A Day of Reckoning for Don Siegelman, Eleventh Circuit

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The Case for Why Siegelman’s Verdict Should Be Overturned

by Glynn Wilson

Former Alabama Governor Don Siegelman was cooking a pizza at his Birmingham home when I got him on the phone Thursday night to talk about his appeal coming up on the ninth of December in Atlanta.

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Glynn Wilson
Former Alabama Governor Don Siegelman in front of the federal courthouse in Montgomery on a break from his sentencing hearing in June, 2007.

I called to ask about the appeal and other things, like his reaction to the election of Barack Obama as president and the somewhat less-than-stellar performance of the Alabama Democratic Party in the same election.

He had some thoughts on how the state party could have done a much better job, and he was disappointed to see another Republican elected to the state Supreme Court. He was surprised the state went so heavily for Senator John McCain, who won Alabama’s nine electoral votes with 60 percent of the overall vote and maybe 80 percent of the white vote.

For now I’ll keep most of his comments private on the problems with the state party and save them for a more detailed analysis in the works for later. Here the focus is mostly on the appeal.

But I have to report that Siegelman got excited when he talked about the Obama landslide, which he called “astounding” and “stunning.” And he talked in the language of a policy wonk on how the campaign did it: A massive and highly effective Web and Internet fundraising campaign, block-by-block nationwide canvassing, educated and dedicated workers at every level, not to mention one of the smartest, most articulate, gracious, and calm-under-fire candidates since John F. Kennedy in 1960.

“It was without a doubt the most impressive and effective campaign in the history of politics,” he said. “Too bad we couldn’t do more with that on the state level.”

He was reluctant to talk in great detail about his hearing before a three-judge appeals court panel in less than a month, especially considering how Chief U.S. District Judge Mark E. Fuller in Montgomery sentenced him to a number of months of extra jail time last summer for talking about the case to the media.

But he is hopeful the court will find its way to justice and throw out the case and let his co-defendant Richard Scrushy out of prison by Christmas.

While we were talking on the phone and he ate his pizza, he also managed to e-mail me a copy of the Time magazine story about to come out on the Web and in this week’s edition. He had not had time to evaluate it or react to it. After reading the story and my take on it the next morning, Siegelman told the TPMMuckraker on Friday he considered it “another shocking revelation in the misconduct of the U.S. attorney’s offices.”


He called the level of manipulation of the prosecution team by U.S. Attorney Leura Canary, who supposedly recused herself from the case because of her involvement along with her husband Bill Canary in previous political campaigns with Siegelman’s opponents, another example of the “outrageous criminal conduct in the U.S. Attorney’s office and the Department of Justice.”

He said further that what the Time story revealed was “more frightening than anything that has come before.” And he believes that his case is just the “tip of the iceberg” in terms of politicized prosecutions by the Bush Justice Department, with the full knowledge and direction of former White House aide Karl Rove and most likely Bush himself.

Solid Arguments

A detailed analysis of the appeals briefs in the case reveal four solid arguments the appeals court panel could stand on to reverse the conviction, order a mistrial, or reduce the sentence.

The first and perhaps most important reason for the court to completely dismiss the case is the lack of substantial proof of an explicit quid pro quo, a Latin and legal term meaning “something for something,” for Siegelman’s appointment of Scrushy to the state hospital regulatory board. This exchange was supposedly for contributions of $500,000 to pay off the debt on an education-lottery campaign, none of which went into Siegelman’s pocket.

The jury in the case heard the prosecution hammer this point about a “tit-for-tat” exchange over and over again during the final weeks of the trial. But in their appeals brief, Siegelman’s attorneys point out that according to precedent, the quid pro quo would have to be proved beyond a reasonable doubt among all of the charges — conspiracy, mail fraud, and bribery. And, they argue that in addition to insufficient proof, Judge Fuller’s jury charge did not make this clear. They ask for complete acquittal on those grounds alone.

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Glynn Wilson
Scott Horton speaks to a North Alabama media reform group in April.

According to New York attorney Scott Horton, who has followed the case closely and written about it himself for the Harper‘s magazine Website and The Daily Beast, the tit-for-tat business the way it was used in this case has “broad consequences for the political world.”

He said in an e-mail interview if the standard that the prosecution argued and Fuller implicitly accepted is correct, “politicians around the country should be in jail right now. Indeed, that number would arguably include Judge Fuller, whose appointment to the federal bench by George W. Bush followed a lifetime of contributions to Republican campaigns.”

He pointed out that it would include the 146 individuals who gave $100,000 or more to the Bush-Cheney campaign who received appointments to federal jobs in return.

Two, on the bribery charge, the appeal brief argues that the statute of limitations had run out. The timing of the alleged bribe was never spelled out in the original indictment, but the judge allowed the prosecution team to nail down the details later. This is a shoddy way to run a prosecution at best.

In an earlier interview, Siegelman’s attorney in the early phases of the case, Doug Jones, said he agreed to wave the statute of limitations on the alleged bribery in the interest of appearing to cooperate fully with the prosecutors in the investigation. But that was at a time when he was being told that the chances of an indictment were slim, well before the “top down review” of the case from Washington he testified about last year before the House Judiciary Committee.

It is clear from the dates looking back now that the alleged crime of passing checks in exchange for the appointment took place in the summer of 1999. Scrushy was appointed to the CON board on July 26, 1999, and the prosecution’s evidence showed the first check from Scrushy was received about that time. The indictment came down on May 17, 2005. For the bribery indictment to be valid, the crimes would have had to take place after May 17, 2000.

The prosecution brought its case too late. Case closed. Charges dismissed, except in a courtroom run by a political opponent of Siegelman with a mandate from the Republican White House to dispatch a brand of political justice only allowed in corrupt, criminal empires.

This should have been dealt with by the judge and should never have made it to the jury. But as we now know, the judge was not acting as an honest broker.

While some newspaper reporters and members of the public may scoff at this notion of dropping the case on appeal based on a technicality, perhaps they should consider the argument that this alleged bribe was nothing more and nothing less than a political contribution. And it’s not like Scrushy needed to give Siegelman money to sit on the board. His role as founder of one of the most innovative health care companies in the state and country at that time would have warranted him a position on the board without the contribution. He sat on the board under previous Republican governors.

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Glynn Wilson
HealthSouth founder Richard Scrushy and his wife Leslie in front of the federal courthouse in Montgomery in June, 2007.

While people have a right to dislike Scrushy for the way he treated people and for cashing in his stock options as the tech bubble was bursting and costing many people great sums of money who had invested in HealthSouth, if the government was going to put him in jail for his role in “cooking the books” in that case they should have convicted him in the Birmingham trial, which was botched by another political appointee, U.S. Attorney Alice Martin, a Republican of questionable qualifications placed in her office for her loyalty to George Bush and the GOP.

Certainly the practice of rewarding loyal political subjects and campaign contributors with jobs should be reformed. But the question people should ask themselves is this: Is the best way to accomplish that throwing innocent people in jail?

Three, on the issue of juror misconduct, the very idea of jurors reading news coverage online and e-mailing each other about the case outside the jury deliberation room would be instant grounds for a mistrial in any honest court. It is clear that the judge and prosecution team in this case did not fully investigate this issue by examining computers and e-mail addresses used by jurors or by questioning the jury or U.S. marshals at length about this.

The new disclosures by Time magazine this week make clear that claims of juror misconduct in the case “are much more substantial than Siegelman or his attorneys knew when they filed their arguments,” Horton says. “In fact, there were improper communications between prosecutors and at least one juror. And it was one of the jurors implicated in the existing misconduct concerns.”

In other words, one of the jurors who was communicating with the prosecution through the U.S. marshals’ service about a romantic relationship with one of the prosecution team was also one of the jurors who read news coverage online and sent e-mails to other jurors trying to get them to find Scrushy and Siegelman guilty.

“Moreover,” Horton says, “the Justice Department hid these facts from the court and the opposing counsel. At this point it seems clear that the jury was corrupted, and that the Justice Department played an active role in that process.”

I have covered many court trials over the past 28 years as a reporter, and I have never seen any judge, Republican or Democrat, who would allow this kind of shenanigans to go on. It is simply outrageous and someone should be held accountable for it.

If the conservative newspapers in Alabama can’t see this, then I have no sympathy for them for their falling circulation numbers. It is irresponsible journalism of the highest order to allow this kind of corruption of the court system — no matter what your political-editorial slant.

Then finally, without citing the affidavit of GOP whistle-blower Jill Simpson or raising the issue of a conflict of interest on the part of the judge themselves, Siegelman’s attorneys adopt all of the arguments in the appeals brief of Richard Scrushy, who does cite Simpson’s claims, and argues that Fuller should not have sat in judgment in the case while he was in the defense contracting business with the federal government. As has been previously reported ad nauseum, Fuller was a lawyer in the defense contracting business in South Alabama when President George W. Bush appointed him to the court — just in time to take up the case and knock Siegelman out of the race for governor.

Doss Aviation, a company in which Fuller owned a controlling interest, received a $117 million contract with the Air Force on the day Siegelman was convicted. If Fuller had been appointed by a Democrat, you would have been able to hear the screams of the conservative newspapers in Alabama on Fox News, all the way to New York.

While some attorneys have expressed skepticism that the appeals court panel will rule favorably on this claim, we think they should consider it, especially since the prosecution team goes to great lengths to tie Siegelman and Scrushy together in an unholy conspiracy. There seems to be plenty of evidence that the bigger conspiracy was on the other side and directed by Karl Rove with the full knowledge of the president himself.

There is an attorney in Montgomery who could shed considerable light on the extent to which George W. Bush was interested in keeping up with developments in the Siegelman case. We won’t name him for now, but we know from talking to other sources who have heard it from him that Bush was in the loop in this case. On top of all the other grounds for impeachment, this would certainly add to the list. Unfortunately, the hierarchy of the Democratic Party refused to pursue this for the past couple of years, and now it is too late.

Then consider what it would be like if you were on trial in a case like this. Would you want to sit in a courtroom and place your fate in the hands of a judge who did millions of dollars in outside business with the U.S. government, the military, and the FBI? Common sense, and basic ethical considerations, should raise red flags in the mind of any honest person on this score — especially appeals court judges.

The Siegelman brief asks for a complete dismissal of the verdict in the case on appeal and for a judgment of acquittal. Short of that, it asks for an order for a mistrial and reassignment to another judge if there is a retrial.

It would be very unusual for an appeals court to “smack down” a district court judge in “quite so harsh a manner,” Horton says. “On the other hand, their ruling setting Siegelman free already indicated what I’d call a lack of patience with Fuller. They clearly suspect something extremely foul and have not acted on it.”

At least not yet.

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Glynn Wilson
Former Alabama Governor Don Siegelman had clearly lost some weight while he was in prison last year. He is shown here having a little fun at the Jefferson-Jackson dinner in Birmingham May 2.

In the response brief from federal prosecutors, they counter all these arguments with legal boilerplate language that looks as though it was copied and pasted from a computer program. There is simply nothing in it worth citing or reporting. From an objective point of view, it is simply not believable.

If the court rejects any of the options laid out by Siegelman’s lawyers, they make a detailed case for why he should be released for time served (nine months) because of the unconstitutional addition to his sentence for exercising his First Amendment rights of free speech to talk to the media.

They cite an internal report from the Bush Justice Department itself which said there is “significant evidence of selective prosecution” and “extensive evidence that the prosecution [was] directed or promoted by Washington officials, likely including former White House Deputy Chief of Staff and Advisor to the President Karl Rove, and that political considerations influenced the decision to bring charges.”

In other words, the case was political. That’s not the purpose of courts. Case closed.

And then, of course, there are implications for the future of American jurisprudence on how this case comes out, beyond the immediate fate of Don Siegelman, Horton says.

“Leura Canary and her team have been fending off a Congressional probe of their misconduct with claims that the case is still active and they cannot therefore be compelled to testify before Congress,” Horton says. “Canary did, however, submit a representation to Congress to the effect that she had no involvement in the case after major decisions were taken — a claim which has now been objectively established as untruthful. Making false statements to Congress is potentially punishable as a felony.”

In addition, Canary’s office has refused to release more than 600 pages of documents about the case, including e-mails, letters, and memos.

When the court of appeals rules in the case, perhaps by Christmas, the case will be close to its legal conclusion, Horton said, other than an appeal to the United States Supreme Court.

“Then their stonewalling tactics will come to an end,” he said. He called the hearing on the ninth of December and their decision in this case a “day of reckoning for the Eleventh Circuit.”

“This is a court overwhelmingly dominated with Republican judges, most of whom have gotten to the bench after a career engagement in GOP politics,” he says. “Will they be able to put their partisan interests aside and deal fairly with a Democrat who has been abused by a Republican administration? We’ll know shortly.”

© 2008 – 2016, Glynn Wilson. All rights reserved.

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