Siegelman Files Motion Asking for New Trial
June 30th, 2009 |
| Glynn Wilson |
| Former Alabama Gov. Don Siegelman in Atlanta for his appeal hearing Dec. 9, 2008 |
ANALYSIS
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.
Scrushy Asks Judge for New Trial in Bribery Case
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.
June 30th, 2009 at 11:43 am
How long can the court system continue to ignore these facts?
June 30th, 2009 at 12:23 pm
As long as Davis is running for governor and Sessions sits on the Senate Judiciary Committee.
Sources say Davis has given Sessions veto power over judicial nominees in Alabama, and we all know how important that Middle District federal courthouse is to the intel/military industrial complex in Alabama — and the U.S.
June 30th, 2009 at 12:30 pm
If this case was political from the outset, it will be won or lost on the politics, not the law. The 11th Circuit has already ruled in the appeal, and no one puts much faith in the Roberts Supreme Court to take this case up and reverse it. There’s no hard indication Sotomayor would be much help, if confirmed.
June 30th, 2009 at 5:01 pm
The bomb for me was the two new witnesses concerning the Bailey testimony.
June 30th, 2009 at 5:15 pm
Why hasn’t Karl Rove, who is the fly in all this ointment, been FORCED to appear to fulfill his Congressional subpoena to testify in the illegal attorney firings?
Doesn’t Congress have the power to clap him in irons and frog march him into chambers, and to testify ubder oath?
Why haven’t they done this seemingly simple thing?
June 30th, 2009 at 5:16 pm
..make that: under oath.
June 30th, 2009 at 5:20 pm
If you read my coverage from Washington the other day, Rowland, you will see this is coming up. Watch the C-SPAN video. I grilled the House Judiciary Committee guy on this very point.
June 30th, 2009 at 5:46 pm
I cannot help wondering what is going through the judge’s mind right now. Are these the only 3 choices: Refuse, recuse hoping that another judge will refuse, or allow a new trial? I doubt that any of these will sound palatable to the judge considering all the circumstances surrounding the case, including the Paul Weeks affidavit.
June 30th, 2009 at 6:33 pm
So far, Fuller has not shown any concern whatsoever about justice, or any potential consequences to himself.
Remember what he said when he issued that dynamite charge to the jury and made them keep trying to reach a verdict over the weekend? “I’ve got a lifetime appointment…”
I find it hard to believe that Fuller will cooperate in any way in granting a new trial or recusing himself, since he has the cover of the Newhouse press and the Alabama AP bureau and since the mass public in Alabama just figures due to their reporting that Siegelman and Scrushy are guilty of “something,” or they would not have been investigated in the first place.
I’ve had this conversation with a number of what you might call Average Joe’s around the state, and they just cannot believe that a court would convict someone for shear political reasons. Of course if it happened to one of theirs, a conservative Republican, they would line the streets of Montgomery with their pickup trucks and shotguns in the back window.
But Siegelman is a liberal Democrat, they say, so who cares what happens to him? Chuckle, chuckle…
As for Scrushy, the same holds true. People especially around Birmingham hate him and think he deserves to spend the rest of his life in jail and lose his entire fortune, and they could give a hoot which law he was convicted of breaking to put him away.
These same people who don’t care if justice is just are the same people who could care less if America tortures Arabs in foreign prisons, even if they are innocent.
I fault the press in this state as much as any other institution for the perpetuation of these attitudes. That’s why I’m trying to create an alternative…
June 30th, 2009 at 7:49 pm
with the trial that paul weeks was involved with, my understanding is that he asked fuller to recuse but he refused and then weeks went to the 11th where the recusal was granted without comment. Is it possible that if Fuller refuses (as we assume he will) that the motion can be appealed to the 11th? That could open a can of worms regarding the weeks recusal of several years earlier.
June 30th, 2009 at 7:54 pm
Regarding your comments about the Newhouse papers in Bhm, Huntsville and Mobile, it occurred to me that, to my knowledge, other than these three papers not a single other media outlet throughout the nation either states the belief that the two men received a fair trial or presents stories favorable to the prosecution. Perhaps there are some but I have not come across them.
June 30th, 2009 at 7:55 pm
Maybe that’s the plan. Comments welcome from lawyers; phone calls too. So far Vince seems to only like AP’s Bob Johnson, unless I chase him down by phone. And as many times as I have tried to get Redding Pitt to call me, he never does : )
June 30th, 2009 at 8:20 pm
somehow i have the sense that there definitely is a plan LOL; maybe they are backing the ole judge into a corner.
June 30th, 2009 at 8:25 pm
Yeah, from what I understand, The United States Air Force was heavily involved in the prosecution. An independent contractor who Leura Canary hired to manage the case was living at Maxwell Air Force Base and using Air Force and OSI assets to conduct his investigation. Apparently the US Air Force OSI has a special mandate to conduct political investigations. At Navy OCS in Penasacola, Florida, security clearance investigations for Naval Officers are conducted by a detachment of US Air Force OSI from Maxwell Air Force Base and not Navy NCIS or Naval Intelligence as one would assume. It’s the same with civilian military contractors, The US Air Force runs the checks. I guess it’s got something to do with the Dixie Mafia nexus in the area.
June 30th, 2009 at 8:35 pm
The US Air Force has way too much power in Montgomery, Alabama. People spend decades working for The State of Alabama only to have the promotions they deserve given to freshly retired Air Force Colonels who know nothing about Alabama or its laws. Do you know what happens if you retire from State Government and apply for a civil service job with The Air Force? They laugh at you. Those jobs are all reserved for former active duty military, their spouses and VIPs.
June 30th, 2009 at 8:37 pm
I’ve had my own dealings with the boys in Pensacola. Remember the EMPRESS II, 1992. Thank you dick Shelby, then a Democrat, for slashing that $78 million line item in the Defense budget…
But no thanks to Lee Lerner, a free-lance CIA guy, who got himself hired as my editor at Gulf Coast Newspapers and ruined that fine little chain of real newspapers forever…
July 1st, 2009 at 8:54 am
I trust that after Don is cleared civil lawsuits will be filed against a host of folks asking many millions in damages. That’s the least that needs to happen, of course. Proven prosecutorial misconduct and/or misconduct by a sitting judge are criminal offenses, are they not?
This is a case where the wrong people went to jail, sent there by the people who probably ought to go jail.
July 1st, 2009 at 10:38 am
Not sure what will happen about all of that, but one thing is clear. The Democrats do not play hard ball politics as well as the Republicans. They still seem to think law books matter in the courts now dominated by Bush appointees from the Federalist Society.
And they called Jill Simpson a “true believer…”
July 1st, 2009 at 5:46 pm
Today, I started thinking about the motion’s new references to Tamarah Grimes. I did not recall from her earlier disclosures anything concerning the prosecutors’ treatment of Nick Bailey. Instead, the earlier disclosures had focused on Canary’s recusal and improper jury contact.
I just looked back at the motion and lost my breath when I read what I had missed yesterday. The new accusations were included in a letter from Grimes to Eric Holder on June 1, 2009. (I assume the letter had to be shared with the defense and prosecution.) Given his recent action in the Stephens trial, it would be absolutely immoral of Eric Holder to ignore this case any longer.
July 6th, 2009 at 10:58 am
Watch this trend, Glynn. Electronic records like e-mail and text messages are revolutionizing white collar investigations and defense.
What do you think?
– Ben
July 6th, 2009 at 11:36 am
What do I think? I guess I would have to more about what side you come down on and what your point is about this specific case and investigation.
July 7th, 2009 at 10:59 am
Previously I mentioned three possible responses by the judge, but I forgot another possibility:
“or, in the alternative, granting his simultaneously
filed discovery request and setting this motion for an evidentiary hearing”
This would certainly make some sense for the judge, since this would require the prosecutors to do the dirty work.
July 21st, 2009 at 2:49 pm
[...] Amendment right to “equal protection” under the law. Glynn Wilson, a former New York Times reporter smartly analyzed the brief in summary here in late [...]