I've never known quite what to make of Scrushy, but I do know of at least one reason to admire him at this moment. Scrushy was released from federal prison last summer after serving 70 months for his convictions in the Siegelman case. Many individuals, after serving time in one of the most controversial criminal cases of recent decades, would wipe their hands of the matter and quietly get on with life.
But that's not Richard Scrushy. He seems convinced that he was wrongly convicted, that a broken justice system punished him for a non crime, and he remains intent on proving it. I admire that kind of principle and backbone in anyone. And in Scrushy's case, he is absolutely on target--he and Siegelman were railroaded by a bevy of corrupt lawyers, prosecutors, judges, and political operatives.
In his most recent brief to the U.S. Eleventh Circuit of Appeals, Scrushy points to the existence of evidence that likely will prove he and Siegelman never should have been prosecuted, much less convicted, under the law.
Will Scrushy be allowed access to that evidence, and will he be able to use it in a way that shows the Siegelman case was a cheat job of monstrous proportions? Those questions are at the heart of Scrushy's pending appeal, which included oral arguments before a three-judge panel in Atlanta on March 19.
Art Leach, Scrushy's chief attorney in the case, points to law that shows Scrushy is entitled to a review of the documents--and any others that might show his convictions should not stand. (The full brief can be read at the end of this post.)
Will the documents be unearthed, helping to prove what really happened behind the scenes of the Siegelman fiasco? Given the Eleventh Circuit's stupefying actions in the case so far, it's hard to imagine Scrushy's motion being successful. But it's also hard to imagine any lawful justification to deny a citizen's right to prove his criminal convictions were deeply flawed.
Consider, for example, the matter of former U.S. Attorney Leura Canary and her supposed recusal from the Siegelman case. In his brief on the current Scrushy appeal, Leach cites a pending Freedom of Information Act (FOIA) proceeding styled John Aaron v. U.S. Department of Justice, U.S. District Court for the District of Columbia, Case No. 1:09-cv-00831.
John Aaron, an attorney based in Alabaster, Alabama, filed a FOIA request in 2006, seeking DOJ records about Canary's role in the Siegelman case. When the Bush administration turned over almost no pertinent information, Aaron filed a federal lawsuit in 2009. The Obama DOJ also has stonewalled on the matter, but the Aaron lawsuit turned up some compelling information anyway.
A motion from Aaron's lawsuit, however, shows that Judge Coody is mistaken. Writes Leach in the Scrushy brief:
Scrushy cited to a summary judgment motion filed by the U.S. Attorney’s office in [the Aaron Freedom of Information Act proceeding]. A declaration attached to the summary judgment motion by Middle District of Alabama First Assistant Sandra Stewart shows that documents relating to the recusal of the U.S. Attorney not only exist, but had also been indexed. These materials include the entire file of the then-First Assistant and a CD containing “all the captured electronic records from U.S. Attorney Canary’s computer system. . . . ” At the time the magistrate found that no such documents existed, he was on notice that documents relevant to this issue had been gathered and indexed in the D.C. District Court proceeding.
What are the take-home points from this? I can think of at least two biggies:
* Electronic records from Leura Canary's computer system have been captured and indexed, meaning they are in a searchable format.
* U.S. Magistrate Charles S. Coody knew this when he found that no such documents exist. That strongly suggests Judge Coody is incompetent, wildly corrupt--or both.
Is Scrushy entitled to discovery on the Canary issue? Leach cites the applicable law, and it appears to be heavily in Scrushy's favor:
The standard for granting discovery is whether “there is a firm evidentiary basis for believing such evidence likely exists.” United States v. Velarde, 485 F.3d 553, 561 (10th Cir. 2007).
By citing information revealed in the Aaron FOIA case, Scrushy seems to have established beyond a doubt that "such evidence likely exists." The words of Sandra Stewart, Leura Canary's one-time chief lieutenant, make it clear.
Leach then points to law from the nation's highest court to support his contention that Scrushy's discovery requests are due to be granted:
As the Supreme Court held in Harris v. Nelson, 394 U.S. at 300, “where specific allegations before the court show reason to believe that a petitioner may, if the facts are fully developed, be able to demonstrate” that he is entitled to relief, “it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.”
Has there been an adequate inquiry on prosecutorial misconduct, juror misconduct, judicial bias, or any of the other ugly issues surrounding the Siegelman case? Art Leach's words in the Richard Scrushy appeal suggest there hasn't been much of an inquiry at all--adequate or otherwise.
(To be continued)