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Thursday, May 21, 2015

Eleventh Circuit panel uses cheat job on Richard Scrushy to justify its latest cheat job on Don Siegelman

Don Siegelman
If the U.S. Eleventh Circuit Court of Appeals cannot uphold the law and dispense justice, it can at least provide consistency. That seems to be the lesson from the court's opinion yesterday that upheld convictions against former Alabama governor Don Siegelman by pointing to its earlier ruling against codefendant and former HealthSouth CEO Richard Scrushy.

In the process, a three-judge panel virtually ignored perhaps the single most important issue raised on the Siegelman appeal--that, under the law, the former governor is entitled to discovery on whether former U.S. attorney Leura Canary abided by her supposed recusal in the case.

How did the Eleventh Circuit paper over this inconvenient truth? By essentially saying, "Well, we screwed Scrushy on this issue, so in order to be consistent, we have to screw Siegelman, too."

The panel didn't actually use those words. Instead, they used a fancy legal term called "law of the case." But when considered in the context of numerous erroneous rulings in the Siegelman matter, "law of the case" pretty much means, "We've made huge numbers of mistakes in this case, so we've got to keep right on making them."

How's that for postmodern American justice? Ain't it grand?

Ironically, the appellate ruling came just two days after our most recent post showing that a U.S. magistrate in Montgomery, Alabama, made unlawful rulings on discovery issues in the case--and lied about it in court documents.

Is Siegelman out of options? Technically, the answer is no. He could seek an en banc hearing of the full Eleventh Circuit (minus Birmingham-based Bill Pryor, who has enough conflicts in the matter to sink the USS Missouri.) He also could seek review from the U.S. Supreme Court, which already has declined to hear the case once. A presidential pardon is not out of the question. But the grim truth is this: The federal judiciary and the Obama Department of Justice (DOJ) are deeply invested in covering up scandalous actions in the Siegelman case, so it's hard to see help coming from either of them.

What if the public became enraged enough to conduct street protests, around the country, similar to those recently seen in Baltimore? The Siegelman fiasco merits that sort of outrage, but large numbers of Americans have moved on to other concerns--like when will Bruce Jenner officially become a "she."

As for the Eleventh Circuit's ruling yesterday, the appellate judges clearly based their Siegelman finding on the wildly deceitful actions of Charles Coody, a U.S. magistrate in the Middle District of Alabama. The panel judges also provided cover for their corrupt colleague. Neither of those moves should surprise anyone.

Coody is noted for denying Siegelman/Scrushy discovery requests on the Canary issue, after claiming to have reviewed all relevant documents himself in camera--and announcing they provided no helpful evidence for the defendants. Unfortunately, court documents show that Coody didn't even order the Canary documents from the DOJ (totaling some 1,000 pages), so he could not possibly have reviewed them.

How do the Eleventh Circuit judges deal with this slight problem? One, they reference a magistrate judge and his rulings, but they never mention Coody's name. Two, they act as if the Siegelman legal team didn't bring up the Canary discovery issue.

The truth, of course, is that the Siegelman appellate brief puts that issue front and center. This is from "Statement of the Issues" on page 1 of the brief:

1. Whether the participation in Siegelman’s prosecution by United States Attorney Leura Canary, after she had ostensibly disqualified herself from the case due to a conflict of interests, necessitates a new trial, or at least warrants an evidentiary hearing.

Beginning on page 29 of the brief, Siegelman lawyers devote almost three full pages to Canary-related discovery, under the heading, "At a Minimum, Siegelman Was Entitled to Discovery on this Issue." Here is the heart of the argument:

Even if these manifestations of Canary’s continuing involvement were not, by themselves, sufficient to warrant reversal, the district court erred by refusing to order further discovery. When discovery is sought in support of a motion for a new trial, discovery should be ordered “where specific allegations show reason to believe that the [defendant] may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Arthur v. Allen, 459 F.3d 1310 (11th Cir. 2006) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997))

In other words, Siegelman was entitled--under Eleventh Circuit case, backed up by U.S. Supreme Court precedent--to fully develop the facts. And that's because he made specific allegations that Canary's participation violated his constitutional right to a disinterested prosecutor.

How did the appellate panel deal with this central issue? It's a struggle to find it, in footnote 7 on page 13 of the ruling:

We also affirm the magistrate judge’s denial of Siegelman’s related motion for additional discovery on this issue. See Scrushy, 721 F.3d at 1303 n.27.

Again, the court is saying, in so many words, "We butchered this issue for Scrushy, so the law requires us to do the same thing with Siegelman."

That brings us back to the fancy "law of the case" notion. Here's how the court explains it:

As most commonly defined, the law-of-the-case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case .” Pepper v. United States, 131 S. Ct. 1229, 1250 (2011) . . .  Importantly, we also have held that the doctrine applies to those issues decided on a co-defendant’s earlier but closely related appeal. See United States v. Bushert, 997 F.2d 1343, 1356 (11th Cir. 1993) (holding that the co-defendants’ prior appeal mooted any subsequent appeal by the defendant under the law-of-the-case doctrine because the defendant’s appeal would have challenged the same joint motion that his co-defendants’ appeal had unsuccessfully challenged).

Does "law of the case" always apply? No, and the court writes:

There are some narrow exceptions to the law-of-the-case doctrine. See United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996) (“We have recognized narrow exceptions to the law of the case doctrine, where there is new evidence, an intervening change in controlling law dictating a different result, or the appellate decision, if implemented, would cause manifest injustice because it is clearly erroneous.”). We conclude that none of these exceptions apply here . . . 

This is a classic example of how a corrupt court works. It says that Siegelman could overcome "law of the case" with new evidence, but it denies the opportunity to obtain new evidence--even though Siegelman is entitled to it under the binding precedent of Arthur v. Allen.

Does binding precedent matter in federal cases that arise in Alabama, Georgia, and Florida--the three states covered under the Eleventh Circuit? The obvious answer is no, not when precedent would interfere with the court's predetermined outcome.


Anonymous said...

Is anyone surprised by this? This court is not going to turn back now on the train wreck Bill Pryor set in motion. After all, Pryor is one of them now.

Berle said...

How can you have "law of the case" when you haven't followed the law this whole time?

legalschnauzer said...

You make a good point, Berle: Law OF the case should only apply when the law IN the case has correctly been applied.

Anonymous said...

Thanks for your analysis on this, LS. The lamestream media has given up on trying to inform the public about what really has happened to Gov. Siegelman. We need this kind of reporting.

Anonymous said...

Once again the United States government appears to be at least complicit in another state crime against its own citizens… and then applying a media blackout to any real investigative reporting that would ask the dozens of questions to get to the truth. Even the defendant’s legal representation abandoned Tsarnaev’s right to a fair trial, and by co-opting to act in accordance with the government’s “no questions asked” implicitly applied gag-rule, it too is complicit in this heinous crime for neither seeking the truth nor any real justice for either the defendants or the scores of victims. The US crime cabal and its fabricated “war on terror” is perpetuated globally, both on US soil and around the world as an ongoing crime against humanity. The truth behind 9/11 is in-our-face, and so is the truth behind these Boston bombings. The criminals in Washington must pay for their crimes.

Joachim Hagopian is a West Point graduate and former US Army officer. He has written a manuscript based on his unique military experience entitled “Don’t Let The Bastards Getcha Down.” It examines and focuses on US international relations, leadership and national security issues. After the military, Joachim earned a master’s degree in Clinical Psychology and worked as a licensed therapist in the mental health field for more than a quarter century. He now concentrates on his writing and has a blog site at http://empireexposed. blogspot. com/. He is also a regular contributor to Global Research and a syndicated columnist at Veterans Today.


There is a global plan in place and every so called legal directive is the tale tell of what is and more to be, not ready is to be expected in the majority of poor US ship of fools

Anonymous said...

Charles Coody needs to be investigated. Who paid him off?

Anonymous said...

So much for the idea that Greg Craig would help on the appeal.

legalschnauzer said...

In all fairness, I think Siegelman's lawyers have done a pretty good job--with the exception of Doug Jones, who charged $300,000 early on and accomplished nothing that I can see. Most of the Siegelman briefs I've read have been well done, and they are correct on the law.

Even the best of lawyers often are hamstrung when dealing with a corrupt judge--or in this case, multiple corrupt judges. The finest briefs in the world don't do you much good if a judge or judicial panel is determined to ignore them.

You have to attack judicial corruption in other ways. In essence, you can't deal with them head-on because they are dishonorable people. You have to go at it from behind, in a way that they aren't expecting.

Guy Guyguy said...

Please remind us all how the odious Bush-Rat Thug William Pryor attained his seat in the first place.

How BAD does a Federal Appeals Court have to be to arouse attention of Congress?
For example, dismissing Don's appeal years ago on the Statute of Limitations discover requests denied by Judge Mark 'Wife-Beater' Fuller. . The whole case should have been tossed out of Court.

Anonymous said...

excerpt and read pryor's sworn under oath testimony before the senate judiciary committee, please. prior to, during, and post event is built on lies!

legalschnauzer said...

You say "post event." To what event is that referring?

For one thing, I feel certain Pryor was asked if there was anything in his background that would embarrass either him or the president who nominated him--and he apparently neglected to mention his history with 1990s gay porn.

Anonymous said...

LS @ 9:31 PM May 22

Actually no, he wasn't, not in the way we can remember others during their appearances.

True, Bush did appoint Pryor, but after many years of researching there does exist the possibility that the President might have been compromised in his decision making; someone running interference guaranteeing Pryor is promised federal judgeship for sealing Baldwin county's ballot boxes 2002 governor's race, defeating Siegelman's re-election bid.

Maybe not commonly known that Sessions was Pryor's mentor; Sessions while Alabama AG engaged in his own political hatchet jobs, i.e. when was thought Jim Folsom, Jr. was going to run against Fob James; Sessions brought in FBI agents from Mobile, Sessions hometown area, to in parallel circumstances do unto Folsom as later was done to Siegelman after Folsom didn't run 1998 because of all the maliciousness accusations of corruptions. But why did Sessions and Pryor "quietly" drop all investigations of Folsom after such exhaustive investigative expenditures? Upon arriving in Washington as new Alabama Senator replacing Heflin, Sessions refused to answer/respond to media questions about Folsom's strange conclusion; likewise Pryor's response left one believing that he had never heard name Folsom. Enter Governor Don Siegelman 1998. Bill Canary, Karl Rove and Pryor, who is task with responsibility to start investigating Siegelman almost the first day.

Aside from James out, wanting back in true Pryor and Siegelman were of different political opinions especially when involving "Tobacco", enter Rove as Pryor's wet nurse, another Canary into the fray against Siegelman, she had some good credentials, one of her relatives having been Alabama Attorney General when Albert Patterson was assassinated in Phenix City running on platform to rid organized crime and government corruption; left the state for Texas before getting caught.....

But what is not commonly known involving Pryor is that he personally engaged/intervene in public's ethic's complaints to such extents made mute when he was never requested by individuals or authorities.

Whether he posed naked once or in playboy is of no importance, minimal by comparison when directing and/or overseeing the violating and/or denials of Alabamians' equal rights, equal protections, and due processes while performing in his official capacity under color of law for the serving of one specific purpose, government corruption.

Pryor like Sessions repeatedly ignored and refused request to cause and/or cause to be caused specific lawful and legal actions which now may becoming attached to current AG. Pryor left an abyss that's going to demand public get involved.
what two major, without statute of limitations, U.S.C. Title 18s, did 1973 Watergate have? Therein lies bottom of abyss!

Anonymous said...

May 23 9:22 PM

Correction: When involving all the felonious criminal activities in anyway related to Watergate, there was never even a suggestion of ties directly or indirectly to these two unrestricted statute of limitations U.S.C. Title 18s, therein the hurdle that Pryor attached himself and his office; lied before Senate Judiciary Committee, with Sessions in attendance leaves one to wonder how does Senator Warren Hatch, Utah, Senator Diane Feinstein, California, feel about being made fools of rights before them, making mockery of everything the hearing designed to accomplish....
but too, when viewing all the references made available in support of Pryor, how they would also feel if being made cognizant of facts and truths covered-up.

Anonymous said...

From May 24 3:48 PM

LS, an alert notice appeared after my attempt to send remaining two comments that they were being edited.........

Obviously not for show!

What do you think?

legalschnauzer said...

@3:58, I don't know what would cause such an alert to appear. If you can copy it and send to me at my e-mail address (rshuler3156@gmail.com), I would be glad to take a look at it.

I'm not aware of any function in Blogger that allows for editing of comments. You can moderate them, and allow or disallow them, but I don't think the proprietor can edit them.

Anonymous said...

LS May 25 6:16 p.m.

Like a flash, on and off

legalschnauzer said...

Hmmm, don't know what that could be. You are welcome to contact me via e-mail. That might give me a better idea of what is going on. It might be something that is beyond my control, a problem with Blogger or your computer or network, etc. Will see if I get similar reports from other readers.