Oral arguments in Siegelman case might be overshadowed by reports about magistrate's deceit

Don Siegelman

Oral arguments in the Don Siegelman case are set to be heard today before the U.S. Eleventh Circuit Court of Appeals in Atlanta. But the proceedings might be overshadowed by revelations over the past week that a U.S. magistrate failed to review key documents in the case and then lied about it in his ruling.

We broke the story last week that U.S. Magistrate Charles S. Coody, from the Middle District of Alabama, claimed he had "thoroughly reviewed" documents related to the supposed recusal of former U.S. Attorney Leura Canary. But as we reported yesterday, lawyers for both Siegelman and codefendant Richard Scrushy state in court filings that Coody never even ordered the Canary-related documents from the U.S. Department of Justice, so he could not possibly have reviewed them. Subsequent rulings, at both the trial and appellate level, have gone against the defendants, based to a considerable extent on Coody's finding that the Canary documents presented no "exculpatory" matter.

Now we know that Coody lied about having reviewed the documents. And while our research indicates we are the first news site to break the story, we have found references--even in the Alabama mainstream press--that Coody did, in fact, fail to order the Canary documents. Also, a review of the case history shows that Siegelman and Scrushy moved for Coody to recuse himself--twice--and the judge refused to step down.

Based on developments of the past few days, is it any wonder that the defendants did not want Coody anywhere near their case? What kind of judge--what kind of person--claims he has reviewed material that could lead to reversal or a new trial for wrongly convicted parties, and then lies about it? Did Coody cross the boundary into criminal territory?

To be sure, this is not a matter of defense attorneys whining mindlessly about a judge in hopes their clients might catch a break. In an article dated November 3, 2011, reporter David White, of The Birmingham News/al.com, hinted at Coody's deceit, but did not shine a heavy light on it. White focused primarily on Coody's order requiring that prosecutors turn over a three-ring binder of notes that chief witness Nick Bailey allegedly used.

White never mentions Leura Canary by name, but his story includes:

U.S. District Court Magistrate Judge Charles Coody this morning ordered U.S. Attorney George Beck to present for Coody's inspection a copy of a binder used by a key prosecution witness [Nick Bailey] in the 2006 corruption trial of former Gov. Don Siegelman and HealthSouth founder Richard Scrushy.

Coody's order came a day after attorneys for Siegelman and Scrushy asked the magistrate to make government officials release documents that could show the two men deserve a new trial. Coody's order did not deal with any other documents.

White's readers probably did not know at the time what that last sentence was about. But now we know that it means the defendants asked for documents related both to Bailey and Canary--and Coody ordered only the ones related to Bailey.

Siegelman and Scrushy apparently did not trust Coody from the outset because they moved twice for his recusal. What were the grounds for asking the judge to step aside? Here is part of what the Tuscaloosa News reported:

Siegelman, former HealthSouth Chairman Richard Scrushy and former Siegelman transportation director Mack Roberts filed recusal motions, citing alleged conflicts of interest Coody has in the case. They included Coody’s wife hearing two of her students discuss frustrations by their road contractor father, who was a witness before a grand jury that indicted Roberts, and Coody’s grown children’s employment with or ownership of some of HealthSouth’s 396 million shares of stock.

Here is part of Coody's explanation for staying on the case, according to a report at onlinemontgomery.com:

U.S. Magistrate Charles Coody said his ability to remain impartial won't be affected by his son-in-law's position as a HealthSouth executive. Scrushy, who has pleaded not guilty to charges he bribed former Alabama governor Don Siegelman, had said Coody should recuse himself.

"My son-in-law has never discussed with me anything about internal corporate information to which he is privy," Coody said. "I have assured myself that my son-in-law's position with HealthSouth did not bring him into contact with any matter in dispute in this criminal case." . . .

Siegelman and two former cabinet members charged in the corruption case had sought Coody's recusal as well, saying he coached a debate team whose members included daughters of a potential witness. All the defendants have pleaded not guilty. Prosecutors opposed the requests, saying in a filing Thursday that Coody didn't "intimate that he could not be impartial."

Neither Coody nor prosecutors apparently bothered to check the required standard for making a determination on recusal. It is simply stated in 28 U.S. Code 455:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

What Coody's son-in-law might have said to someone is irrelevant. Whether Coody did or did not "intimate" anything about his impartiality is irrelevant. The question is: Given evidence regarding Coody's son-in-law role at HealthSouth, plus Coody's role as debate coach for daughters of potential witnesses, could the judge's impartiality be reasonably questioned? The answer almost certainly is yes, and that means--by law--Coody should have stepped down.

Those questions now seem trivial in light of what we now know about Coody's actions. It no longer is a matter of whether his impartiality could be "reasonably questioned"; he clearly was not impartial, he lied about it, and deprived the defendants of a fair hearing.

Did at least one judge, Charles S. Coody, commit criminal acts? That's the No. 1 question hanging over the Siegelman case now.