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Monday, August 6, 2012

Judge In Siegelman Case Displays Monumental Arrogance and a Seriously Faulty Memory

Mark Fuller

The most nauseating moment in last Friday's resentencing of former Alabama Governor Don Siegelman came when U.S. District Judge Mark Fuller stated that he had no doubt a bribe had taken place in the case.

This is a judge who, according to an affidavit from Missouri attorney Paul Benton Weeks, once tried to defraud the Retirement Systems of Alabama (RSA) and committed perjury in the process. This is the same judge who, according to documents in his ongoing divorce case, had an affair with a female employee, committed acts of domestic violence, drove under the influence, and showed signs of having an addiction to prescription painkillers.

It takes chutzpah for Mark Fuller to sit in judgment of anyone. But to fully grasp Fuller's arrogance, it helps to read one full quotation from the Siegelman resentencing. Here it is, as reported in Sunday's Birmingham News:

During his case and appeal, Siegelman maintained there had been no promise of a reward if Scrushy arranged the donations. He pushed to get the U.S. Supreme Court to review the case, to no avail. 
But Fuller said when he sentenced Siegelman that there was no doubt in his mind that Siegelman had taken a bribe. 
"The facts of this case for years have been misrepresented. There is no doubt in this court's mind that what took place was a bribe," Fuller said.

I will take that as a cheap shot toward the non-traditional press, which has led the way in raising questions about the Siegelman prosecution. The mainstream media has been mostly asleep at the switch, but concerns about the case have come from numerous quarters. More than 100 former state attorneys general signed a petition asking the U.S. Supreme Court to overturn convictions in the Siegelman case, stating that the case represented a misapplication of bribery law in the context of a campaign contribution.

Fuller might not have doubt about the presence of a bribe in the Siegelman case, but scores of law-enforcement professionals obviously do not share that view. It's likely that most of those who signed the petition have far more experience in the law than does Fuller.

Since Fuller raised the issue of certainty regarding some aspects of the Siegelman case, let's examine a few that he failed to mention--and there truly is no doubt about these:

* The prosecution was late in bringing its case, almost a full year after the five-year statute of limitations had expired. Records show that the alleged acts of bribery took place in summer 1999, and the original indictment came in May 2005. That's more than five years, but Fuller let it go;

* The defense requested a bill of particulars, pursuant to Rule 7 of the Federal Rules of Criminal Procedure, asking for details about the time frame when the alleged crimes took place. According to Federal Practice and Procedure: Criminal (C Wright, 2d edition, 1982), a request for a bill of particulars is to be liberally construed. But Fuller denied the defense information that would have shown the prosecution was barred by the statute of limitations.

* Fuller's jury instructions did not include the "explicit agreement" requirement spelled out in the controlling case law, McCormick v. United States, 500 U.S. 257 (1991). And they did not match the instructions given by U.S. Judge Myron Thompson in the trial and retrial of the Alabama bingo case. Thompson's instructions did match the language in McCormick, they resulted in zero convictions, and Thompson has proposed that they be used in all cases alleging bribery in the campaign-contribution context.

* Various individuals connected to the Siegelman case have filed affidavits stating the following:

(1) Chief government witness Nick Bailey was improperly coached;

(2) Bailey testified under pressure that he would be outed as a homosexual if he did not comply with prosecutors' demands;

(3) Prosecutors failed to turn over exculpatory evidence to the defense, as required by law;

(4) The jury was compromised by improper communications with members of the prosecution team;

(5) Certain jurors engaged in improper e-mail communications with each other;

(6) Fuller was compromised by his animosity toward Siegelman, dating to an investigation of the office where Fuller had served as a state district attorney.

Speaking of the tainted jurors, who could forget Katie Langer, the juror known as "Flipper" for her ability to entertain colleagues by doing back flips during deliberations? Langer was a gymnastics instructor when she served on the Siegelman jury. But once the case was over, and her guilty vote had been secured, she asked for a meeting with prosecutors, according to a report in the Montgomery Advertiser. She wound up going to Jones School of Law and reportedly passed the bar exam on the first try. She now works as a lawyer in the Montgomery County District Attorney's Office. Ms. Langer's professional fortunes seem to have taken a major turn for the better since she served on the Siegelman jury. The public should be asking, "How in the heck did that happen?"

Thinking citizens should not be swayed by Fuller's blind assertion from the bench that the Siegelman case involved a clear case of bribery. The truth? The Alabama bingo case, involved hours of wiretaps and far more compelling evidence than was present in the Siegelman case. But the judge gave proper jury instructions, based on controlling law, and the prosecutions yielded zero convictions.

The law on bribery involving campaign contributions, as set out in McCormick, presents a tough standard for prosecutors. That's because courts have found that a loose standard, such as the one present in Fuller's jury instructions, puts impermissible limits on First Amendment protections. One could make a strong argument that the convictions in Siegelman were not only unlawful, they were unconstitutional.

Overwhelming doubt exists about the presence of bribery in the Siegelman case. But even if the most gross sort of bribery had been present, the prosecution was barred by the statute of limitations.

The truth? Mark Fuller is a hopelessly corrupt judge, who unlawfully let an untimely prosecution move forward. And a compromised jury produced a conviction that did not square with the facts or the relevant law.

Note: I appeared last Friday on the California-based Karel Show to discuss the Siegelman resentencing. Peter B. Collins was serving as guest host, and you can hear a podcast of our conversation at the link below:

Karel Show: Hour 2, August 3, 2012

(Photo by Phil Fleming)


Anonymous said...

". . . Failure to Enforce the Rule of Law Destroys Economies, August 1, 2012, Punishment is justice for the unjust. - Saint Augustine (354 - 430)

The Main Driver of GDP Growth: A Strong Rule of Law, by George Washington, July 30, 2012

Economist Woody Brock says that a nation's GDP growth is based mainly on whether or not it follows the rule of law. Economist and investment adviser John Mauldin notes:

I had dinner with Dr. Woody Brock this evening in Rockport. We were discussing this issue and he mentioned that he had done a study based on analysis by an institution that looks at all sorts of "fuzzy" data, like how easy it is to start a business in a country, corporate taxes and business structures, levels of free trade and free markets, and the legal system. It turned out that the trait that was most positively correlated with GDP growth was strength of the rule of law. It is also one of the major factors that Niall Ferguson cites in his book Civilization as a reason for the ascendency of the West in the last 500 years, and a factor that helps explain why China is rising again as it emerges from chaos.

One of the very real problems we face is the growing feeling that the system is rigged against regular people in favor of "the bankers" or the 1%. And if we are honest with ourselves, we have to admit there is reason for that feeling. Things like LIBOR are structured with a very real potential for manipulation. When the facts come out, there is just one more reason not to trust the system. And if there is no trust, there is no system.

Dr. Brock is not alone. Economists have thoroughly documented that failure to enforce the rule of law leads to a loss of trust ... which destroys economies. This is true whether it is in the West, in Nigeria, or any other country.


Economic historian Niall Ferguson notes:

The World Economic Forum's annual Global Competitiveness Index and, in particular, the Executive Opinion Survey on which it's partly based ... includes 15 measures of the rule of law, ranging from the protection of private property rights to the policing of corruption and the control of organised crime.

It's an astonishing yet scarcely acknowledged fact that on no fewer than 15 out of 15, the United States now fares markedly worse than Hong Kong. In the Heritage Foundation's Freedom Index, too, the U.S. ranks 21st in the world in terms of freedom from corruption, a considerable distance behind Hong Kong and Singapore. [Transparency International puts the U.S. at 24th.]

Is it any wonder that we're still in an economic crisis?

Source: "The Main Driver of GDP Growth: A Strong Rule of Law," by George Washington, ZeroHedge.com, July 30, 2012 (Original article with links and notes)

Anonymous said...

Mark Fuller may be in for a BIG shock, when the "justice" in the US meets its "Waterloo"

". . . The rotten heart of finance" The Economist, "There is a degree of cynicism and greed which is really quite shocking" Lord Turner Bank of England , Financial Service Authority


Never in the history of the United States have we witnessed crimes committed on the scale and scope of the present day by both private and state elites.

An economist of impeccable credentials, James Henry, former chief economist at the prestigious consulting firm McKinsey & Company, has researched and documented tax evasion. He found that the super-wealthy and their families have as much as $32 trillion (USD) of hidden assets in offshore tax havens, representing up to $280 billion in lost income tax revenue! This study excluded such non-financial assets as real estate, precious metals, jewels, yachts, race horses, luxury vehicles and so on. Of the $32 trillion in hidden assets, $23 trillion is held by the super-rich of North America and Europe .

A recent report by a United Nations Special Committee on Money Laundering found that US and European banks laundered over $300 billion a year, including $30 billion just from the Mexican drug cartels.

New reports on the multi-billion dollar financial swindles involving the major banks in the US and Europe are published each week. England 's leading banks, including Barclay's and a host of others, have been identified as having rigged the LIBOR, or inter-bank lending rate, for years in order to maximize profits. The Bank of New York, JP Morgan, HSBC, Wachovia and Citibank are among scores of banks, which have been charged with laundering drug money and other illicit funds according to investigations from the US Senate Banking Committees. Multi-national corporations receive federal bailout funds and tax exemptions and then, in violation of publicized agreements with the government, relocate plants and jobs in Asia and Mexico .

Major investment houses, like Goldman Sachs, have conned investors for years to invest in 'garbage' equities while the brokers pumped and dumped the worthless stocks. Jon Corzine, CEO of MF Global (as well as a former CEO of Goldman Sachs, former US Senator and Governor of New Jersey) claimed that he "cannot account" for $1.6 billion in lost client investors funds from the collapse of MF Global in 2011.

Despite the growth of an enormous police state apparatus, the proliferation of investigatory agencies, Congressional hearings and over 400,000 employees at the Department of Homeland Security, not a single banker has gone to jail. In the most egregious cases, a bank like Barclay's will pay a minor fine for having facilitated tax evasion and engaging in speculative swindles. At the same time, the principle 'miscreant' in the LIBOR swindle, Chief Operating Officer (COO) of Barclay's Bank, Jerry Del Missier, will receive a severance payout of $13 million dollars.

The Ascendancy of a Criminal Financial Elite, The Two Faces of a Police State: Sheltering Tax Evaders, Financial Swindlers and Money Launderers while Policing the Citizens, by Prof. James Petras

Anonymous said...

Obama will pardon him in December---take it to the bank.

Anonymous said...

Why can't Obama pardon him now? Why does he have to wait until December. I'd do it now.

jeffrey spruill said...

What are the jurists who sit on the United States Court of Appeals for the Eleventh Circuit doing---picking their noses?

Wasn't this case eventually heard "en banc?"

The Supremes are to busy indulging politics so I understand that one!

legalschnauzer said...


An en banc hearing was denied. So the 11th Cir. is doing much more than just picking its collective nose. It is actively engaged in a coverup.

choggs said...

Well the judge thinks the media contributed to his downfall, I think he is sadly mistaken. When it gets to be at your disadvantage to dissent, its a bad day to be in American. In truth the people, in general, both parties, questions the way this case was handled. I think the judge shot his mouth at sentencing and it will come back to haunt him. The media should take offense to his words. So he has to report on 9/11 ewwww dramatic.

History has already judged you Judge Fuller

Anonymous said...

statement sounds telling of the judge, though after the fact his mind was made up prior to judgment,ie:judge jurist, and exicutioner, av

choggs said...

Everyone that put just a moment of thought in this case helped Don. Is the media or other defendents being bluffed? If I'm accused of a crime I didn't think I comitted, I will use every resource available to my advantage. If that means running my mouth then that is what I'll do