BAR TALK: The Crusader
Has U.S. Attorney Alice Martin run amok? The government is investigating. The victims of her failed prosecutions believe they already know the answer.

The American Lawyer
by Scott Horton
July 01, 2008

In March 2007 the U.S. government charged Axion Corp., a small business in Huntsville, Alabama, with illegally giving technical drawings for a Blackhawk helicopter part to manufacturers in China. The prosecutors seized Axion’s assets and took away its government contract business. The company won an acquittal at trial a year later, but by that time, it was out of business.

Axion is the latest in a string of aggressive prosecutions brought by Birmingham U.S. attorney Alice Martin. Those prosecutions are marked by convictions overturned and innocent men wronged. Two judges have openly questioned whether she knowingly prosecuted innocent people. The American Lawyer has learned that the U.S. Department of Justice’s Office of Professional Responsibility has opened an investigation into allegations of misconduct that were made by Axion against Martin.

A Mississippi native, Martin was a federal prosecutor in Memphis and an Alabama state court judge. She has strong ties to the Republican establishment-her mentor is William Canary, a powerful Republican campaign consultant in Alabama who has close ties to former White House deputy chief of staff Karl Rove.

Her first step into the national spotlight came with the prosecution of a group of HealthSouth Corporation executives on fraud charges starting in 2003. Seventeen corporate officers were convicted, but CEO Richard Scrushy, on whom all eyes had been focused, walked out of court a free man.

Next, she drew notice for her wide-ranging investigation of corruption into Alabama’s two-year college system. In connection with the investigation, she dispatched U.S. marshals to Montgomery to serve subpoenas on Democratic lawmakers on the floor of the legislature-a move that was stopped when the legislators pointed out that it might be a crime.

But she is best known for her crusade against former Alabama governor Don Siegelman, a Democrat. Martin tried to prosecute Siegelman on corruption charges, but dropped the case the day after the trial began. She then passed the baton to her colleagues in Montgomery, who brought a second, successful case against Siegelman on the basis of allegedly improper campaign donations by Richard Scrushy. An appeal is pending.

The Siegelman prosecution has been widely criticized as a frame-up by Martin, and the prosecution is now the subject of a probe by the House Judiciary Committee, which is trying to determine if it was brought for political reasons.

She most recently gained notoriety for the failed prosecution of Axion, a company started by Alexander Nooredin Latifi, an intense and amiable entrepreneur who emigrated from Iran as a young man in the 1970s. He learned engineering, and slowly built the company. At its peak, the business had 60 employees and was estimated by a federal court to be worth $50 million.

In March 2007 the government charged the company and its owner with violating the Arms Export Control Act (AECA) by sending technical drawings for a Blackhawk helicopter part to a Chinese manufacturer. The prosecutors in Birmingham, led by Martin, sought forfeiture of Latifis assets and obtained an order that wrought havoc with the company’s government contract business.

After the government secured the asset freeze, no charges were brought against Latifi or the company until March 2007. Then Axion’s defense counsel-Henry Frohsin and James Barger, Jr., of Baker, Donelson, Bearman, Caldwell & Berkowitz’s Birmingham’s office-made a tactical call to waive Axion’s right to a jury trial. Frohsin and Barger were concerned that Latifi’s connections to Iran would be played against him. “At the time of the indictment, the White House was beating the drums for possible conflict with Iran. Since the case would be tried in northern Alabama, where the defense industry and Army are colocated, we felt that we should avoid the possibility of xenophobia,” says Frohsin.

After the trial started in October, the government’s case collapsed quickly. What Axion had attempted to have made in China was nothing more than a tungsten blank, from which Axion intended to mill the actual part. The government was forced to acknowledge that the drawings furnished to Axion by its contractor had not been labeled “restricted,” but instead were given a legend of “noncritical” and “uncontrolled,” meaning that Axion had no way of knowing that their use was restricted. Moreover, the drawings had long been accessible on the Internet.

As the case progressed, the government’s own witnesses were forced to concede that Blackhawk helicopters, equipped with the part in question, had actually been sold to China with U.S. government approval, demolishing the government’s claim of a breach of secrecy. Not only that, but the prosecution was aware of these sales before the case was ever brought.

Still, the prosecution would not withdraw the case. It was ultimately dismissed by Judge Inge Johnson of the federal district court in Birmingham, who wrote, “Evidence was received . . . that at least raises the possibility in the eyes of the district court that the government continued to investigate and prosecute the defendants even after uncovering evidence demonstrating that the defendants were not guilty.”

Another failed case, another investigation. A Justice spokesman says that the Department’s Office of Professional Responsibility, which investigates allegations of misconduct by Justice attorneys, is investigating Martin for “allegations of political prosecution involving both the Northern and Middle Districts of Alabama, arising out of the prosecution of former Governor Siegelman and other matters.”

Knowing what she did, why did the Martin bring the case? She declined to comment for this article. But for a prosecutor, the appeal of a national security case involving arms sales to China is obvious. Or it could be, as Henry Frohsin believes, that “the fact that Alex Latifi was Iranian American was more than tempting for the Department of Justice to try to create a poster child for their arms export control activism.”

Once the case was battered, why did the government persist? The answer, say defense counsel, is that the prosecutors were convinced they could convert an asset freeze and the threat of substantial prison time into a plea bargain. And the Justice Department has made a great show of prosecuting AECA cases.

Having won the case, Baker, Donelson then put the government on the defensive. The firm filed a motion, arguing that the case was not brought in good faith and that the government should compensate Axion and Latifi for legal costs. Judge Johnson agreed. She wrote that the AECA “framework allows the government to effectively shut down an accused business regardless of whether the business is later acquitted at criminal trial. This result is unfair to potential defendants and, in this case as a practical matter, ruined Axion’s business.” She awarded $363,000 in costs, attorneys fees, and interest to Axion.

Alice Martin has not directly addressed the outcome in the Axion case. She issued a press release on May 30, indicating that the government will have to reconsider the way it approaches asset forfeiture cases, or at least be prepared to pay the target’s attorneys fees if it loses. Martin is also fighting the award of attorneys’ fees on procedural grounds, claiming that the freeze orders against Axion and the decertification of the company as a government contractor had in no way harmed the business. Her crusade continues.

The Crusader Has U.S. Attorney Alice Martin run amok? The government is investigating. The victims of her failed prosecutions believe they already know the answer. By Scott Horton From the Axion decision: “Evidence was received [indicating that] the government continued to investigate and prosecute the defendants even after uncovering evidence [that they] were not guilty.”

Scott Horton teaches at Columbia Law School.

Under the Microscope
by Glynn Wilson

Now that we convinced some key United States Senators to delay the vote on Bush’s spying bill and legal immunity for the telecom giants until after the Fourth of July, Independence Day holiday - keeping the Constitution out of the fire for at least a few more days - it’s normally that time of year when we all take a summer break.

In normal times of peace and prosperity, we could all break out the barbecue grills or head for the boat on the lake and pop off some firecrackers and revel in the inherent beauty of American freedom.

Alas, this is no normal year and these are not normal times.

If I were one to put any mental stock into Biblical prophecy, I would say there is plenty of evidence to say these are “the end times.” Floods, forest fires, droughts, food crises, wars and rumors of wars (will Bush-Cheney bomb-bomb Iran before they leave office?)

This has become something of a joke amongst the so-called Birmingham Gay Photographers Club, so named by me for a group of mostly bachelors who get together and go camping from time to time and specialize in photographing nature. Since most are over 50 and are not married, they also like to make gay jokes about each other. It’s a guy thing. (Sorry ladies, and gay people : )

Because of the serious nature of the times, I promise not to write about what I had for breakfast today or the latest on my Revolutionary Garden.

Instead I feel like a little government and media criticism.

While you all know how I feel about the monopoly, corporate press in Alabama, meaning the Newhouse newspapers in Huntsville, Birmingham and Mobile, I do check in from time to time just to see if they are getting the message over there in corporate-chain medialand.

And ever so subtly, it looks like the pendulum is beginning to swing - if just a tad.

Anyone who knows anything about the culture of newsrooms knows it takes a long time to change anything. We’ve hammered their lousy Web design for so long that I just get burned out on bothering.

The Birmingham News has now turned its Website mostly into a series of blogs - as if readers turn to newspapers for blogs - although the programmers at Advance still don’t understand that what readers need is a news page that quickly tells them what the important news of the day is going to be. Not just yesterday’s news posted at 4 a.m. The news that is happening NOW in Washington, New York, London, or Bagdad - or Clay, Alabama.

“It’s going to be a sunny day today,” is not the lead story, guys and gals. Sorry to break it to you.

And while we still refuse to link to it, if you are so inclined to keep up with what newspapers in Alabama are covering today about what happened yesterday, you can do it easily enough on this page:

Alabama News

If you go there and hit the Birmingham News and then search around for the Editorial Page, which is incredibly hidden to the point where we wonder if they are just ashamed of it, you will find an editorial from Sunday FINALLY acknowledging that the Bush Justice Department’s Inspector General’s office released a report last week saying politics and ideology played a paramount role in everything the department has done during the tenure of President George W. Bush, including the hiring of interns.

The editorial page editor of the paper, Bob Blalock, who everyone says is a “nice guy,” a euphemism for “not so smart,” received an interesting honor recently from the University of Alabama’s College of Communications (my alma mater). In their new public relations brochure to keep alumni up on the goings on of the department, the redesigned Communicator - which you can download and read as a pdf file here - you can read the blurb about him receiving the alumni of the year award for print journalism.

You can also read a puff piece about First Lady Laura Bush’s reading program, which she apparently formed to help out her illiterate husband.

And of course Mr. Blalock was awarded this honor by the new dean, whose picture is all over this issue, who as it happens also served in the Texas Air National Guard at the same time as Bush. You remember the story about how Bush went AWOL from the Texas Air National Guard in 1972 to work on a political campaign in Alabama.

Some coincidence, eh? More of Karl Rove’s handiwork in Alabama?

Nah, that would just be a lefty conspiracy theory, right? Then why did they take that entry on his curriculum vitae off the Website after I asked his secretary about it and pointed it out to the former dean? We just report. You decide…

Meanwhile Blalock’s editorial page, while finally telling its readers about the politicized Bush Justice Department in the Sunday paper, has a simple conclusion to draw from it. It was just “dumb.”

The only thing we can conclude is that if the Bush Justice Department was just “dumb,” then the Birmingham News editorial staff must just be “dumber,” since the most important case in the country of this corrupt, political justice occurred right under their noses.

It is quite interesting and curious that one of the two star reporters here who carried the Bush Justice Department’s water in perpetuating this Republican brand of political justice recently left the paper, as we reported here, even though he told me he was happy here just a few months ago after winning a freaking Pulitzer Prize for his reporting supporting the Bush Justice Department’s view of the world.

And since it took several days for the News to discover, digest and pass on the story about the report, I guess it will take them even longer to get around to passing on the most important story this week out of Washington.

That is, House Judiciary Committee Chairman John Conyers, the Michigan Democrat, issued a subpoena to the Department of Justice this week demanding documents in the ongoing investigation of politics at the department, including the Siegelman case. You can download and read the document here on the committee’s Website.

The DOJ has until July 9 to produce those documents, including e-mails. That deadline falls on the eve of the day when the committee is expecting to hear from former Bush political adviser Karl Rove. This could be the most interesting news in the month of July, unless of course Senator John McCain gets the domestic terrorist attack he needs to win the presidential election.

Rove has been subpoenaed to appear and testify under oath - or face arrest for contempt of Congress. Of course he has so far refused to honor the demand to appear, citing White House executive privilege, even though it is not clear how conversations with the president were involved - unless Bush was fully in the loop in the investigation of Siegelman.

Now if that were the case, it would add another interesting tidbit to the considerable list of reasons why Bush-Cheney should be impeached, even though it is obvious this Democratic Party-controlled Congress has no stomach for impeachment in this historic election year.

Now here’s an interesting morsal to savor as you chow down on Fourth of July barbecue and burn the flag for true Independence from tyranny. The ranking minority member of the House Judiciary Committee, Lamar S. Smith, a Texas Republican, of course, has said that if Conyers subpoenas and arrests Karl Rove, he will try to subpoena and arrest Alabama’s famous GOP whistleblower Jill Simpson to testify at the same time.

Well, we have it on good authority that if he tries to do that there might be a problem. There is a certain sea-going cruise planned in the land of the Czars in the days ahead. Where will Karl Rove be on July 10?

Stay tuned in blogland. You may never find out in mainstream medialand, unless it’s just plain too late…

I guess the aggressive progressives got to some of the Democrats in the United States Senate.

The vote on retroactive immunity for the telecom giants has been delayed until July 7, according to a hurried and brief statement by Senate Majority Leader Harry Reid this afternoon.

This is how the potential victory, at least in the short term, was reported by the Electronic Frontier Foundation, the group that has fought as hard as any other for our Fourth Amendment rights against illegal searches…

THE SENATE DELIVERED AN UNEXPECTED REPRIEVE ON TELECOM IMMUNITY THURSDAY NIGHT, deciding to delay the vote on the FISA Amendments Act until after the July 4th recess!

Earlier in the week, the mainstream press was reporting that the immunity bill would see swift and uncontested approval. Senate leaders emphasized that passing an immunity bill this week was one of their highest priorities. And yet, in the end, the bill simply wasn’t as uncontested and noncontroversial as the pundits and politicians thought it was. Overwhelming grassroots action and the efforts of Senators Dodd, Feingold, and Bingaman were critical in giving allies a broader window of opportunity to make an impact on telecom immunity legislation.

For more, click here…

I guess we won’t have to serve them those Florida tomatoes with the salmonella sauce after all : )