|Former Alabama Gov. Don Siegelman in Atlanta for his appeal hearing Dec. 9, 2008|
by Glynn Wilson
Former Alabama Governor Don Siegelman has filed a motion in federal court asking for a new trial based on the emergence of new evidence uncovered since his conviction along with his co-defendant Richard Scrushy.
According to the court document, available here, his motion largely copies the document filed by Scrushy’s attorneys last week.
After a full reading of the motion, these are the main points.
Siegelman’s lawyers are accusing the federal prosecutors of blatant misconduct, including the manipulation of testimony from key witness Nick Bailey, improper contact with jurors and failure to disclose key documents to the defense, thus denying Siegelman and Scrushy a fair trial under the Fifth and Sixth Amendments to the U.S. Constitution.
The motion demands an immediate evidentiary hearing to explore improper communications between the prosecutors and the jury and between prosecutors and the judge not disclosed to the defense team.
We have covered the issue of the provacative e-mails before. We said then and we’ll say again now. If the jury was reading news coverage online and communicating about that through e-mail, this case should have automatically been declared a mistrial. The very idea that Siegelman, a white collar defendant even the government said was no flight risk, was shackled off to jail the day of the sentencing hearing by a judge who knew there was improper jury communications going on is by itself a travesty of justice.
We also broke the story and have reported several times that U.S. Attorney Leura Canary never formally filed a recusal motion in the case, in spite of the press release bought hook line and sinker by the Newhouse press in Alabama.
Siegelman’s attorneys, thanks to Scrushy’s attorneys apparently, have now figured out a new way to use this information in asking for a new trial. The motion says Canary’s failure to abide by her promise to recuse herself deprives Siegelman and Scrushy of the right of a “disinterested prosecutor.”
Canary, of course, is the wife of Bill Canary of the conservative Business Council of Alabama. He is an old friend of Karl Rove who worked for George Bush Sr., and he was heavily involved in Gov. Bob Riley’s campaign to unseat Siegelman in 2002 and Riley’s reelection run in 2006. She clearly did not totally recuse herself or set up a so-called “firewall” between herself and the prosecution team, since she is caught in e-mail messages monitoring the case and communicating with prosecutors by a whistle-blower who worked in her office.
In the motion, attorneys also accuse the Bush Justice Department and the court of a coverup of her involvement. It documents questionable financial incentives given to prosecutors Steve Feaga and Lous Franklin, as well as FBI agents, to obtain a conviction in the case.
The motion goes on to say that Siegelman was the subject of a “selective prosecution” for “political purposes,” a theme of our coverage for the past two years. In legal terms, this would deprive Siegelman of his Fifth Amendment right to “equal protection” under the law.
Also, to the best of our knowledge, this is the first time Siegelman’s legal team has acknowledged in a brief the likely role of former Bush political adviser Karl Rove in communicating with Justice Department officials in the case against him, and the first time they have mentioned the affidavit of whistle-blower Jill Simpson.
If this case was political from the outset, and there is substantial evidence to indicate that it was pursued specifically to prevent Siegelman from winning the Democratic Party primary in 2006 and facing Riley in the general election, then the manipulation of the case from the White House would constitute an illegal involvement in a federal criminal case by the executive branch.
The motion mentions, as we reported just the other day, that Karl Rove is scheduled to give sworn testimony to the House Judiciary Committee very soon in its ongoing investigation of the case.
The motion for a new trial also cites a House Judiciary Committee report which documents political prosecutions across the country by the Bush administration. It also cites the letter written by retired federal judge U.W. Clemon to Attorney General Eric Holder asking for an investigation.
Evidence of the failure of the Middle District to investigate or prosecute Republicans such as Senator Jeff Sessions who were mentioned by witnesses used by the prosecution in the case against Siegelman, a Democrat, is also cited as grounds for a charge of “selective prosecution.”
Pressure by the prosecutors on Nick Bailey resulted in the creation of a notebook where he worked on the wording of his testimony and rehearsed it to the satisfaction of the U.S. attorneys to obtain a lighter sentence for himself. Yet according to the motion, that notebook was never revealed to the defense team and would constitute key impeaching evidence in the case. The discovery of such a notebook, where at one point Bailey supposedly wrote “bullshit” in the margin, would provide evidence of prosecutorial misconduct.
The motion cites the Obama Justice Department’s decision to drop all charges against Alaska Senator Ted Stevens for “flagrant violations” of prosecutors withholding evidence from the defense.
“There are too many of such violations in … Siegelman’s case to ignore,” the lawyers write. “This court must act to determine whether such violations did in fact occur.”
This motion also indicts the U.S. Marshals Service and Chief U.S. District Judge Mark E. Fuller for ex parte communications on the “secret” investigation of the improper juror e-mails. The only time the courts have allowed communications between a judge and investigators unbeknownst to the defense team have historically involved “state secrets” and “national security.”
(It might be worth noting here, and you won’t see this reporting in the Newhouse press, that Fuller probably figured he had a right to do this, since he clearly has ties to defense-intelligence agencies by virtue of his status as a defense contractor who had an address at the federal courthouse in Montgomery before he was appointed to the judgeship by President George W. Bush).
The motion also argues that Scrushy had a First Amendment right to donate $500,000 to Sielman’s education lottery campaign. To call that a quid pro quo bribe, when no proof was offered that Siegelman or Scrushy benefited personally from the contribution, would jeopardize every public official’s First Amendment rights in every political setting around the country.
© 2009 – 2011, Glynn Wilson. All rights reserved.