Federal Judges Take Siegelman Appeal under Advisement
December 9th, 2008
Former Alabama Governor Don Siegelman outside the U.S. Court of Appeals building in downtown Atlanta.
by Glynn Wilson
ATLANTA, Ga. — The three federal judges who will decide the legal fate of former Alabama Governor Don Siegelman and his co-defendant Richard Scrushy asked deliberate questions of attorneys in an appeal hearing Tuesday morning, focusing primarily on the basis of the evidence for the obstruction of justice charges, although they spent a majority of the time trying to hone in on the facts about the issue of juror misconduct.
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| Glynn Wilson |
| Former Mobile Press-Register staff writer Eddie Curran peeks over the head of AP reporter Bob Johnson, who looks on while others ask questions outside the U.S. Court of Appeals building in downtown Atlanta. |
After watching the proceedings and listening to the attorney presentations and exchanges with the judges, Birmingham attorney Ed Gentle agreed with my analysis that the court is leaning at the very least toward remanding the case on the basis of juror misconduct.
But since most of the discussion about obstruction of justice focused more on the motorcycle Siegelman was alleged to have taken from a lobbyist, rather than the facts surrounding the contributions Scrushy made to the education lottery campaign, Gentle thinks the Siegelman and Scrushy teams are facing a good chance still that the appeals panel will overturn the case and throw it out entirely.
“The court can’t be willfully blind to the overwhelming evidence” that jurors read news coverage and communicated via e-mail in violation of the judge’s instructions in Montgomery, he said. “And if the motorcycle is all the prosecution has, they’ve got nothing.”
Sam Heldman, an attorney from Washington, D.C., who handled the arguments for Siegelman’s team, argued that the testimony of Nick Bailey, Siegelman’s former chief of staff, was not clear evidence of a quid pro quo agreement for Scrushy to get a seat on the hospital regulatory board in direct exchange for his contributions to the education lottery campaign.
The prosecution team argued that it was evidence of bribery and obstruction of justice, but the three-judge panel from the Eleventh U.S. Circuit Court of Appeals seemed skeptical.
Chief Judge J.L. Edmondson, appointed by former President Ronald Reagan, asked the most questions about that issue. Senior Judge James C. Hill and Gerald Bard Tjoflat, both appointed by former president Gerald Ford, asked more about juror misconduct.
Bruce Rogow, a law professor from the Nova Southeastern University Law Center in Fort Lauderdale, Florida, argued Scrushy’s case, and most impressed observers in his responses to questions from the judges on both issues.
Right after the hearing, Siegelman said he was “impressed with the depth of knowledge of the judges on the case and I have full confidence in the court.”
When asked for his reaction to the hearing by the press corps waiting outside the courthouse, he said the only question he was disappointed not to hear was how he came to be prosecuted by the wife of a paid consultant to his political opponents.
The House Judiciary Committee has already issued a highly critical report including Siegelman’s case in a raft of political prosecutions around the country by the Bush Justice Department.
Since the appeals briefs were filed in the case, an explosive story out in November showed even more evidence of blatant juror misconduct, and that issue seemed to hold the attention especially of Judge Hill, who even corrected Heldman at one point in the proceedings on the wording of Bailey’s testimony.
Here’s a brief summary of the issue.
Chief U.S. District Judge Mark E. Fuller in Montgomery had briefly questioned jurors in the case, after e-mails came to light, and asked vague questions about whether they violated his charge not to read news coverage and communicate with each other illegally. All the jurors denied it.
A brief Postal Inspector report concluded that the e-mails were not authentic, but that investigation was not revealed to the defense team.
Based upon their questioning, the judges clearly assumed that the e-mails were indeed authentic, which means they must be thinking that juror misconduct was involved. If the jurors said under oath they did not engage in the online communications, and the e-mails are real, that is an automatic basis for a mistrial.
If the judges avoid the political morass of the other issues and send the case back to Montgomery on that basis alone for an investigation, the issue will then become: Will the appeals court send the case back to Judge Fuller, who is alleged to have a conflict of interest in the case?
Legal experts agree that is doubtful, so most expect the judges to overturn the guilty verdicts on one of the other issues. There is no solid indication how long that could take. Federal judges, especially in the South, have a long history of taking their time.
For a summary of all the legal issues important to the appeal, see this story from Nov. 15.
Additional Coverage
NYT: Appeal Hearing in Ex-Governor’s Conviction
AP: Attorneys Say Reverse Siegelman, Scrushy Verdicts
TNews: Appeals Court Must Dismiss Siegelman Case
Former Alabama Governor Don Siegelman with his wife Lori outside the Eleventh U.S. Circuit Court of Appeals building in downtown, Atlanta.
December 10th, 2008 at 8:48 am
From Sweets, via e-mail:
Those are great pics of Don. He looks good. I am happy for him and his family. We will pray that true justice will be served to those who need it the most.
December 10th, 2008 at 9:12 am
From a former journalist, via e-mail:
Good job on the Don story. Would have liked to be there. Yeah, I think they have to throw it all out.
Your analysis was the best of all.
December 11th, 2008 at 6:53 am
Excellent on-the-scene Locust Fork coverage and context!