coverage of the case.
In any event, the story is still not perfect. Please allow me to put on my professor/communications researcher hat for a moment and break it down.
News reporter Kim Chandler starts off by saying:
As former Gov. Don Siegelman and HealthSouth founder Richard Scrushy enter their eighth month in federal prison, their legal saga is far from over. The former captains of politics and industry, convicted in summer 2006, could be facing another year or more in their legal fight to overturn their convictions…
The appeals in their government corruption case are expected to partially focus on the legal test for proving a campaign contribution was a bribe and allegations of juror misconduct.
Siegelman lawyer Vince Kilborn said the appeal process could last a year or more. Unless he’s released from prison while awaiting appeal, Siegelman could serve two years even if his conviction is overturned.
“Two years is a long time for an innocent man to stay in prison,” Kilborn said.
Fair enough so far. Then comes the obligatory balance.
Prosecutors have said they are confident the convictions will stand.
Then some background facts everyone already knows:
Scrushy and Siegelman are asking the appellate court to free them from prison while they appeal their convictions.
The 11th Circuit Court of Appeals this month refused to free Scrushy from a Texas prison, saying he hasn’t proved that he is not a flight risk. Scrushy, who was sentenced to six years, 10 months, filed a motion for reconsideration this week.
The appellate court has yet to rule on a similar request from Siegelman, who is in a Louisiana prison serving seven years, four months in prison.
Then a hint of some real news to come, an actual phone interview with one of Siegelman’s lawyers:
Kilborn said he will file a renewed motion in the coming weeks.
Then comes the two flawed background paragraphs that ignore one of the key points anyone needs to know to evaluate whether Siegelman and Scrushy received a fair trial.
A federal jury in 2006 convicted Siegelman and Scrushy of federal funds bribery, conspiracy and honest services mail fraud. Jurors concluded Scrushy bribed Siegelman for a seat on a state health board with $500,000 in contributions to Siegelman’s 1999 lottery campaign. Siegelman also was convicted on a separate obstruction of justice charge on accusations that he tried to hide $9,200 he received from a lobbyist under investigation by saying it was an aide’s down payment for his motorcycle.
Not once in their coverage of this case have any of the Newhouse chain papers in this state explained to their readers the improper dynamite charge issued by presiding federal judge Mark Fuller when the jury in the Montgomery case was hopelessly deadllocked. The case should have been declared a mistrial.
Instead Fuller, who was no doubt hand-picked to try this case by the Bush Justice Department and the Riley political machine in spite of a corrupt marble system normally used to dole out cases in the Middle District of Alabama federal courthouse, told jurors he had a lifetime appointment to the federal bench and could wait as long as it would take for the jury to reach a unanimous verdict. This was a clear message that the judge was not going to allow a hung jury to lead to a mistrial, so they either had to convict Siegelman and Scrushy – or let them off.
The News story continues with some decent analysis and new information from lawyers:
Defense lawyers for Siegelman and Scrushy are expected to raise multiple topics on appeal, but they say those certainly will include two key issues: Were accusations of juror misconduct adequately investigated? And was there adequate evidence of a deal between the two men to swap the donations for the appointment.
Contribution or bribe?
In most government corruption cases, bribes come in the form of cash, trips or gifts. But campaign contributions were the bribe prosecutors alleged in Siegelman’s trial.
So the question at the heart of the case has been, when does a campaign contribution become a bribe?
Scrushy lawyer Art Leach said there was not enough evidence to show the men struck a deal to swap the donations for the appointment. He said that issue will be part of the appeal.
Leach pointed to a 1991 Supreme Court case concerning a West Virginia politician accused of taking bribes. The high court ruled that contributions are subject to a criminal prosecution when they are made “in return for an explicit promise or undertaking by the official to perform or not perform an official act.”
Because no one witnessed a conversation between the two men striking a deal, and for other reasons, the trial judge erred by not granting a judgment of acquittal or more fully laying out the standard in instructions to the jury, defense lawyers have argued.
“Not just a vague deal, but an express deal” is the burden of proof, Kilborn said.
Defense lawyers have said that, even though the West Virginia case involves a different criminal statute, the standard is applicable to all campaign contributions.
Otherwise, Kilborn argued, overzealous prosecutors could go after any political contributor who receives an appointment or favorable decision from a politician.
More boilerplate balance.
Prosecutors have argued that, because a different law is involved, they are not bound to the requirement of the West Virginia case. Regardless, they say, they proved that Scrushy’s were not normal campaign contributions.
The crime Siegelman and Scrushy were charged with – theft or bribery concerning programs receiving federal funds – requires that the jury find the defendants acted with a corrupt intent, prosecutors argued.
Finally, the News reports for the first time on alleged juror misconduct, although it is still not made crystal clear what is at stake. When a judge charges a jury not to read news coverage or discuss the case outside the jury deliberation room, as judges do in every case in every courtroom in the U.S., to violate that oath is juror misconduct and would also mean a mandatory mistrial.
Here’s how the news reports it:
E-mails are issue:
Scrushy’s lawyers also contend U.S. District Judge Mark Fuller never adequately investigated e-mails anonymously mailed to them that were purportedly written by jurors during deliberations. The e-mails discussed jurors reading outside materials, having a prejudice against public officials and pressuring another juror to vote for a guilty verdict.
One e-mail read: “All public officials r scum; especially this 1. pastor is reall a piece of work……. also keep working on 30.” The 30 is thought to be a reference to another juror by his or her number.
Fuller held a hearing and asked jurors to the stand to determine if they were coerced or felt unfairly influenced in any way to vote guilty. All said they were not.
But Fuller did not, as defense lawyers argued he should have, ask the jurors point blank if they received or wrote those e-mails.
“The obvious inquiry was never made,” Kilborn said.
Fair enough. But there is a serious problem in the next sentence.
Two jurors to whom the e-mails were attributed have told reporters the e-mails were fabricated.
Why not go ahead and name the jurors and the reporters? Enquiring minds want to know.
The story goes on:
Other issues will be part of the appeal, but Leach declined to discuss them, saying the trial transcript, from which the arguments will be written, is not finished.
The transcript of the 2006 trial has not been completed because the original court reporter in the case died. Defense lawyers have argued the delay is unreasonable and that Scrushy and Siegelman should be released from prison while they wait for their appeals to be prepared.
Now, the final flaw.
As it has been reported FIRST in the Locust Fork Journal and then a certain legal blog at Harper’s.org, it is the judge’s responsibility under federal law to see that a transcript of the trial be completed in a timely manner. Why is the News so hesitant to take this judge to task?
Even the Montgomery Independent has written about this issue, a weekly newspaper that gives up its content to be housed on the same Website as the News at al.com – for no share of the revenue, I’m told.
You would think Birmingham News reporters could read their own Website and figure out what the facts are even if they are unwilling to read Websites that have consistently been critical of them.
Just in case you are signed up for the cookie at al.com, you can read the print version of the story at this link under a lousy headline: Legal quest for freedom is uphill fight – if you act before it moves into the premium archives.
One final editorial point: As someone who has been around the news craft for almost 29 years, I know how irresistible it is for reporters and news organizations to hide behind a jury verdict to avoid lawsuits for libel.
I once wrote a headline on a story that made me wake up in the middle of the night in a cold sweat, but it was too late to stop the presses and change it. The headline was: Murderer Arrested. Hey, it fit the one column space and turned out to be true. The problem was, the guy had not been convicted. Luckily for me, he was convicted later.
The problem with the Birmingham News and the other Newhouse papers in Alabama is that they are not consistent in going along with the jury’s verdict. And this also holds true for the New York Times at least in one case. In the cases against Richard Scrushy and Don Siegelman in Birmingham, in the Northern District, the News did not like the jury verdicts when the charges were dropped against Siegelman and Scrushy was acquitted.
Furthermore, some of the New York Times staff (on the Business, Health and Technology desks) were livid when Scrushy did not go to jail for the rest of his life and give up all his wealth as the first defendant tried under the new Sarbanes-Oxley law, written because of the Enron case to hold company executives accountable for corporate fraud.
(Notice Rudy Giuliani is on the campaign trail saying he would repeal Sarbanes-Oxley).
Working as a free-lancer for the New York Times out of Birmingham at the time of Scrushy’s first trial, I am THE ONLY reporter who could have potentially investigated the impact on the jury of Scrushy’s appeal to Birmingham’s African-American churches. But the Times would not put the resources into that investigation to prove anything. They just used innuendo in their news coverage of the verdict instead.
This is not how journalism should be conducted. Independent news and blog Websites like this one can do better, but of course it takes resources. If you want the whole truth, find a way to support the independent Web Press.
