|Robert Hinkle (second from right)|
with Jeb Bush (center)
The trial judge in the Don Siegelman case is not required to recuse himself, according to a ruling issued last week by U.S. District Judge Robert L. Hinkle of Florida.
Hinkle's ruling means that trial judge Mark Fuller, a George W. Bush appointee, can continue to preside over the Siegelman case, including a resentencing that has been ordered by the U.S. Eleventh Circuit Court of Appeals. Hinkle also ensured that no hearing or other discovery will be conducted to determine if Fuller conducted the Siegelman trial in a biased fashion--or if jurors engaged in serious misconduct.
A Bill Clinton appointee to the federal bench, Hinkle appears on the surface to be a Democrat. But a review of his background reveals some alarming ties to Republicans of a Rovian stripe. And his dubious ruling regarding Fuller's recusal appears to drive home a couple of disturbing points about the state of America's justice system:
* Certain Democrats have joined Republicans in an effort to cover up the rampant corruption that surrounded the Siegelman case--from Fuller's unlawful rulings, to misconduct of Bush-era prosecutors, to allegations that the whole charade was orchestrated by Republican operatives for political reasons.
* If Democrats won't stand up for due process, as outlined in the Fifth and Fourteenth amendments to the U.S. Constitution, who will?
Due process, the legal principle that government must respect all legal rights owed to a person under the law, is the broad issue at stake in Hinkle's finding.
Conservative commentators long have portrayed Siegelman supporters as being drunk on what might be called a "cult of personality." To these pundits, Siegelman and codefendant Richard Scrushy have become a cause only because the former Alabama governor was a popular, charismatic public official.
But the Hinkle ruling shows that the case is not about Siegelman's personality; in a sense, it isn't about Siegelman at all. It is about the fundamental notions of fairness that are supposed to hold sway in our courtrooms. They come under the umbrella known as "due process," and they include the right to an objective, unbiased judge; the right to an untainted jury; and the right to face prosecutors who follow fundamental legal procedures.
Hinkle, in so many words, found that Siegelman and Scrushy are not entitled to any of those protections. At the risk of sounding crude, I would say that Hinkle rolled out critical provisions of the U.S. Constitution and took a giant crap on them.
Why did he do this? Andrew Kreig, director of the D.C.-based Justice Integrity Project, provided important insight yesterday in a piece titled "Florida Judge Continues Whitewash of Siegelman Frame-Up." Reports Kreig:
Hinkle's decision absolving Chief U.S,. District Judge Mark E. Fuller of Alabama's Montgomery-based Middle District carries the veneer of independence and fairness. But Hinkle trivializes Fuller's mind-boggling irregularities and a judge's legal duty to avoid even the appearance of unfairness. Most important, Hinkle severely undermines public confidence in the judiciary when he protects his colleague Fuller from scrutiny regarding the fabulous sums Fuller has been making on the side while implementing the Bush administration's long jihad against Siegelman, his state's most prominent Democrat. Hinkle, a wealthy man with many investments, fails to see any potential conflict in Fuller's repeated, dubious rulings in favor of his Bush administration patrons while also being enriched by Bush contracts totaling $300 million to the judge's closely held company, Doss Aviation, Inc.
What about Hinkle's investments? He is making a bunch of dough on the side, too--and it comes from some intriguing sources. Kreig provides intriguing details:
Further, Hinkle was a substantial stockholder in another company, ChoicePoint--exactly when ChoicePoint used despicable methods in 2008 to thwart a private detective’s researches into Fuller's Doss holdings. ChoicePoint, since acquired by Lexis-Nexis, is notorious for other reasons in Florida's state capital: At the request of Gov. Jeb Bush's administration, ChoicePoint furnished the state with flawed records that enabled the state government wrongly to remove thousands of African-American voters from eligibility to vote in 2000. This helped George W. Bush win the Presidency that year in disputed Florida vote returns with a reported margin of just several hundred votes. The 5-4 Bush v. Gore Supreme Court decision sealed the victory by forbidding Florida from continuing vote recounts.
To be sure, there's no way of knowing how much Hinkle knows about the operations of the companies in which he invests. He has declined to respond to my request for comment for this column, and to provide a photo and his 2010 financial disclosures covering the year 2009.
The bottom line? Hinkle has ties to a company that former Florida Governor Jeb Bush used to help his brother, George W. Bush, get "elected" president in 2000. Should that raise questions about Hinkle's objectivity regarding the Siegelman prosecution, which was instigated by the Bush Department of Justice? In our mind, it certainly should.
As for Hinkle's ruling itself, we are being charitable when we call it "dubious." A more appropriate term might be "laughable." (The full ruling can be viewed at the end of this post.)
Hinkle notes key legal standards governing recusal--and then proceeds to ignore them. For example, he correctly states that the governing standard is "whether a reasonable person fully informed of the facts would question the judge’s impartiality." 28 U.S. Code 455. Material in the Siegelman file indicates that Fuller's company makes millions of dollars from U.S. government contracts--and one of the parties before him was . . . the U.S. government. How could a reasonable person not question the judge's impartiality under such circumstances? Hinkle does not say.
Hinkle also correctly states that "doubts about recusal must be resolved in favor of recusal." Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1112 (5th Cir. 1980). Then he proceeds to ignore that standard. Actually, there are no doubts about Fuller's status in the Siegelman case; he was required by law to notify the parties of potential conflicts and then recuse himself. Liljeberg v. Health Services Acquisition Corp, 486 U.S. 847 (1988). Once the issue landed on Hinkle's desk, any doubts should have been decided in favor of recusal. Hinkle admits that's the law, and then he violates it.
Perhaps most stunning is Hinkle's finding regarding alleged juror misconduct in the Siegelman case. Get a load of this:
In this case the jurors served for nearly two months. They incurred a substantial burden. The defendants now propose an intrusive investigation including subpoenas to their cellular and internet service providers and a review of their text messages and emails. The defendants propose seizing the jurors’ computers for a forensic examination. This kind of treatment sometimes befalls a person accused of a crime or even someone involved in substantial civil litigation. To visit it upon a juror, based on nothing more than anonymously provided emails that bear no indicia of authenticity and that conveniently showed up just after the court issued a comprehensive opinion explaining why earlier emails were insufficient to warrant relief, would inflict an indefensible additional burden on these jurors. Treating jurors this way would make future jurors understandably reluctant to serve.
Translation: It's better for innocent men to go to prison than for jurors to be inconvenienced. God only knows where Hinkle found that concept in the Constitution. But it should scare the bejeebers out of every American.
This also should scare every American. The recusal issue in the Siegelman case is real simple--but multiple federal judges cannot get it right.
The law plainly states that a judge shall disqualify himself when "he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding." 28 U.S.C. 455(a)(4).
Does Mark Fuller have a financial interest in a party to the proceeding, specifically the U.S. government? Yes, he does. So why is he still on the Siegelman case? Hinkle apparently thinks regular citizens are too stupid to ask that question. And even though he appears to be a Democrat, Hinkle apparently is more interested in protecting the legal/judicial cartel than in making sure justice is served.
Due process? What due process? That's the message from Judge Robert L. Hinkle.
Siegelman Hinkle Ruling