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Tuesday, June 30, 2009

The Cheating of Don Siegelman, Part IV

We have shown that the U.S. 11th Circuit Court of Appeals screwed up its ruling on the Don Siegelman case in three critical areas: the statute of limitations, the elements of bribery, and jury instructions.

But we are not finished with the 11th Circuit's butchery of the Siegelman matter. The appellate court also erred in the murky area of hearsay.

In my efforts to gain a layman's knowledge of the law, I've found that the rules of evidence regarding hearsay can be baffling. I suspect many lawyers don't fully understand it, so I'm certainly not going to claim to be an expert. But our review indicates that Siegelman and codefendant Richard Scrushy were convicted largely because of improperly allowed hearsay.

What is hearsay? It is "second hand" evidence and generally not admissible. Here is one definition:


The hearsay rule is a rule of evidence which prohibits admitting testimony or documents into evidence when the statements contained therein are offered to prove their truth and the maker of the statements is not able to testify about it in court. Hearsay is "second-hand" information. Because the person who supposedly knew the facts is not in court to give testimony, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine him or her. Therefore, there is a constitutional due process danger that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something.

There are a number of exceptions to the hearsay rule, and one of those played a key role in the Siegelman convictions. It is called the "coconspirator exception," and it applied to statements attributed to former HealthSouth lobbyist Eric Hanson.

The evidence came in testimony by former HealthSouth executive Mike Martin, who said that Hanson bragged at the Healthsouth annual retreat “that he was able to get us a spot on the CON Board with the help of the Integrated check."

Hanson was not a witness, so this normally would be clear hearsay. But the government argued that Martin's statement should be allowed under the coconspirator exception. U.S. District Judge Mark Fuller allowed the statement, and it proved to be crucial.

How important was it to the prosecution? Consider this statement from Siegelman's appellate brief:


This statement attributed to non-witness Hanson was crucial to the prosecution’s case--so crucial in fact that the prosecution relied on it in the short rebuttal portion of its closing argument, the last argument before the jury retired to deliberate. It was, in the prosecutor’s eyes, the knock-out punch.

Martin's statement, however, did not meet the three-pronged test for an exception to hearsay. The second prong in that test states:

(2) the conspiracy included the declarant and the
defendant against whom the statement is offered;

Did the conspiracy include the declarant, Mike Martin? Possibly. But did it include Don Siegelman? The answer appears to be no.

The statement attributed to Hanson is about efforts by HealthSouth personnel to obtain a check. But there was no evidence that Siegelman was involved in that effort, or any other effort involving Eric Hanson.

Under a liberal interpretation of the coconspirator exception, the exception might have been proper against codefendant Richard Scrushy, who was then HealthSouth's CEO. After all, Hanson was talking about an effort within HealthSouth to arrange funding. But there is no indication that any alleged conspiracy reached beyond HealthSouth to include Siegelman.

Here's a question that a reasonable layperson might ask: If Hanson's testimony was so important, why didn't the prosecution call him as a witness? Why did it rely on the secondhand testimony of Mike Martin?

Did the government perhaps know that Martin's words were not an accurate account of what Hanson said? Is it possible that prosecutors didn't bother calling Hanson because they knew they would get a favorable ruling on hearsay from Fuller?

Is it possible that Siegelman and Scrushy are headed to prison for possibly the rest of their lives because of testimony that should have been excluded?
(To be continued)


Previously . . .

* Here Is How An Appellate Court Cheated Don Siegelman

* The Cheating of Don Siegelman, Part I (statute of limitations)

* The Cheating of Don Siegelman, Part II (fundamentals of bribery)

* The Cheating of Don Siegelman, Part III (jury instructions)

Can We Americans Learn Something From the Crisis in Iran?

I've been a typical American dolt when it comes to the post-election unrest in Iran.

I didn't really get upset about anything until I read an early story about the shooting death of 26-year-old protester Neda Agha-Soltan. The article included a photo of Neda, and my first reaction was, "God, she was cute. What a shame." (As if it would have been less tragic if she hadn't been a babe.)

Thankfully, two prominent American journalists recently wrote articles that educated me about what is going on in Iran--and helped me understand that the crisis hits much closer to home than I realized.

For as long as most Americans can remember, Iran has been a mess. When I was a student at the University of Missouri in the 1970s, I often saw Iranian students protesting and shouting, "Down with the Shah!" I couldn't understand what they were saying at the time, so I figured they must be Sonny Bono fans, shouting, "Down with Cher!"

I was clueless then, and I'm only marginally better now about issues in Iran.

I suspect I'm not alone in my cluelessness. Many of my fellow Americans probably have caught a glimpse of protest footage in recent weeks and said something like, "That place is always screwed up--and it's so far away. What time does Dancing With the Stars come on?"

Thomas Friedman, of The New York Times, and Leonard Pitts, of the Miami Herald, helped bring me out of my American-made stupor about Iran recently.

Friedman pulls no punches when he says that Americans hold significant responsibility for the dysfunction that besets Iran. Our thirst for oil has helped unsettle Iran and its neighboring countries:

Oil is the magic potion that enables Iran’s turbaned shahs — “Shah Khamenei” and “Shah Ahmadinejad” — to snub their noses at the world and at many of their own people as well. President Mahmoud Ahmadinejad behaves like someone who was born on third base and thinks he hit a triple. By coincidence, he’s been president of Iran during a period of record high oil prices. So, although he presides over an economy that makes nothing the world wants, he can lecture us about how the West is in decline and the Holocaust was a “myth.” Trust me, at $25 a barrel, he won’t be declaring that the Holocaust was a myth anymore.

The price of oil and the pace of freedom, Friedman writes, are inextricably bound. That's why he advocates an immediate $1-per-gallon "Freedom Tax" on gasoline:


I believe in “The First Law of Petro-Politics,” which stipulates that the price of oil and the pace of freedom in petrolist states — states totally dependent on oil exports to run their economies — operate in an inverse correlation. As the price of oil goes down, the pace of freedom goes up because leaders have to educate and unleash their people to innovate and trade. As the price of oil goes up, the pace of freedom goes down because leaders just have to stick a pipe in the ground to stay in power.

Iran, Friedman points out, has hardly been the only country to build a dysfunctional society upon the whims of the oil market:

Exhibit A: the Soviet Union. High oil prices in the 1970s suckered the Kremlin into propping up inefficient industries, overextending subsidies, postponing real economic reforms and invading Afghanistan. When oil prices collapsed to $15 a barrel in the late 1980s, the overextended, petrified Soviet Empire went bust.

The next time a conservative tries to tell you that Ronald Reagan brought down the Soviet Union, you might want to hand them this Friedman column.

As for Pitts, he focuses on the role technology has played in bringing the Iranian crisis to the world at large. Pitts particularly notes the disturbing video, captured on a cell phone, of Neda Agha-Soltan's death.



Writes Pitts:

There is something ... electrifying in watching Neda Agha-Soltan, blood-streaked and prostrate on the sidewalk, dying on camera and knowing this moment has not been framed and contextualized by a blow-dried network news reporter but is, rather, the grief cry of some unknown person with a cellphone camera who is desperate for you to see what is happening, desperate for you to "know." It is a raw, person-to-person connection, and one is hard-pressed to imagine its equal in any other medium.

Pitts follows with words that should resonate in Iran, Alabama, Mississippi, or any other place where corruption reigns:


Were I at the head of some repressive regime, I would watch with trepidation. Once upon a time, it was easy to impose the darkness necessary for evil deeds. But in a world where people now have means of linking to one another beyond government strictures and structures, darkness is much harder to come by.

As you doubtless know if you were there when Neda died.

Monday, June 29, 2009

The Cheating of Don Siegelman, Part III

We already have shown that the U.S. 11th Circuit Court of Appeals botched its Don Siegleman ruling on two key issues: the statute of limitations and the fundamentals of bribery law.

Let's now turn our attention to the jury instructions in the Siegelman case.

To put it simply, the trial court gave jury instructions that were wrong, that did not accurately reflect the law. The 11th Circuit's opinion essentially admits this. But the appellate judges seem to be saying, "What the hell, the instructions were in the ballpark. That's all that's needed. And nothing much is at stake here anyway. Only two men, who committed no crime, possibly going to prison for the rest of their lives. Let it rip. Next!"

So much for "guilty beyond a reasonable doubt." In this case, thanks to bogus jury instructions, Don Siegelman and Richard Scrushy were convicted of a phantom crime, one that doesn't exist under the law.

Here's what's so wacky about reviewing this case: The 11th Circuit and Siegelman's team agree that McCormick v. United States is the controlling law. And they agree on what McCormick says. The 11th Circuit even correctly cites what the law is, noting that the Supreme Court requires "more for conviction than merely proof of a campaign donation followed by an act favorable toward the donor." The 11th Circuit goes on to state:

To avoid this result, the Court made clear that only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.”

That's what the jury instruction should have been. But both the 11th Circuit and the Siegelman team, citing from the official record, say that's not what it was.

Here is how the jury instruction on bribery read, in pertinent part:

A Defendant does not commit a crime by giving something of value to a government official unless the Defendant and official agree that the official will take specific action in exchange for the thing of value.

As you can see, the instruction given by trial judge Mark Fuller did not require an explicit agreement. And it's not a correct statement of the law. In fact, it's not even all that close.

The Siegelman team points out the fundamental problem of Fuller's jury instruction on bribery:

The flaw here . . . is that the trial court did not tell the jury that the quid pro quo agreement had to be explicit. Instead the instruction allowed the jury to believe that an implied-in-fact “agreement,” in the sense of the existence of parallel though unspoken expectations, was enough to make out the crime. But in cases where the McCormick standard applies, as we have shown, unspoken and inferred mutual expectations would not be enough.

The 11th Circuit blithely claims that a quid pro quo instruction was given. But the McCormick standard of an "explicit" agreement, which the 11th Circuit admits multiple times is the controlling law, clearly was not given.

And the 11th Circuit ignores its own binding precedent, U.S. v. Davis, 30 F.3d 108 (11th Cir. 1994), which was decided three years after McCormick.

The finding in Davis, which originated in the Northern District of Alabama, could not have been more clear:

Because the district court failed to charge Davis's jury as to the necessity of finding an explicit promise before the jury properly could convict--and indeed informed the jury that ‘a specific quid pro quo is not always necessary for a public official to be guilty of extortion’--appellant's conviction is due to be REVERSED and the case REMANDED to the district court for further proceedings consistent with this opinion.

J.L. Edmondson, one of the three judges on the Siegelman panel, also was on the Davis panel. How's that for irony? Edmondson apparently gets a kick out of contradicting himself.

The 11th Circuit apparently tries to muddy the waters by citing Evans v. United States, 504 U.S. 255, 258 (1992). In Evans, the 11th Circuit writes, the Supreme Court approved the following jury instruction and said it satisfied the quid pro quo requirement of McCormick:

However, if a public official demands or accepts money in exchange for [a] specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the [federal extortion statute] regardless of whether the payment is made in the form of a campaign
contribution.

The 11th Circuit's reasoning, however, has several flaws:

* The Supreme Court said the jury instruction in Evans was "sufficient." But that's not the jury instruction that Fuller gave in the Siegelman case. So Evans doesn't apply.

* It's unclear in the Evans case if the alleged bribe was considered a campaign contribution. Evans claimed that it was, but appellate documents do not make it clear that indeed it was. It's undisputed that the Scrushy donation in the Siegelman case was a campaign contribution. Again, Evans is not apposite to the Siegelman case.

* Evans did not challenge the need for jury instructions that required an "explicit" agreement; that was never an issue in his appeal. He challenged the jury instructions on other grounds. Again, Evans is not apposite to the Siegelman case.

* Evans is a strange case, which came from a badly divided Supreme Court. It seems similar to the 2000 Bush v. Gore ruling, in which the court said its holdings applied only to the case before it, not subsequent cases. Nothing in the Evans' opinion indicates that it overruled McCormick.

* In fact, Evans clearly did not overrule McCormick. As the Siegelman team shows, the 1994 Davis opinion, by the 11th Circuit, overturned a trial-court finding because the jury instructions did not meet the McCormick standard for an "explicit" agreement.

How to describe the 11th Circuit's action, when it can't even agree with its own earlier rulings? The word "duplicitous" comes to mind. The three-judge panel is engaging in clear double talk, and the justices aren't all that artful about it.

To sum it up, they say:

* McCormick, as Siegelman contends, is the controlling law;

* McCormick, as Siegelman contends, requires an "explicit" agreement for a conviction on federal bribery charges;

* The trial court's jury instructions are not the same as the McCormick standard--in fact they aren't even all that close--and the 11th Circuit's own opinion makes this clear.

* In spite of this, the 11th Circuit essentially says, "We're going to let it go anyway. And we're going to try to confuse you by throwing the Evans case into the fray."

So, we've shown that the 11th Circuit screwed up the Siegelman appeal on three critical issues. Are we done? Oh no, there is more to come.

(To be continued)

Previously . . .

* Here Is How An Appellate Court Cheated Don Siegelman

* The Cheating of Don Siegelman, Part I (statute of limitations)

* The Cheating of Don Siegelman, Part II (fundamentals of bribery)

Sunday, June 28, 2009

Political Prosecutions Hit the National Spotlight

Investigations are ongoing into the politicization of the justice system under the Bush administration, and a date has been set for Karl Rove's Congressional testimony, an aide to the U.S. House Judiciary Committee said on Friday.

Elliot Mincburg, chief counsel for oversight investigations of the House Judiciary Committee, was one of the primary speakers at a National Press Club forum on political prosecutions.

Mincburg talked primarily about the current status of injustice in America. Birmingham's U.W. Clemon, the first black federal judge in the South, talked about our history of injustice--and provided much of the forum's drama.

David Swanson, of AfterDowningStreet.org., produced a live blog from the forum.

Glynn Wilson, of the Locust Fork News-Journal, was on hand to cover the event and said Mincburg indicated the committee was not influenced by the Obama administration's "look forward, not backward" approach to Bush-era wrongdoing:

In response to my direct questions about when Karl Rove will be called to testify and the controversy over whether his testimony will be fully on the record and subject to contempt laws, Mincberg said a date has been set, but he could not reveal it. He insisted the committee will fully probe Rove on the record in a transcribed deposition that will make him subject to perjury if he lies to Congress. He insisted the deposition will be released to the public when the time comes just like the testimony of other witnesses, including Alabama attorney Jill Simpson’s, who made the trip to Washington for the forum. And he said that might very well lead to public hearings.

Wilson reports that the investigations are wide ranging, touching on a number of hot-button issues during the Bush years:


Mincberg said investigations are continuing on several fronts. At the top of the list is the “unprecedented” firings of U.S. attorneys by the Bush administration, including Republican lawyers who refused to investigate Democrats. Political hiring by the Department of Justice is also on the list of investigations, where the right-wing Federalist Society was used to screen candidates instead of professional, career prosecutors.

The committee is also looking at the Bush administration’s torture policies and massive warrantless wiretapping of American citizens with no connection to overseas terrorists.

In direct response to my question, Mincberg would not confirm a recent report in the New York Times that showed the domestic spying continues “due to classification restrictions.” He said the issue is on the committee’s agenda and “we are very concerned about that.”

The issue of selective prosecutions is also on the list of investigations, where Republican U.S. attorneys prosecuted Democrats and ignored the crimes of Republican office holders, crimes which were far worse in many cases. Abuse by the FBI in issuing national security letters in the so-called “war on terror” is on the list, as well as problems with the Civil Rights division of the Justice Department, the renewal of The Patriot Act, along with state secrets and CIA renditions of suspects without warrants or due process.

Clemon held a front-row seat for a number of politically charged cases during his long career. But he said nothing compares to the abuses he witnessed during the George W. Bush administration:


Retired Chief U.S. District Judge U.W. Clemon of Birmingham, the first African-American federal judge in the South, said in his remarks to the press club and in an interview that while in his life he has faced down the likes of Bull Conner as a college student, Paul “Bear” Bryant as a civil rights lawyer, and George Wallace as a state senator, nothing can compare to the abuses of people’s rights that occurred during the Bush years. He indicated that his home town newspaper, The Birmingham News, has always been on the wrong side of history in the fights for justice.

Clemon wrote a letter to Obama Attorney General Eric Holder, asking for an investigation into the prosecution of former Alabama Governor Don Siegelman. Clemon and Holder also have talked about the matter, with some encouraging signs:


Clemon said he recently talked to President Barack Obama’s Attorney General Eric Holder after writing a letter to him asking for an investigation into Siegelman’s prosecution, and he said Holder assured him there would be a “full investigation” by the Obama Justice Department.

Thursday, June 25, 2009

The Cheating of Don Siegelman, Part II

In Part I of our series, we showed that a three-judge panel of the U.S. 11th Circuit Court of Appeals got it wrong regarding the statute of limitations in the Don Siegelman case.

Now we will show that the appellate panel got it wrong on the fundamental tenets of bribery law.

I don't think I've ever read of any portion of the Siegelman case described as comical. But it's almost funny to read the 11th Circuit's pathetic attempt to split hairs on the Siegelman appeal.

The judges go on an extended discourse about the subtle differences between two words--"explicit" and "express." In fact, you could make a strong argument that Siegelman and codefendant Richard Scrushy might be headed to federal prison for the rest of their lives because of the way three Republican judges interpret those two words.

But when you look at the full picture, as we have endeavored to do, you realize the three judges are full of that stuff you try not to step in when walking in a barnyard.

The critical case law in the Siegelman appeal is McCormick v. United States, 500 U.S. 257 (1991). A discussion of that case is what leads the 11th Circuit into its "explicit vs. express" soliloquy. It's also where the 11th Circuit goes badly off track.

It gets off to a solid start by correctly stating that McCormick "made clear that only if 'payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.'"

The court acknowledges that this is the quid pro quo ("something for something") required by law. So far, so good.

But then comes this:

Defendants, however, assert that the instruction was inadequate under McCormick. Defendants assert that the instruction failed to tell the jury that not only must they find that Siegelman and Scrushy agreed to a quid pro quo, the CON Board seat for the donation, but that this agreement had to be express. We disagree that McCormick requires such an instruction.

There's only one problem with the court's assertion that the Siegelman team argued that the agreement must be "express." It isn't true.

By my unofficial count, the Siegelman appellate brief argues at least a dozen times that the agreement must be "explicit." Here is just one example:

To recognize the correctness of our argument on this point, it is useful to begin with McCormick v. U.S., 500 U.S. 257, 111 S.Ct. 1807 (1991). There, the Supreme Court read the extortion statute, 18 U.S.C. § 1951, in precisely the way that we are suggesting that the present statutes ought to be read as well. Recognizing that campaign contributions are a constant in the real life of politicians, the Court held that a link between such a contribution and an official act would constitute the crime of extortion only if there was an “explicit quid pro quo.” Id., 500 U.S. at 271 & n.9, 111 S.Ct. at 1815 & n.9 (formulating the question in that way); 500 U.S. at 273, 111 S.Ct. at 1816 (“only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”). The Court held that if the Congress wanted to criminalize conduct short of that, conduct that “in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures,” Congress would have to be explicit about it. 500 U.S. at 272-73, 111 S.Ct. at 1816.

Over and over, the Siegelman team makes the same argument, quoting directly from McCormick: The agreement must be "explicit."

Never does the Siegelman team do what the 11th Circuit claims it does: assert that the agreement must be "express."

By my count, the core portion of the Siegelman brief uses the word "express" twice. Once, it's a parenthetical, almost throwaway, use. Here it is:

The Court was thus speaking overtly in terms of explicit, express, promises and agreements.

On another occasion, the brief states that a prominent law dictionary says the two words are interchangeable. But never does the Siegelman brief argue that the agreement must be "express" instead of "explicit"--or even "express" in addition to "explicit."

The Siegelman brief mentions the word "express" only in terms of paraphrasing. Contrary to what the 11th Circuit claims, that is not its core argument. Its core argument is based on a word-for-word recitation of McCormick, which the 11th Circuit admits is the controlling law. In fact, after its one primary use of the word "express," the Siegelman team comes right back with this:

The criminally-prohibited situations, said the Court, are those in which there is an “explicit promise or undertaking” by the official to act in exchange for the contribution, in which “the official asserts that his official conduct will be controlled by the terms of the promise or undertaking.” Id., 500 S.Ct. at 273, 111 S.Ct. at 1816. To rise to the level of a crime, there must be a communication by the official, amounting to an overt promise or undertaking.

So there you have it. The Siegelman brief repeatedly cites McCormick and states, correctly, that the agreement must be "explicit." And the 11th Circuit takes one throwaway use of the word "express" and misstates the Siegelman argument entirely.

How to explain this curious reading by the 11th Circuit? I can only think of two explanations:

* One of the judges on the panel (James C. Hill) is 84 years old. Another (Gerald Bard Tjoflat) is 79. The whipper snapper of the group is 61-year-old J.L. Edmondson. Perhaps Hill and Tjoflat have lost their ability to read simple, clear language, and Edmondson was "out to lunch" on this opinion. Thus, we are talking about incompetence.

* The judges intentionally misstated the Siegelman argument as a way to get the result they wanted. Thus, we are talking about corruption.

As we will see in a moment, the "explicit vs. express" argument really didn't matter. That's because trial judge Mark Fuller's jury instruction didn't use either word.

In other words, Fuller's jury instruction did not cite the correct law--no matter how you slice it.

And the 11th Circuit is letting him get away with it.

(To be continued)

Previously . . .

Here's How An Appellate Court Cheated Don Siegelman (introduction)

The Cheating of Don Siegelman, Part I (statute of limitations)

Wednesday, June 24, 2009

The Cheating of Don Siegelman, Part I

We recently introduced our series of posts about the U.S. 11th Circuit Court of Appeals and its unlawful ruling on the Don Siegelman case. Now it's time to dive into the details. Here is part 1 of "The Cheating of Don Siegelman."

----------------------------

The U.S. 11th Circuit Court of Appeals cheated former Alabama Governor Don Siegelman in multiple ways. The most glaring example involves the statute of limitations, so we will start there.

It's undisputed that the government was tardy in bringing bribery charges against Siegelman and codefendant Richard Scrushy.

All of the activity that constituted the alleged bribery took place in summer 1999. But the government's original indictment was dated May 17, 2005. That's almost one full year past the five-year statute of limitations.

Even if Siegelman and Scrushy had committed the worst sort of bribery--and the facts and the law show that they didn't commit bribery at all--the government missed the boat by a long shot.

So how did prosecutors get away with this? First, they crafted a vague indictment that made it unclear when the alleged events took place. And U.S. District Judge Mark Fuller denied Siegelman's motion for a bill of particulars, which would have forced the prosecution to provide specifics.

That probably was the first clear sign that the fix was in on this case.

More importantly, prosecutors argued that Siegelman did not raise the limitations issue in the proper way, that he essentially waived that defense. Both the trial and appellate courts have agreed with the government.

But they are wrong. And here is why.

The 11th Circuit based its finding on two cases, neither of which is applicable to the Siegelman case.

One is United States v. Ramirez, 324 F.3d 1225 (11th Cir. 2003). Ramirez involved a limitations defense raised by way of a post-trial Rule 29 motion, the same method Siegelman's attorneys used. And the defense was rejected, as it was in the Siegelman case.

But here is where the cases differ: In Ramirez, the court found "when a statute of limitations defense is clear on the face of the indictment and requires no further development of facts at trial, a defendant waives his right to raise that defense by failing to raise it in a pretrial motion.”

Ramirez does not apply to the Siegelman case because the limitations defense was NOT clear on the face of the indictment. In fact, the indictment in the Siegelman case said the alleged crimes took place “[f]rom on or about July 19, 1999, and continuing through on or about May 23, 2000 . . .”

On its face, the indictment was unclear. It cites a first date that is way outside the statute of limitations and cites a second date that is inside the limitations period--barely. Fuller did not force the government to make the indictment clear, so Ramirez does not apply.

Of course, if Fuller had forced prosecutors to present a clear indictment, the case would have been over with an acquittal for Siegelman and Scrushy. And the judge certainly didn't want that. So he cheated them.

The 11th Circuit also cited United States v. Najjar, 283 F.3d 1306, 1308 (11th Cir. 2002) for its proposition that “the statute of limitations is a matter of defense that must be asserted at trial by the defendant and that failure to do so results in a waiver." The 11th Circuit says, "Other circuits agree," and proceeds to cite a number of other cases.

But the appellate panel got it wrong. The question in Najjar was this: Can a limitations defense be waived in a plea agreement? The Siegelman case had nothing to do with a plea agreement. Najjar does not address the same issues that are raised on the Siegelman appeal. As lawyers like to say, the two cases are not "apposite."

Other cases cited by the 11th Circuit involve instances where a limitations defense was raised for the first time on appeal. It's undisputed that raising such a defense for the first time on appeal is improper. But Siegelman did not do that.

He raised the defense in a post-trial Rule 29 motion, which the 11th Circuit has found is proper. In fact, those very circumstances were present in Phillips v. U.S., 843 F.2d 438, 441-43 (11th Cir. 1988). In Phillips, a motion was filed after trial, and the 11th Circuit ordered a judgment of acquittal based on the statute of limitations.

The Phillips court stated the following:

Statutes of limitations, both criminal and civil, are to be liberally interpreted in favor of repose. United States v. Marion, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468, 480 n. 14 (1971); United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055, 1059 (1968); United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932). In the criminal law area, such an interpretation protects the defendants' right to be free from defending against overly stale criminal charges. As the Supreme Court observed in Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161 (1970):

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.

On the Siegelman appeal, the 11th Circuit completely reversed itself, failing to follow its own precedent in Phillips.

And it butchered two fundamental legal concepts:

(1) Siegelman and Scrushy had to defend themselves against allegations that had become so obscure that the prosecution couldn't provide any specificity on the dates involved.

(2) The prosecution was lazy and tardy in its investigation--and federal judges let them get away with it.

How nuts is the 11th Circuit's finding?

Imagine that you are charged in your town with jaywalking, which has a one-year statute of limitations. You get to court and find that the prosecution's complaint doesn't say when you jaywalked, it doesn't say where you jaywalked, it doesn't say who witnessed you jaywalking.

You tell the judge, "How am I supposed to defend myself against this?" The judge says, "I don't know, but you're going to have to. Good luck."

That's essentially what Don Siegelman and Richard Scrushy faced. The prosecution failed in its duty at every step. And both trial and appellate judges let them get away with it.

This is scary stuff, folks. And there is more to come.

(To be continued)

Rats Are Scrambling Overboard on the Good Ship UAB

For the second time in the past eight months or so, a key character in my wrongful termination at the University of Alabama at Birmingham (UAB) has left the institution for what appears to be a lesser job.

The latest to jump ship is Gary Mans, who was director of public relations at UAB. Mans recently joined the communications staff at the University of Louisville, where he is director of the Health Sciences Center communications and marketing.

In late 2008, Director of Human Resources Cheryl E.H. Locke left UAB to take a job at Wake Forest University.

The jump to Louisville is a curious move for Mans to make. At UAB, he was in charge of campuswide public relations, on both the medical and non-medical sides of campus. His duties at Louisville cover only the medical side, so his responsibilities appear to have been cut in half.

Interestingly, Locke took a similar cut in responsibilities when she went to Wake Forest. She was head of the entire HR function at UAB, while she is based only in the medical center at Wake Forest.

Louisville seems to be a fine school, but its reputation in biomedical research does not match UAB's. In one of the most recent rankings of funding from the National Institutes of Health (NIH), UAB ranked No. 23 and Louisville was No. 78.

Mans' title at Louisville does appear to include more marketing responsibilities than he had at UAB, and he might have found that attractive. It would be interesting to know how the two salaries compare. On the surface, it looks like a lateral move, at best.

To my knowledge, Mans played only a peripheral role in my termination. After Lindsay Beyerstein's investigative piece about my firing came out at Raw Story, a number of citizens contacted UAB President Carol Garrison to express concern about the situation. A number of them received the following response from Mans, in Garrison's name:

President Garrison asked that I respond to you. Contrary to Mr. Shuler's statements, his termination had nothing to do with politics or any conspiracy, and the university has not been contacted by any public official or representative of such about this matter. Mr. Shuler was dismissed based solely on his work performance. Because this is a personnel matter, we cannot comment further.

Garrison and Mans probably did not intend for this statement to be comical, but note that it is absurd on its face. They say they can't comment on a personnel matter--after they have just spent three sentences commenting on a personnel matter. As Keith Olbermann would say, "WTF."

Mans went on to post pretty much the same comment, under his own name, when the Chronicle of Higher Education picked up on the story. You can check out Mans' handiwork here. His comment is No. 16. The commenter at No. 17 promptly ripped Mans a new one, stating:

Mr. Mans:

I am disappointed in the level of creativity of the UAB administration. You can simply post anonymously and say you obtained the information from a “very good source”.

Guess we will just have to wait for the lawsuit to bring things to the public. Sigh.

The Garrison/Mans response shows that they have no problem making false and defamatory statements--and showing their own cluelessness in the process. The claim that I was "dismissed based solely on [my] work performance" came after UAB's own employee grievance committee determined that I should not have been terminated at all.

As we reported last July, the grievance committee--UAB's own grievance committee--found that I was wrongfully terminated. We even presented the following written statement from Cheryl E.H. Locke, UAB's director of human resources: "The committee recommended that you be reinstated." Despite the recommendation of its own committee, UAB upheld my termination.

So Gary Mans says I was fired solely based on work performance. But UAB's own grievance committee found my work performance was such that I should not have been fired at all. I'm sure university spokespeople have made some ignorant public statements over the years. But Mans' blunder would have to make the top 10 of any all-time list.

I guess the University of Louisville finds such cluelessness and deceitfulness attractive in an employee.

I don't know why Gary Mans left UAB for what appears to be a lateral move, at best. But I do know that as director of UAB's PR function, he was privy to a lot of inside information about the university's activities--both good and bad.

It's possible that Mans' move was strictly about career considerations. Perhaps he saw that he could go no higher at UAB and needed to make a move.

It's also possible that Mans saw trouble on the horizon at UAB. Did he figure that Carol Garrison's days as UAB president are numbered, which might lead to a shakeup in Public Relations and Marketing. That kind of shakeup might not have been good for Mans, but it would be good news for people who care about UAB. For people who want UAB to be run with integrity and effectiveness, Garrison's exit cannot come soon enough.

Perhaps Mans saw other trouble brewing at UAB. For example, the university recently cut jobs in its health system. And with a new administration in charge of the U.S. Justice Department, someone might want to revisit the massive research fraud that has been going on at UAB for at least 10 years.

Maybe Mans decided he didn't want to be the guy who has to answer questions about a university that is laying off employees and cheating the federal government.

Maybe Mans even developed a conscience and decided he didn't like being forced to make public statements that he knows are false and defamatory about someone who has been cheated out of his job.

If that's the case, Mans probably made a good move by "getting out of Dodge."

Tuesday, June 23, 2009

Demanding Justice in the Paul Minor Case

Lawyers for Paul Minor are asking the Obama Justice Department to intervene in the Mississippi attorney's case.

In a letter due to be sent early this week, attorney Hiram Eastland asks Attorney General Eric Holder to take steps in the Minor case that are similar to those recently taken in Alaska cases. Holder asked that the case against former U.S. Senator Ted Stevens (R-AK) be dismissed and asked that former state legislators Victor Kohring and Peter Kott (both Republicans) be released from federal prison while their cases are reviewed.

Eastland notes that the U.S. Justice Department's Public Integrity Section (PIN), led by William Welch, was involved in the Alaska cases and the Minor case in Mississippi. Minor and former state judges Wes Teel and John Whitfield--all Democrats--remain in federal prison pending rulings from the U.S. Fifth Circuit Court of Appeals.

Prosecutorial misconduct in the Minor case was worse than those in other cases that have been reviewed, Eastland writes:

What has emerged in recent months is a troubling pattern and practice on the part of the Criminal Division under the direction of William Welch to allow ground level prosecutors to overreach in their legal theories, use questionable tactics to obtain evidence, and mislead, withhold, and manipulate trial material in order to further blatantly improper prosecutions.

Such has been seen in the Ted Stevens, Georgia Thompson, and Cyril Wecht cases--cases in which the Department of Justice has seen fit to intervene to correct the improper behavior and tactics of the Criminal Division.

Sadly, in the Minor case--a case with examples more egregious than those upon which your intervention has occurred--men remain in prison denied of their personal freedom while the evidence mounts that their prosecutions were grossly mishandled by DOJ personnel under the watch of William Welch, chief of the criminal division.

Eastland points out that prosecutors in the Minor case, contrary to clear federal law, sought a jury instruction that did not require a quid pro quo (something for something) agreement in order to have a bribery conviction:

In the second trial the Government claimed that it was unnecessary to prove a specific Quid Pro Quo and therefore were able to make reference to the Bribery and Conspiracy charges without showing that there was any specific agreement. In fact in 2003 the Government admitted that they did not have any evidence of a Quid Pro Quo agreement against Paul Minor yet they still brought the case. Sir, knowing the structure and procedures of the Department of Justice as intimately as you do, you no doubt know that such an overreach in legal theory never would have been allowed to proceed without supervisory support within the Department.

The political nature of the Minor prosecution comes through loud and clear in Eastland's letter:

Mr. Minor was merely one of many attorneys who contributed to judicial campaigns in Mississippi, but was singled out and prosecuted for bribery on the basis of simply having made campaign contributions. There has never been a reasonable explanation offered as to why Paul Minor's campaign contributions were considered a bribe while thousands of others who also contributed in a like-manner were not investigated nor indicted.

In fact there has never been an explanation as to why, in this case, Paul Minor's campaign contributions to these judges were charged as a criminal act, but his campaign contributions to other judges were not.

Did the Minor prosecution dovetail with a Republican election strategy devised by Karl Rove? Yes, indeed:

Evaluating the case though the prism of partisan politics provides a glimpse into the motivation behind the Minor prosecution. The initial indictment against Paul Minor was released on July 25, 2003--14 days before the Primary Election and 102 days before the General Election in Mississippi. The Minor case was immediately seized upon by Republicans and used as campaign tool against then-incumbent Governor Ronnie Musgrove. Direct mail pieces used by the Haley Barbour campaign and the Mississippi Republican Party, linked the Minor case to Governor Musgrove. The vagueness of the charges benefitted the Republicans by stifling contributions from trial lawyers, long a reliable source of funding for the Democrats.

Eastland acknowledges the tough spot in which Holder finds himself. But Minor's attorney says justice demands immediate action from the Department of Justice:

We fully understand that it must be very troubling for you to discover that William Welch, the man entrusted to oversee high profile prosecutions, has engaged in improper if not illegal actions in allowing baseless prosecutions to proceed. However, while you untangle the internal web of misconduct at the Department of Justice, it is reprehensible that men continue to languish in the penal system as a result of Mr. Welch’s malfeasance.

We understand that these are very serious allegations. However, it is abundantly clear that in the Paul Minor case, as in Stevens and Wecht cases, there were egregious violations of the Department of Justice code of conduct for employees and attorneys.

Taking affirmative action in the Minor case has long since superseded the political realm. Direct intervention would provide you with the opportunity to produce a grocery list of malfeasance that would not have the world asking “why” you acted – conversely the production of the facts would beg the question “what took so long?”

Eastland's letter comes on the heels of a Huffington Post article by Brendan DeMelle, stating that justice is long overdue in the Minor case:

It is time for the Obama Justice Department to reverse one of the most egregiously political persecutions of the Bush era -- Paul Minor's bogus conviction on trumped up charges of public corruption "bribery" despite a total lack of evidence that his role as the top funder of Democratic candidates in Mississippi netted him anything other than misery and a harsh prison sentence.

Attorney General Eric Holder stated recently that "elections have consequences." That premise should apply not just to President Obama's pick for the Supreme Court and appointment of new U.S. Attorneys, as Holder mentioned. It should compel a swift review of the unjust prosecutions of prominent Democrats targeted by the Bush Justice Department.

Paul Minor's case is Exhibit A.

Is Obama Squandering His Opportunity for Change?

We just passed the five-month mark in the Barack Obama administration, so it's still early in the presidential game. But a number of respected voices say Obama is wasting the good will and anticipation that swept him into office.

Perhaps the loudest of these voices belongs to Joseph L. Galloway, military-affairs columnist for McClatchy Newspapers and a relentless critic of the rogues who ran the George W. Bush administration.

Galloway says Obama's greatest failing has been his refusal to take decisive action on matters of justice. In a column titled "Obama's Promise of a New Beginning Now Seems Hollow," Galloway writes:

Who stole our change?

Who hijacked a popular uprising that was going to put a stop to business as usual in Washington, D.C.?

What happened to Barack Obama on his way to the White House?

The Republicans have been so busy trying to paint President Obama as a socialist, as a radical, as a Marxist, as a Muslim, as the Devil, that they haven't even noticed that he has become one of them.

Obama promised "change we can believe in," and Americans went to the ballot box and indicated they wanted it. Obama was their guy:

He would be the new broom, sweeping out the dirt, collecting the trash, and fixing everything that was broken and tarnished and perverted in our government, in our nation's capital, in our White House.

He swept into office on a high tide of good will and anticipation. He was going to fix Wall Street. He was going to end the war in Iraq. He was going to bring a new era of transparency to government. He was going to stimulate a faltering economy and give new hope to a shrinking, frightened middle class. He was going to close the prison at Guantanamo and end the torture policies of his predecessors. There was even a hope that we would investigate how we went wrong and who ordered it.

Obama remains a compelling talker, but some of his most ardent supporters are beginning to wonder whether he is much of a doer:

Oh, he can still talk the talk and he does that incessantly. But he seemingly can't walk the walk. He may still sound like a revolutionary but more and more he looks and acts like George W. Bush, albeit a George W. Bush who can speak a complete sentence in the English language.

Obama's approval ratings are beginning to unwind and begin a long downward spiral among those who had believed in the promises of change. There was a golden moment when change was possible, but it is gone now.

Here in Alabama, Ground Zero for corruption in the Bush Justice Department, many progressives are wondering why new Attorney General Eric Holder has seemed little inclined to look into political prosecutions such as the Don Siegelman case. Galloway says progressives in other parts of the country are having similar thoughts:

There was one thing Obama absolutely had to do, even before tackling an economic meltdown and the Wall Street and big bank rip-offs:

He had to reassure Americans that we all live under the rule of law; that no one by virtue of holding the highest offices in the land, or having the biggest bank account, is above the law.

It was incumbent on new President Obama to step back and let justice be done. Let the investigators do their job, Not only to let justice be done but let justice be seen to be done.

Obama, however, got his priorities all out of whack, Galloway writes:

But no. He said he wanted to focus on the future, not revisit the past. He needed to get moving on stimulating a floundering economy. And he screwed that up, too, reaching out to the very pirates who had looted their stockholders, their own companies, their own country to find someone to appoint as Treasury Secretary, thus reassuring Wall Street that he wasn't going to turn over any apple carts.

He declared that we, as a nation and people, would no longer torture our enemies and suspected enemies; would no longer lock them up and throw away the key; would no longer violate our own laws and those of the international conventions governing warfare.

But he trooped over to the Central Intelligence Agency headquarters to reassure those who had "only followed orders" when they tortured and abused helpless prisoners that they would never face justice. Nor would those who gave those illegal orders.

I have enormous respect for Galloway. But it's reasonable to ask this question: Is he jumping the gun here? Is he being a bit too harsh, a bit too soon?

I think he might be. I don't think the time for change is necessarily gone. But I also think Obama's base might desert him if he continues to be soft on matters of justice. And that could mean a one-term presidency at a time when the country desperately needs firm, stable leadership.

If Obama does not look backward long enough to ensure the public that former Bush officials are not above the law--and do it pretty soon--his presidency could be in trouble.

The bottom line? The Obama administration would be wise to pay attention to Galloway's words:

His promises of transparency in government weren't worth a pitcher of warm spit. He sent the new, cleaner Justice Department lawyers into court to use the same limp arguments of national security to ask judges to back off on doing their jobs.
And bit-by-bit the possibility of change disappeared; bit-by-bit the hope of a renewed and reinvigorated American democracy and way of government faded away. Those who had held a dream in their hand closed their hand and crushed it.

Monday, June 22, 2009

Is Alice Martin an Incorrigible Liar?

Sunday was Father's Day for most Americans. But at The Birmingham News, it apparently was "Kiss Alice Martin's Fanny" Day.

Martin, who has spent the past eight years butchering the law as U.S. attorney for the Northern District of Alabama, stepped down last Friday. The News, her biggest booster, sent her out with enough bouquets to choke a brontosaurus.

Columnist Robin DeMonia weighs in with a piece titled "What Will Become of Corruption Cases?" The tone is, "Dear God, how can anyone carry on the prosecutorial masterpieces that Alice Martin has wrought?" This must be about the 20th such piece the News has produced since the November 2008 elections showed that Martin's days were numbered. Each piece seems to be written with several assumptions in mind: (1) Any indictment Alice Martin brought was soundly based on the facts and the law; (2) Political affiliation played no role in the cases Martin chose to pursue or ignore; (3) Political types targeted by Martin clearly were corrupt and guilty.

The News sticks to these assumptions, despite a mountain of evidence indicating that Martin herself was far more corrupt than any politician she went after.

Reporter Robert Gordon writes an opus about Martin's tenure as U.S. attorney, starting on the front page and jumping to two pages inside. It must take up 50 column inches or more, with roughly the first three-fourths of it devoted to Martin highlights. You have to dig deep into the story before you see signs that all was not peachy during Martin's reign. Consider this quote from a veteran prosecutor who left the office:

"It was just turmoil inside the office," former prosecutor John Earnest said. "She had a plan to transform the office into one of her making. She wanted to staff the office with her hires and nothing mattered about what was in place.

"In my opinion, we had highly professional and highly effective prosecutors and it was wrecked. She was partisan and preferential in her hires."

To his credit, Gordon does mention the Alex Latifi debacle, in which Martin's team apparently intentionally ruined a prosperous Huntsville business. And Gordon mentions that Martin is under investigation by the U.S. Justice Department's Office of Professional Responsibility. I'm not sure the News ever has mentioned either of these issues in previous articles.

Perhaps the most stunning item from Gordon's piece is this claim from Martin that she pursued political cases without regard to party affiliation:

Martin said there were no political motives to her public corruption prosecutions. The office actually won convictions against one more Republican than Democrat, she said. "We have never looked at their political affiliation," she said. "We have looked at their corrupt actions."

Gordon apparently regurgitates this quote without batting an eye or asking a question. And columnist John Archibald, who has become little more than Martin's lap dog in recent years, latches onto it in his column with the comical title, "Don't Hate Her 'Cause She's Dutiful."

Archibald proclaims, "Half of her victims came from the GOP." But neither he nor Gordon seems to have conducted any research to determine if that information is correct.

Let's do an off-the-top-of-our-head recounting of the politically oriented cases brought by Martin in the Northern District of Alabama. Let's see, I can recall cases against Don Siegelman, Chris McNair, Jeff Germany, Larry Langford, John Katapodis, Al LaPierre, Bill Blount, Sue Schmitz, E.B. McClain, and Samuel Pettigrue. I'm sure I've forgotten some cases, but that's 10 folks, all Democrats, targeted by Martin.

On the Republican side, I can think of Gary White and Mary Buckelew. Court documents indicate White was targeted because he refused to cough up false testimony about Siegelman. And Buckelew, a one-time Democrat, appears to have been targeted because she's been a friend and ally of Langford.

Is Alice Martin telling blatant lies about her record, knowing The Birmingham News will lap them up?

Well, I know from firsthand experience that Alice Martin lies the way most people blink their eyes. It's a reflex, one she apparently is incapable of controlling.

Archibald quotes Martin: "Not a week goes by that we don't get a credible tip on corruption."

What does Martin do when such a tip leads to one of her GOP cohorts? She intentionally covers it up and lies about what she's done. In a post just last week, we showed that Alice Martin had committed a crime--obstruction of justice--by intentionally sending my complaint about corrupt lawyers and judges in Shelby County to an agency that had no jurisdiction to investigate it.

We also have noted that Martin probably either engineered, or knows who did engineer, my unlawful termination from UAB. That was one of many intriguing storylines from Lindsay Beyerstein's investigative piece at Raw Story.

A few days after Beyerstein's piece ran, we noted that Martin had refused to answer question, issuing a written statement that was filled with more holes than the Oakland Raiders defensive line.

Alice Martin assumed her role as a U.S. attorney, apparently with a frail grasp on the truth and the role she should have played. Now she's going out the same way.

Looks like she didn't learn a thing in her eight years on the job.

Friday, June 19, 2009

Who are the Biggest Fraudsters in Scrushy Civil Cases?

It's been a rough week on the legal front for former HealthSouth CEO Richard Scrushy, who was the codefendant in the Don Siegelman criminal case.

In a decision released yesterday, a Jefferson County judge ordered Scrushy to pay HealthSouth $2.87 billion, finding that he had orchestrated a massive financial fraud at the company.

Just one day earlier, a federal appeals court rejected Scrushy's challenge to a $445-million settlement between HealthSouth and some of its investors.

If you look beneath the surface in both of these cases, they are about more than huge financial obligations for Scrushy. They also are about a troubled justice system that cannot be trusted to handle small matters correctly, much less cases involving billions of dollars.

Why is this subplot important in the Scrushy cases? It's because public documents indicate there are reasons to question the integrity of key decision-makers in both cases.

In the state-court case, Jefferson County Circuit Judge Allwin Horn oversaw a bench trial, without a jury. We already have shown here at Legal Schnauzer that Horn is corrupt.

How do I know Horn is corrupt? I've seen it with my own eyes. If you want to see if with your own eyes, go to the clerk's office in the Jefferson County Courthouse and call up the following case on one of the public computers: Roger Shuler v. Richard Poff, CV 05-3826.

That is my legal malpractice claim against Birmingham lawyer Richard Poff. Documents in the file will clearly show how Horn butchered the case and cheated me in order to protect a member of the legal community. Poff, by the way, has gone through an ugly divorce, a bankruptcy, and has faced other legal malpractice claims besides mine. Public documents indicate that gambling debts were major issues in both the divorce and bankruptcy cases.

How did Horn conduct the Shuler v. Poff case? Here is how we described it in an earlier post:



Remember, Horn is the judge who was too lazy to look up the actual law in my legal malpractice case against Birmingham attorney Richard Poff. Horn said that if I didn't like the way he ruled, "you can appeal me," never mind the taxpayer dollars that would be wasted on an issue that didn't need to be appealed.

To top it off, Horn showed that he was too lazy to read documents that had been put under his nose, and he couldn't even manage to follow his own orders. Horn ordered Poff to present a certified copy of his bankruptcy case to prove that I had not been included as a creditor in that case. That, of course, was unnecessary because Poff had already admitted in documents submitted to Horn that I wasn't listed as a creditor in the bankruptcy case.

Then when Poff failed to appear for a hearing in Horn's office, and failed to produce the documents he had been ordered to produce, Horn let him get away with it and dismissed my case--even though, by law, it could not be dismissed.

In terms of the law, how did Horn screw up my case? Here's our report:



The law in my legal-malpractice case could not have been more clear or more easy to follow. Horn insisted that I had to go to bankruptcy court and get permission to proceed with my legal-malpractice claim in state court. But Poff had not included me as a creditor in his bankruptcy case, so I had no standing to do anything in that court.

In fact, as we showed in a post about one year ago, Horn stood the actual law on its head. The controlling case law can be found at Watson v. Parker (264 B.R., 685, 2001). Under Watson, the burden was on Poff, not me, to reopen his case in bankruptcy court if he wanted to try to have my claim discharged. If Poff didn't do that, under the law, my case was to proceed in state court.

Want some irony? Here is a quote from Horn about his findings in the Scrushy case:



"Scrushy knew about the fraud and was an active participant in the fraud and consciously and willfully breached his fiduciary duties as CEO. Scrushy was the CEO of the fraud."

That's an interesting choice of words. In my legal-malpractice case, Horn was "the CEO of a fraud." Specifically, he consciously and willfully ruled contrary to law and used the U.S. mail in furtherance of a scheme to breach his duties as a judge. That's a classic definition of honest-services mail fraud.

Speaking of fraud, that's exactly what a whistleblower says is going on at Performance Group LLC, a company partly owned by Homewood attorney Rob Riley (the son of Alabama Governor Bob Riley).

Why does that matter in the Scrushy cases? Riley is co-liaison counsel for stockholder lead plaintiffs in the federal HealthSouth/Scrushy case. The other liaison counsel in that case is Birmingham lawyer and former Clinton-era U.S. attorney G. Douglas Jones.

We have raised questions about apparent conflicts Jones and Riley had because of their connections to both the Scrushy federal lawsuit and the criminal case involving Scrushy and Siegelman.

Do Riley and Jones stand to benefit financially from those possible conflicts? Sure looks like it, based on a motion for attorney fees they recently helped file in the federal HealthSouth litigation.

Here is an interesting connection between the state and federal Scrushy cases. The lead plaintiffs' firm in the state case was the Birmingham firm of Hare Wynn Newell & Newton. A source tells us that just happens to be the firm where Rob Riley began his legal career before going on to start his own firm, Riley & Jackson.

Was there some note-swapping going on between lawyers in the two cases? Did inside information from the Siegelman/Scrushy criminal case contribute to the $2.87 billion judgment in the state Scrushy case? Good questions.

So let's review:

* Is Richard Scrushy a major scoundrel who knowingly engineered a massive fraud at HealthSouth? It's possible. But he was not a public official, and I'm not aware of any oaths he took to uphold the law.

* Allwin Horn is an elected public official who has taken an oath to uphold the law. He also is an officer of the court. He has demonstrably committed a federal crime, honest-services mail fraud.

* Rob Riley is an officer of the court, and as son of the governor, has unusual access to our state's highest public office. A whistleblower has charged that a company Riley owns has engaged in health-care fraud.

* Doug Jones is an officer of the court and a former appointed public official. His behavior in recent years raises this important question: Did Jones parlay his inside knowledge of the Siegelman/Scrushy criminal case into a massive payday in the HealthSouth/Scrushy civil case?

The HealthSouth fraud was a serious matter, without question. But who in this crowd is doing the greatest harm to the overall public welfare?

Thursday, June 18, 2009

University of Alabama Sleaze Starts at the Top

Here is a trivia question for you sports fans out there: What is the most corrupt major-college athletics program in the country?

Answer: The University of Alabama Crimson Tide.

UA, which was put on NCAA probation last week over a textbook-disbursement scandal, now has been hit with four major-infractions cases in the past 14 years. That's more than any other major university sports program.

Coaches, players, and athletics directors have come and gone over that time period. But what is the one constant? It's the University of Alabama Board of Trustees. The board's incompetence has infected the entire UA System, including the University of Alabama at Birmingham (UAB), where I worked until being unlawfully terminated from my job in the Publications Office.

Does the UA board ever learn from its mistakes? Apparently not.

We learn today that the university intends to appeal its most recent sanctions from the NCAA. Instead of trying to put its latest fiasco behind it, UA intends to appeal and shine more light on its lengthy history of athletics misdeeds.

That left Birmingham News columnist Kevin Scarbinsky asking this question about UA President Robert Witt: Does Alabama President Care One Witt About Integrity?


The last thing Robert Witt wants to do at a press conference is answer questions, even on a day when the integrity of his institution has been called into question.

Again.

Instead, the president of the University of Arrogance chose merely to read a statement Thursday afternoon. In those 256 words, he made a statement that helps explain why his school leads the Football Bowl Subdivision with four major infractions cases in the last 14 years.

Through multiple presidents, athletics directors, coaches, administrators, student-athletes, boosters and sports.

Alabama has what Nick Saban might call a cultural problem.

It's a culture that demands doing the right thing--but only after you've been caught doing the wrong thing.

Again.

The names and faces change.

The attitude never seems to adjust.

Why does the attitude never adjust? Because the UA Board is always in charge. Witt is just their front man, a toady. It's the board members who have turned the UA System into a cesspool--and they keep it that way.

How sleazy is the UA sports enterprise? Scarbinsky puts it in perspective:


Witt put the latest public face on the problem Thursday when he said he was disappointed.

Not in the 201 different student-athletes who violated textbook distribution policies and thus broke NCAA rules.

Not in the athletic department administrators who failed to notice a 30 percent spike in textbook charges over a two-year period and thus failed to monitor that program.

Not in an athletic department that will have spent 16½ out of 19 years in the NCAA's repeat-violator window, from June 3, 1995, to Jan. 31, 2007, and from June 11, 2009, to June 10, 2014.

No, Witt pointed his disappointment in only one direction--at the NCAA Committee on Infractions. "We're disappointed in the severity of the penalties," he said.

You read that right. UA will spend almost 17 of 19 years with NCAA repeat-offender status. It can't get much worse than that.

But problems under the UA board hardly end with athletics. Regular readers of Legal Schnauzer know about the myriad problems that exist on the Birmingham campus. Here is a sampler:

* The UAB Health System announced that it is eliminating 245 jobs;

* That news came as we were reporting that court documents indicate UAB cheated the federal government out of roughly $600 million in a research-fraud scheme over about a 10-year period;

* UAB fosters a culture of deceit, which includes releasing apparently false public statements about the plans of departed Health System CEO David Hoidal;

* The Birmingham campus is beset with problems connected to human resources. These include: charges of fudging data on a salary study of female professors, charges of discrimination and violations of immigration law against medical residents from India, discrimination lawsuits by multiple veteran faculty and staff members, and apparent failure to discipline employees who used university computers to send racist and homophobic e-mail messages.

* Two UAB staff members, Drs. Thomas G. Spurlock and Francois Michel Blaudeau, are partners in a physical-therapy company that is alleged to be practicing health-care fraud. Federal-court documents charge that Performance Group LLC is involved in various forms of Medicare fraud. Joining Spurlock and Blaudeau as owners in the company is Homewood attorney Rob Riley, the son of Alabama Governor Bob Riley.

How bad are things on the University of Alabama Board of Trustees? One of its members owns a company that was implicated in a massive reinsurance-fraud scheme in Pennsylvania. Here's how we reported it at Legal Schnauzer:


If new attorney general Eric Holder and his troops are serious about going after business fraud, they might want to focus some resources on Alabama.

While recent public attention has focused on problems in the mortgage and banking sectors, Holder & Co. might want to focus on an under-the-radar industry that appears to be rife with corruption.

It's called reinsurance, and the Justice Department has a spotty record at policing the field over the past 10 years or so. Perhaps that record will improve in the future, and a good place to start would be Alabama.

That's because an Alabama company, which happens to be owned by a prominent member of the University of Alabama Board of Trustees, was implicated in one of the government's largest and most successful prosecutions for reinsurance fraud.

The case, based in Pennsylvania, resulted in the 1997 conviction of Philadelphia lawyer and businessman Allen W. Stewart. The government was able to retrieve some $17 million through forfeiture proceedings.

Alabama connections in the Stewart matter were so strong that prosecutors and fraud experts from Alabama were deeply involved in the case.

If Alabama citizens ever grow tired of corruption from their flagship university system, they should push for a federal investigation. And it should start with the UA Board of Trustees.

Wednesday, June 17, 2009

Alice Martin Leaves a Crooked Path in Her Wake

Alice Martin will resign as U.S. attorney for the Northern District of Alabama on Friday, ending a tenure that might have set a new standard for corruption and incompetence in the history of our justice system.

What will we remember most about Martin's eight-year "Reign of Error"? A highlight for me has to be the comment from Scott Horton, Harper's legal-affairs contributor and Columbia University Law School professor, stating that Martin was perhaps the most corrupt and crooked public official in the country.

That statement, made during the George W. Bush era, is quite a mouthful.

A mountain of evidence supports Horton's statement, including the fact that Martin is under investigation by multiple government agencies. But Martin's crooked ways were not an abstract concept for me. I saw her operate in an up-close and personal way.

Longtime readers might recall that I sent detailed allegations to Martin about criminal behavior (honest-services mail and wire fraud) I had witnessed by various judges and attorneys in Shelby County, Alabama. When I heard nothing about an investigation into these matters, I e-mailed Martin to ask for an update. To my astonishment--and probably to her great regret--she responded. That set off an intriguing e-mail exchange that speaks volumes about Alice Martin's crooked ways. Let's review:

* Martin informs me that she has sent my complaint to the U.S. Postal Inspection Service;

* I ask Martin why the material was sent to postal inspectors instead of the FBI. She says it is standard procedure to send complaints regarding mail fraud to postal inspectors;

* I helpfully point out to Martin that the postal inspection service, according to its own Web site, does not have jurisdiction to investigate honest-services mail fraud cases. I make it clear in an e-mail to Martin that I'm not buying her story about the postal inspection service;

* Martin, clearly irritated with me by now, suggests I can contact the FBI directly;

* I remind Martin that she had promised in an earlier letter that, if I sent her detailed allegations of wrongdoing, she would refer them to the appropriate agency. I ask why she is going back on her promise;

* Backed into a corner, Martin turns to a classic tactic--changing the subject, fast;

* I don't let her get off easily. If it's standard procedure to refer honest-services mail fraud cases to postal inspectors, I ask, why was that not done in the Don Siegelman case?

* Apparently deciding it's best not to swap e-mails with a Legal Schnauzer, Martin quietly exits stage left. I hear no more from her.

Did Alice Martin, in fact, send my material to the wrong investigative agency? Well, I contacted a gentleman named Jim Dormis, from the U.S. Postal Inspection Service in Birmingham, several weeks back. He confirmed that he received my complaint from Martin's office. He also said he and his staff quickly determined that they did not have jurisdiction to investigate such a case and sent the material back--either to Martin or the FBI, he wasn't sure which.

Alice Martin had an obligation to make sure the material was sent to the proper investigative agency, but she did not do it. And I never heard anything more from her.

Did Alice Martin commit a crime--obstruction of justice--by intentionally ensuring that my complaint would not be investigated? My research indicates the answer to that question probably is yes.

Did Alice Martin violate ethical standards in the handling of my complaint? The answer to that is almost certainly yes. A key figure in my charges was Pelham, Alabama, attorney William E. Swatek. I later would discover that Dax Swatek, Bill Swatek's son, had been Alice Martin's campaign manager in a 2000 run for a seat on the Alabama Court of Criminal Appeals. Alice Martin had a gargantuan conflict regarding my complaint, but she never said a word to me about it.

When I wrote about Alice Martin's ties to Dax Swatek on February 18, 2008, I received an anonymous comment: "Nut case yours is comong (sic.)" You don't have to be Gil Grissom to make an educated guess about the source of that comment. And a little more than two months later, I was wrongfully terminated from my job at the University of Alabama at Birmingham (UAB).

In her investigative piece about my termination, Lindsay Beyerstein of Raw Story explicitly raised the question: Was Alice Martin involved in my termination?

Martin ignored Beyerstein's requests for interviews and issued a last-minute written statement. I reported that Martin's statement was full of holes.

The bottom line? Alice Martin soon will be out of office, but she will not be out of mind here at Legal Schnauzer. Evidence strongly suggests that Martin either was involved with my termination at UAB or knows who was.

We are not through with Alice Martin--not by a long shot.

Tuesday, June 16, 2009

Here Is How An Appellate Court Cheated Don Siegelman

We are starting to see the fallout from the U.S. 11th Circuit Court of Appeals ruling that upheld most of the convictions against former Alabama Governor Don Siegelman and codefendant Richard Scrushy.

In the wake of that ruling, federal prosecutors asked that Siegelman be given a 20-year prison sentence, almost three times his original sentence of seven years. Then the full 11th Circuit denied an en banc review, essentially putting its stamp of approval on the earlier findings by a three-judge panel.

Given the possibly drastic repercussions of the appellate ruling, we should ask this question: Did the 11th Circuit get it right, under the law?

The answer, on multiple grounds, is a resounding no. And our review indicates that the same politics that permeated the Siegelman case at the trial level also infected the appellate process.

As regular readers know, I am not a lawyer. I'm a journalist with 30 years of professional experience, and because of my personal encounter with corruption in Alabama's state courts, I've developed a better-than-average ability to research the law.

Since the 11th Circuit's decision was released on March 6, I've spent considerable time studying its 68-page ruling and comparing it to the 84-page appellate brief filed by Siegelman's legal team. I've also studied many of the statutory and case-law issues raised in both documents.

My conclusion? The three-judge appellate panel, made up of all Republicans, butchered the ruling in a way that almost had to be intentional. I see no way that a group of judges could accidentally get a decision so wrong, on so many counts.

That means the politicization of our justice system is still going on, even though George W. Bush, thankfully, is in Texas and not the White House. It means that politicization of our justice system goes beyond the schemes of Karl Rove and pliant prosecutors. It goes beyond corrupt trial judges, such as Mark Fuller in Alabama (Siegelman/Scrushy case) and Henry Wingate in Mississippi (Paul Minor case).

It also goes to our federal appellate courts, which are superseded by only one court--the U.S. Supreme Court. Given that the nation's highest court hears only a tiny portion of cases brought before it, the last real hope for most wronged parties are the appellate courts. That would be the U.S. appellate courts for federal cases and the state supreme courts for state cases.

The Siegelman case might be an exception. On the surface, it appears to raise questions that might be worthy of the Supreme Court's attention. But it never should have gotten that far. Any questions, in reality, have been created out of thin air by a corrupt trial court and now by what appears to be a corrupt or incompetent 11th Circuit.

The truth is this: The prosecution in the Siegelman case never should have made it to first base. That it would have to go all the way to the U.S. Supreme Court to be correctly resolved is an absurd waste of resources.

For that, all taxpayers should send letters of "thanks" to U.S. District Judge Mark Fuller. Now, his buddies on the 11th Circuit are adding to the massive tab.

The thought that a federal appellate court is corrupt, or grossly incompetent, should send shivers down the spines of all Americans. But we can come to no other conclusion after studying documents related to the 11th Circuit's ruling in the Don Siegelman case.

Why does this matter? In the Siegelman case, it means that a man who committed no crime could spend the rest of his life in federal prison. And if prosecutors ask for a similar extension for Richard Scrushy, and it is granted, the same could apply to him.

How would I describe the experience of reviewing the Siegelman appeal? The words "frightening to the core" come to mind. And I'm not easily shocked anymore by judicial corruption/incompetence.

I've already shown that, in my own case, the Alabama Supreme Court acted in a clearly corrupt fashion. And I suspect it is hardly the only corrupt state supreme court around the country.

But somehow, I expected more from our federal courts. The 11th Circuit has shown that my expectations were badly misplaced.

Where to begin on the Siegelman case? The former governor was cheated on multiple grounds, so we will analyze the appeal in multiple posts. I will strive to make the posts as brief and clear as possible, keeping the "legalese" to a minimum.

We will start with our most fundamental finding: The statute of limitations on the bribery charges against Siegelman and Scrushy had run, and contrary to the 11th Circuit's finding, the defense raised that issue in a proper manner.

The bottom line? The government waited too late to bring its case. And the Siegelman team raised the issue in a proper fashion that should have resulted in an acquittal.

Anyone who has studied the Siegelman case will not be surprised that trial judge Mark Fuller got this wrong. Fuller's myriad conflicts in the case have been well documented.

But a federal appeals court also getting it wrong? That's scary stuff.

(To be continued)

Domestic-Relations Post Strikes Some Serious Nerves

When you've been in the blogging/citizen journalism "business" for awhile, you develop a sense for topics that are likely to strike a nerve--and draw a heated response.

Such was the case with our recent post about apparent corruption in domestic-relations court in Jefferson County, Alabama. As we noted in the post, domestic-relations cases tend to generate high emotions, even when a court is handling them properly. And I know from firsthand experience that shining light on the questionable actions of a judge is a surefire way to draw heat from certain quarters in the legal community--not to mention certain parties who are receiving favorable treatment that might not be justified by law or facts.

So I was not surprised when our post drew a strong response. After all, we were writing about attorney Angela Turner Drees and her federal lawsuit against Jefferson County Circuit Judge Ralph A. "Sonny" Ferguson, alleging that the judge had engaged in criminal misconduct and violated her constitutional rights in a child-custody case.

But even I was taken aback by the level of vitriol directed at Ms. Turner in several comments to our post. I moderate comments on Legal Schnauzer, and I normally reject comments that question someone's mental health or trash their character. But I let these comments go through, thinking they might be instructive about how sensitive this topic is in the Birmingham legal community.

You can check all of the comments on the post by going to this link and clicking on the comments link at the bottom. But here are a few unedited "highlights":

* "Angela Drees is the one who is in the wrong here. Her constant harassment and abuse of these poor children, her ex husband, all of the lawyers involved and the Judge will end soon enough. Mark my words that at some point soon not only will see be without her children, but she will also lose her law license and will likely be spending time in jail."

* "There simply isn't a lower form of life than a woman who does these types of things to her children. They are better off without her until she checks into a mental health facility and starts accepting blame for her own actions and takes medication for her mental illness."

* "A closer look at Ms. Drees and her unfounded allegations would reveal her insanity. She continues to make slanderous allegations at nearly every Judge she appears before, simply because they see through her fallacies and rule against her. That type of behavior isn't justice, it's ludicrous. She should've lost her bar license years ago, which would've prevented her from filing these types of ridiculous and frivolous matters that waste public funds and everyone's time."

For good measure, one or two commenters decided to take shots at your humble blogger:

* "LS, Sometimes fully researching the facts of your case would make your opinions on this blog carry a lot more weight . . . luckily, a brief run-through of your postings provides strong evidence that the items posted here are nothing more than one man's ill-informed positions on a variety of topics the general public cares absolutely nothing about. Posting this type of comment about a domestic relations matter that has been going on for years, which you know absolutely NOTHING about, only makes you look like a fool."

* "Seriously, do you spend all day long dreaming up conspiracy theories about how everyone in government is corrupt? Maybe you should find a new hobby."

And then we had this:

* "Your facts below regarding the "skit" that occurred are also incorrect, and I would suggest to you that you refrain from making those types of allegations against the law firm where the President of the Bar currently practices."

The skit and its aftermath were addressed in a recent article by The Birmingham News. The Birmingham firm of White Arnold & Dowd, home to Alabama State Bar President J. Mark White, was mentioned in the article.

One of our readers seems to think that Mr. White isn't capable of taking care of himself or is somehow above scrutiny. Perhaps Mr. White would like to answer questions about why one of the lawyers in his firm, Steve Arnold, helped prepare a sophomoric skit that led to the forced recusal of a domestic-relations judge.

Is that the kind of activity that the Alabama State Bar endorses?

We have only begun to scratch the surface of issues connected to Jefferson County Domestic Relations Court. Much more is coming. And the nasty response to our first post makes me think we are onto an important story.

Monday, June 15, 2009

Public Integrity Section Shows Lack of Integrity in Siegelman Prosecution

Convictions in the Don Siegelman case should be set aside because of misconduct by the chief of the U.S. Justice Department's Public Integrity Section (PIN), says an Alabama attorney and whistleblower.

Jill Simpson says PIN Chief William Welch failed to investigate charges of misconduct against U.S. District Judge Mark Fuller, who oversaw the Siegelman case.

PIN holds exclusive jurisdiction over investigations of alleged criminal misconduct by federal judges, and the agency received a copy of an affidavit from Missouri attorney Paul Benton Weeks before the Siegelman case. The affidavit outlined numerous charges of misconduct against Fuller, but Simpson says Welch never fulfilled his duty to investigate the matter. And he did not fulfill his duty to turn over copies of the affidavit to attorneys for Siegelman and codefendant Richard Scrushy.

Welch, Simpson says, was more interested in defending an allegedly corrupt judge than in investigating him. And that caused Siegelman and Scrushy to be deprived of critical information contained in the Weeks affidavit.

In a statement released at the Locust Fork News-Journal, Simpson says the Obama Justice Department should set aside the Siegelman convictions and release Scrushy from federal prison:

The Department of Justice had a duty to turn over the Weeks affidavit and failed miserably in doing so. As a result of this, Mr. Scrushy has spent almost two years in jail and Mr. Siegelman spent over nine months. The time has come for those at the Department of Justice to admit their wrongdoing by accepting responsibility for not providing the Weeks affidavit, and for allowing an attorney who is supposed to be (in charge of) investigating a complaint on a Judge to defend that Judge in another matter without ever disclosing his conflict.

Simpson notes that Welch has been at the heart of alleged prosecutorial misconduct in several Alaska corruption cases. That misconduct has prompted Attorney General Eric Holder to review prosecutions against former U.S. Senator Ted Stevens and former state legislators Victor Kohring and Peter Kott, all Republicans. A similar review should be taken in the Siegelman case, Simpson says:

Bill Welch has in the last couple of months become the whipping boy at the DOJ in the Alaskan case. His conduct is no worse there than it is here in Alabama. It is my understanding that they claim the reason they set aside the verdicts in Alaska in the Stevens case and asked for the release from prison of Kott and Kohring is because . . . they claim Mr. Welch hid evidence. Clearly in Mr. Siegelman’s and Mr. Scrushy’s case here in Alabama, Mr. Welch was involved in misconduct. Instead of researching whether their allegations were true about the Judge, Mr. Welch showed up in the case and defended the Judge. His job was to look at these kinds of allegations to determine if there is corruption or
misconduct.

He was the head guy at the Department of Justice over that very division. If he had done his job instead of rushing to defend Judge Fuller, he would have found the Paul Weeks affidavit in his office that laid out all kinds of misconduct. He would have had a duty to (provide) a copy to the Siegelman-Scrushy legal team. Instead this lawyer who had been in charge of this division for all of one month buried his head in the sand and defended the Judge without ever investigating even what was in his own files in his own office.

Simpson's statements make it clear that the Public Integrity Section acted without integrity during the George W. Bush administration. Will the Obama Justice Department take action to correct injustice that started under Bush?