by Roger Shuler
Mark Fuller, the federal judge who oversaw the federal court trial of Don Siegelman, committed fraud on the court by failing to disclose his bias against the former Alabama governor, meaning the judgment against Siegelman and co-defendant Richard Scrushy should be vacated, says an attorney who has conducted extensive research on Fuller’s legal and business activities.
“The evidence is clear to me that Judge Fuller failed to disclose his bias in the Siegelman case and committed fraud on the court,” said Paul Benton Weeks, an attorney in Springfield, Missouri. “It is an example of what the Supreme Court has called an ‘inexcusable’ failure of a judge to remove himself from a case.”
Weeks spoke at a media teleconference this morning as a follow up to an investigative report by veteran attorney and journalist Andrew Kreig that was published last Friday at Huffington Post. Kreig reports that Weeks is initiating a renewed call for impeachment amid allegations that Fuller tried to defraud an Alabama pension system and earned millions of dollars from military contracts during the Bush administration.
Weeks said he uncovered Fuller’s misconduct with the assistance of Gary McAliley, a Siegelman appointee who took over as district attorney for two south Alabama counties after Fuller was named to the federal bench by George W. Bush.
“Fuller was deeply concerned that McAliley was going to indict him,” Weeks said. “When that concern passed, Fuller became determined to stay on the Siegelman case because he wanted revenge.”
Weeks compared Fuller’s actions in the Siegelman case to those of a Louisiana judge in Liljeberg v. Health Svcs. Acq. Corp, 486 U.S. 847 (1988). Liljeberg involved ownership of St. Jude Hospital in Kenner, Lousiana. Loyola University had an interest in the hospital, and the judge who heard the case was a Loyola trustee. The judge failed to disclose his relationship to Loyola, and the Supreme Court ruled that was grounds for vacating the judgment in the case.
“If a judge knows something that others in the case don’t know, and it would cause an appearance of bias, he has an obligation to identify it and get out of the case,” Weeks said. “The Supreme Court said in Liljeberg that the judge’s failure to do this was inexcusable.”
Weeks said Fuller’s actions also raise issues that were addressed in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944). That case involved a fraud on the court that was discovered years after the judgment had been entered. The Supreme Court found that such a fraud required the judgment to be set aside.
Fuller’s actions in the Siegelman case rise to the level of a fraud on the court, Weeks said. What is fraud on the court? Here is how one court described it:
Fraud on the court is fraud which seriously affects the integrity of the normal process of adjudication. Gleason v. Jandrucko, 860 F.2d 556, 559 (2nd Cir. 1988). It involves far more than an injury to an individual litigant or a case of a judgment obtained [simply] with the aid of a witness who, on the basis of after-discovered evidence, is believed to possibly to have been guilty of perjury. Id. (citations omitted) (alteration in original). The concept embraces that species of fraud which does or attempts to, defile the Court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases presented for adjudication. Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2nd Cir. 1972) (quoting 7 MOORES FEDERAL PRACTICE ¶60.33, at 515 (1971 ed.).26
The court goes on to describe the elements of a fraud on the court:
The Sixth Circuit has ruled that the elements of fraud upon the Court consists of conduct:
1. On the part of an officer of the Court;
2. That is directed to the judicial machinery itself;
3. That is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth;
4. That is a positive averment or is concealment when one is under a duty to disclose;
5. That deceives the court.
Fuller was an officer of the court in the Siegelman case and concealed a bias that he was under duty to disclose. That, Weeks said, constitutes a fraud on the court.
Weeks first became interested in Fuller when the newly confirmed judge was assigned in 2002 to Murray v. Scott, a class-action lawsuit in which Weeks represented a plaintiff.
Weeks said his investigation showed that, while a district attorney in south Alabama, Fuller had attempted to defraud the Retirement Systems of Alabama out of approximately $330,000 on behalf of one of his employees. The fraud, Weeks said, was an attempt to reward the employee for handling many of the DA’s duties while Fuller was in Colorado overseeing Doss Aviation, a company of which he is majority owner.
The investigation, Weeks said, convinced him that Fuller “should not be on the federal bench — or any bench.”
Weeks compiled a lengthy affidavit, which included a sworn statement from Siegelman appointee McAliley, and that quickly led to Fuller’s recusal from the Murray case.
But Weeks did not forget about the Alabama judge. In fall 2007, he read about the Siegelman case and saw that Fuller was handling it. That set off alarms in Weeks mind.
“When word got out about Fuller’s misconduct as DA, he said they were coming after him for political reasons,” Weeks said. “Well, he was referring to Gary McAliley, a Siegelman appointee.
“It was not humanly possible for Fuller to then objectively preside over the Siegelman case in a fair and objective way.”
Weeks’ concerns led him to make his affidavit publicly available in fall 2007. And they have led him to speak out now.
“After the investigation, I was convinced that Fuller was a danger to the federal judiciary,” Weeks said. “He had no sense of right and wrong, no respect for the public, and certainly no respect for the law.”
Originally published in the Legal Schnauzer blog, reprinted here with permission.
