Schnauzer to the Washington Post, Part II

To: Carrie Johnson, staff writer

From: Legal Schnauzer

Re: "Former Ala. Governor Turns Tables on Justice Department"

Ms. Johnson:
Please allow me to point out several areas for further exploration regarding the Don Siegelman case and the Bush Justice Department:

Beyond Assertions
You state several times that Siegelman makes "assertions" that he was railroaded. The record shows that his assertions are grounded in substantial fact. Perhaps the document that most strongly supports Siegelman's assertions comes, ironically enough, from U.S. Judge Mark Fuller, who oversaw the case. When the 11th Circuit Court of Appeals ordered Fuller to issue an opinion justifying his decision to deny bond pending appeal, Fuller failed miserably to meet his burden under the law. The following posts show just how badly Fuller missed the mark on his decision to deny bond. And they also raise substantial questions about Fuller's administration of the entire case:

http://legalschnauzer.blogspot.com/2008/01/checking-out-mark-fuller-shuffle.html#links

http://legalschnauzer.blogspot.com/2008/01/rechecking-mark-fuller-shuffle.html#links

http://legalschnauzer.blogspot.com/2008/01/fuller-makes-siegelmans-case-for-him.html#links

http://legalschnauzer.blogspot.com/2008/01/mark-fuller-naked-in-town-square.html#links

An Unfit Judge
The posts above show that U.S. Judge Mark Fuller played fast and loose with the facts and the law in the Siegelman case. But a review of Fuller's background shows that he had clear conflicts of interest and never should have been assigned to the case. The most disturbing aspect of Fuller's background: While Fuller served as a district attorney, an audit was conducted of questionable business practices in his office. That audit was conducted while Don Siegelman was governor, raising the question: Did Fuller have a grudge against Siegelman, and did that color his handling of the case? Even more damning, Missouri attorney Paul Benton Weeks filed an affidavit in a separate case, raising claims of unethical and possibly criminal actions by Fuller. The following post provides details about Fuller's background:

http://legalschnauzer.blogspot.com/2007/11/mark-fuller-two-timer.html#links

Conflicted Prosecutors
You state again that Siegelman "asserts" that Republican operatives conspired to manufacture a case against him. These assertions are based in pertinent fact. It's a fact that U.S. Attorney Leura Canary is the wife of Bill Canary, who served as a campaign advisor for Siegelman's opponent, Bob Riley. It's a fact that no one has produced evidence that Leura Canary ever actually recused herself from the Siegelman case. And it's a fact that normal procedure calls for a U.S. attorney from outside Canary's district to be appointed in the event of her recusal. Instead, the case was moved to one of Canary's deputies, someone who answers to her.

http://legalschnauzer.blogspot.com/2007/09/strange-sort-of-recusal.html#links

The Rove Sideshow
As you note, Siegelman does not have proof at this point of Karl Rove's involvement in the case. But Rove's possible involvement is only a sidebar issue. The key point is this: Close examination of the case shows that Don Siegelman was convicted of crimes he did not commit. How could this happen? Again, Judge Fuller's own memorandum opinion shows that he gave the wrong jury instructions. Bribery is the crime that has received the most attention in the Siegelman case. But five of the seven counts upon which Siegelman was convicted involve honest-services mail fraud. And as we have shown in numerous posts, honest-services mail fraud is not a crime about money; it involves a public official actually depriving the public of his or her honest services. In this case, that could only have been done if Siegelman had appointed an unqualified individual to the Hospital Certificate of Need Board. But Richard Scrushy, former CEO of HealthSouth, clearly was qualified and had served on the board under three previous governors. As for bribery, Fuller's own words show that he did not require a finding of a quid pro quo (something for something) arrangement in his jury instructions. Eleventh Circuit precedent requires a quid pro quo for a bribery conviction. Fuller essentially allowed the jury to convict Siegelman of an offense that does not exist.

http://legalschnauzer.blogspot.com/2008/03/schnauzer-greaseball-awards.html#links

New Trial or Reversal
You state on a couple of occasions that an Atlanta appeals court will determine whether Siegelman should win a new trial. I'm not a lawyer, but my understanding is that the appellate court also could reverse the trial court and award Siegelman an acquittal. I don't pretend to know all of the factors that might go into a possible reversal. And I understand that the awarding of a new trial is more common than a reversal. But Fuller's own memorandum opinion shows that the trial court's handling of this case was so off target, that I think a reversal is possible--and almost certainly justified.

Examining the Press
The Alabama press, particularly the Mobile Press-Register and The Birmingham News, merit strong scrutiny for their handling of the Siegelman story. Scott Horton, of Harper's, is a Columbia University law professor, and he has written extensively about the two papers' apparent coziness with prosecutors in the Siegelman case. Eddie Curran, of the Mobile Press-Register, wrote more than 100 investigative articles that are credited with sparking the federal government's Siegelman probe. On the surface, Curran's work appears to be an impressive example of hard-nosed journalism. And he certainly portrays Siegelman as a "wheeler-dealer" governor. But I've yet to see any indication that Curran has an understanding of the criminal statutes that wound up being applied to the Siegelman case. In other words, Curran's reporting generated much "sound and fury," but it did little if anything to show that Siegelman's behavior amounted to federal crimes. And Curran's bizarre personal behavior merits scrutiny by other reporters. He certainly does not advance the idea of an objective reporter, and we've noted his strange rantings numerous times on my blog. It has been well reported that Curran has a book deal based on the Siegelman case, but it seems clear that his book deal is likely to turn sour if Siegelman's conviction fails to hold. Has Curran stayed "above the fray" and followed the story wherever it leads? Doesn't look like it.

http://legalschnauzer.blogspot.com/2008/03/eddie-curran-fires-spitballs-at-60.html#links

http://legalschnauzer.blogspot.com/2008/02/deconstructing-eddie-curran.html#links

Mississippi Churning
You state that the Justice Department is "vulnerable to allegations of politically tainted actions." Again, you are being much too kind to the Bush DOJ. No case is a more blatant example of a political prosecution than the Paul Minor case in Mississippi. Attorney Paul Minor and former state judges Wes Teel and John Whitfield are in federal prison, convicted of crimes they clearly did not commit. How can I be so sure in making that statement? I wrote a 25-part series of posts called "Mississippi Churning," showing that U.S. Judge Henry Wingate gave grossly incorrect jury instructions and made wrongful evidentiary rulings that essentially kept Minor & Co. from putting on a defense. Here is one of my most recent posts on the Minor case, showing its connections to the Siegelman prosecution.

http://legalschnauzer.blogspot.com/2008/04/unearthing-siegelmanminor-gameplan.html#links

In short, your story on the Siegelman case is a good start. But I hope the Post will devote its considerable resources to digging deeper on this topic. The Bush DOJ/U.S. Attorneys scandal reaches from coast to coast, with brush fires in Pennsylvania, Wisconsin, New Mexico, and Washington, to name a few states. But the scandal has its genesis in the South. And much more reporting needs to be done in Alabama and Mississippi.

Rechecking the Mark Fuller Shuffle

More thoughts on the memorandum opinion by U.S. District Judge Mark Fuller, explaining his reasons for denying Don Siegelman's motion for release pending appeal. The more you study Fuller's memorandum, the more you understand why he put off writing it for so long. Fuller is like a fifth grader who did not do his homework, and now is having to explain that to his teacher. As you will see, Fuller's written explanation has holes large enough to drive a Peterbilt through:

* It's impossible to conduct a thorough analysis of Fuller's opinion without access to a trial transcript. We are forced to accept Fuller's version of events because we have no transcript to check against the judge's opinion. In fact, news comes today that the court reporter has been granted a second extension, until March 31, to complete the transcript. So that's almost another two months that Siegelman and Richard Scrushy must remain in prison because of the court's incompetence. And who is responsible for ensuring that a transcript is completed in a timely fashion? According to Scott Horton, of Harper's, it's Fuller himself.

* Here's a question for you: If no one has access to a transcript, how did Fuller manage to complete his opinion released this week? More than half of the 30 pages consist of his recitation of events in the trial. How did he come up with those events if he doesn't have a transcript? Does he have a spectacular memory? If his memory is so spectacular, why could he not remember that he is responsible for ensuring that a trial transcript is prepared in a timely manner? And if more than half of Fuller's opinion is based simply on his memory of events, how much stock should we put in it?

* We noted in our previous post on this subject, that only 14 pages of Fuller's 30-page opinion dealt with the questions posed by the U.S. 11th Circuit Court of Appeals. Of those 14 pages, almost six deal with the obstruction of justice charge against Siegelman. I've stated here many times that I am not a lawyer. But based on my legal research, obstruction of justice appears to be what I would call a "piggyback" charge in criminal law. In that regard, it seems to be similar to a charge of conspiracy. By definition, conspiracy cannot be charged without other charges being involved. And it seems that obstruction of justice, in the vast majority of cases, would only "ride along" with other, more fundamental, charges. My point is this: I don't think the jury in the Siegelman case would have gone for a guilty verdict on the obstruction of justice charge without also making a guilty finding on at least one of the more fundamental charges. For that reason, the obstruction of justice charge is somewhat extraneous, so I won't spend much time on Fuller's statements about that.

* The two fundamental charges in the Siegelman case were federal-funds bribery and honest-services mail fraud. And interestingly, Fuller uses barely two pages to address the two most important issues in the trial--that's two pages out of a 30-page memorandum. The memorandum is available here. Fuller's discussion of these critical subjects begins in the middle of page 27 and runs to the middle of page 29. Makes you think he doesn't want to talk about them much.

* And here is why Fuller probably does not want to talk much about federal-funds bribery or honest-services mail fraud. A close reading of Fuller's opinion suggests that the judge either does not know, or is intentionally misstating, the law on those two key charges. Fuller states that Siegelman's motion does not establish that a conviction under 18 U.S. Code 666 (bribery) or 18 U.S. Code 1346 (honest-services mail fraud) must be predicated on an explicit quid pro quo. I don't know the various cases Siegelman's lawyers cited in their motion. But there is no question that 11th Circuit precedent requires a quid pro quo for a bribery conviction. I don't have the first day of law school, and I was able to find that case law, so I feel certain Siegelman's attorneys were able to find it, too.

* The most recent 11th Circuit case on bribery appears to be U.S. v. McCarter, 219 Fed. Appx. 921 (2007). The McCarter opinion could not be more clear: "To prove a defendant is guilty of bribery, the government must prove there was "a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." The McCarter court cited U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, a well-known U.S. Supreme Court decision related to bribery from 1999.

* Did Fuller's jury instruction on bribery reflect this language? He claims that it did--sort of. He says the jury was "sufficiently apprised" of the quid quo pro requirement. Sufficiently apprised? What the heck does that mean? Either the jury received the language noted above--or language very similar to it--or it didn't. That's the law in the 11th Circuit, and we're not talking about a close call here. If Fuller's jury instruction did not pretty much mirror the language noted above, the conviction of Siegelman and Scrushy was based on trumped-up law. Of course, we could check the jury instruction if we had a trial transcript. But we don't, thanks largely to Fuller. Maybe he doesn't want the public to know what his jury instruction was, not when he can keep Siegelman and Scrushy languishing in prison for as long as possible.

* Even more troubling is the fact that Fuller ties bribery and honest-services mail fraud together in his statement regarding quid pro quo. Honest-services mail fraud has nothing to do with a quid pro quo, and a federal judge should know that. You can learn what mail fraud actually is here. At the heart of the offense is "a willful act by defendant with specific intent to deceive or cheat." It's hard to see how Siegelman committed an act to deceive or cheat by appointing Scrushy to a spot on the Certificate of Need (CON) Board, especially when Scrushy had served on the board under three other governors. And at least one of those governors, Republican Fob James, received a major campaign contribution from Scrushy.

* In the 14 pages relevant to 11th Circuit questions, Fuller makes one reference to honest-services mail fraud. It's the second most important charge in the indictment, and the judge makes one passing reference to it? Makes me think the government's case against Siegelman on this charge was incredibly weak, and Fuller either knows it or he simply hasn't bothered to educate himself on the relevant law.

* Let's get to the heart of the matter, the whole reason for Fuller's memorandum. On page 16, he lays out a four-pronged test for determining whether the defendants should be detained pending appeal. The four-pronged test is based on language from U.S. v. Giancola, 754 F. 2d 898 (11th Cir., 1985). Fuller and the government seem to concede that Siegelman meets the first two prongs--that he is not likely to flee or pose danger to the safety or others; and his appeal is not for purposes of delay. So it comes down to prongs 3 and 4: Does the appeal raise a substantial question of law or fact; and if that substantial question is determined favorably to the defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts.

* It's shockingly easy to answer the questions raised by prongs 3 and 4--and the answer is yes. And that means Siegelman and Scrushy, by law, must be released pending appeal. Why do I say it's easy to make this determination? Well, Fuller's own language makes it clear that he either doesn't know, or is intentionally misstating, the law related to the two most important charges--federal-funds bribery and honest-services mail fraud. As we've shown above, Fuller indicates that he is not aware that a bribery conviction requires a quid pro quo. And Fuller's own words indicate that he knows next to nothing about honest-services mail fraud. So we clearly have substantial questions of law because the judge himself has shown that he doesn't have much of a clue what the law really is

* And as for questions of fact: Without a transcript, there is a question about every fact in the case. In fact, without a transcript, there is a question about every element of law raised in the case. I've got a stump in my backyard that could get this right: Siegelman and Scrushy, by law, must be released pending appeal--and by law, they never should have been imprisoned in the first place. Will the 11th Circuit get it right? Don't hold your breath. My guess is that the 11th Circuit does not want to expose Judge Mark Fuller for the corrupt bozo that he is. Better that Siegelman and Scrushy unlawfully remain in prison rather than the public know what Mark Fuller really is all about.

* Methinks we are now understanding why Fuller waited so long in "answering" the 11th Circuit's queries. He has neither the facts nor the law on his side, so he is going into a stall--a legal version of the old "four corners" offense North Carolina used to employ in college basketball. Will the 11th Circuit, or perhaps Congress, force Fuller out of his stall by employing a serious full-court press? It's about time someone did.

Siegelman Judge Appears to be both Corrupt and Gutless

We've written before about the classic scene from Animal House where Dean Wormer tells Kent Dorfman, "Fat, Drunk, and Stupid is no way to go through life, son."

That scene came to mind again recently when we read the latest news about Mark Fuller, the federal judge in charge of the Don Siegelman case. The Montgomery-based judge wants another judge to determine if Fuller should recuse himself--even though the record is filled with evidence that Fuller never should have been on the case in the first place.

What would Dean Wormer tell Mark Fuller? "Corrupt, gutless, lazy, and whiny is no way to go through life, son."

But that's the way Mark Fuller is, and he shows no sign of changing.

It's been apparent for a long time that Fuller is corrupt. The rampant errors in the Siegelman case prove it. John Caylor, a veteran investigator and journalist in Alabama and north Florida, has called for Fuller's impeachment. Caylor knows the territory from growing up with Fuller in Enterprise, Alabama. Here's how we reported it in an earlier post:

"Mark Fuller is dirty," Caylor says. "I personally know he is dirty. Moreover, I know the whole damn bunch associated with him."

How does Caylor know? It's partly because of his own family ties to the Dixie Mafia. Caylor's father was police chief in Enterprise, a welcoming figure for mobsters looking for a new home after being kicked out of Phenix City. Fuller's father was a state district attorney in Enterprise.

Fuller, Caylor says, has held a longstanding grudge against Siegelman and railroaded the former governor as part of a sweeping effort by the George W. Bush administration to prosecute prominent Democrats. Caylor once lived near Karl Rove in north Florida, and says the former White House strategist directed the scheme to target Siegelman and others.

So we've established the corrupt part. What about gutless? Under 28 U.S. Code 455, it is abundantly clear that Fuller has a duty to recuse himself--on multiple grounds. The law says a judge "shall disqualify himself . . . . " In other words, Fuller has an obligation under the law to act, but he is shoving it off on another judge.

As for lazy, codefendant Richard Scrushy filed the motion to recuse on June 26, 2009, and Siegelman joined it last October. So Fuller has been sitting on the motion for almost a year, and is only acting now because Scrushy recently filed a motion that said, in so many words, "Get off your ass and do your job!"

As for whiny, get this from Fuller's latest memorandum opinion:

The Court has taken no particular pleasure in presiding over this matter. Nonetheless, it has not been an unbearable burden either. Should the judge to whom the instant motion to recuse is referred decide that the Court need not disqualify itself, then there will be a further duty for this Court to perform in this case, and the Court will, as it must, perform that duty conscientiously.

Well, doesn't that ease your mind? Presiding over the Siegelman case has not been an "unbearable burden" for Fuller. Sure nice to know that the case is all about him. Also nice to know that a federal judge isn't burdened by the fact that his corrupt actions have caused two innocent men to go to prison.

It's also clear, from this statement, that Fuller intends to stay on the case--in spite of what the law says--unless another judge forces him off.

Mark Fuller: What a waste of carbon. This guy makes Kent Dorfman look like one of life's winners. You can check out Fuller's latest handiwork below:

Fuller Recusal

Mark Fuller: Naked in the Town Square

A historic moment in American journalism might have occurred in recent days.

I don't think an unindicted judge, either federal or state, ever has been laid bare quite the way U.S. District Judge Mark Fuller was last night in a post by Scott Horton, of Harper's.org.

Based on my research, it appears that judicial corruption almost always comes to light only when government authorities initiate investigations. As a general rule, American journalists give judges a huge, unwarranted free pass. A rare exception I am aware of came in 2006 with a major investigation by the Los Angeles Times of judges in Las Vegas.

But Horton hardly gives Fuller a free pass. In fact, he leaves the federal judge--who oversaw the prosecution of former Alabama Governor Don Siegelman--wearing little more than a fig leaf.

We have no evidence that Fuller is under investigation for his handling of the Siegelman case. And as long as Bushies run the Justice Department, Fuller almost certainly will not be investigated. But that doesn't keep Horton from taking a fillet knife to Fuller's carcass and opening him up for all to see.

Here at Legal Schnauzer, we like to think we've played some role in Fuller's exposure. In a series of recent posts, we have shown that Fuller's legal reasoning has more holes than the Miami Dolphins' defensive line. Specifically, we have focused on Fuller's 30-page memorandum opinion that is designed to show why Siegelman should remain in prison pending appeal. But we show that Fuller does just the opposite: The judge's own words reveal clear substantial questions of law and fact that require that Siegelman be freed while his appeal unfolds.

It's reassuring to have someone of Horton's stature join us in taking an extremely dim view of Fuller's handiwork. But Horton does more than that. He adds important context and analysis to the matter. And his investigative work adds new details that put Fuller in an especially unflattering light.

Some highlights from Horton's latest:

* "[The] opinion, which I have examined and shared with several of my lawyer and legal academic colleagues, is farcical, the sort of thing that any judge would be ashamed to allow to see the light of day. . . . It reflects a third-rate legal mind. . . . It fails to provide any meaningful explanation for his decision. The weakness of this document serves further to underscore the now pervasive suspicions of improper motive."

* On the investigative front, Horton reveals intriguing ties between Fuller, the Bush administration, and Alabama's current governor, Republican Bob Riley. You might recall that the day after Siegelman was sentenced, Riley canceled an engagement in Alabama and rushed off to Washington. His explanation? He had to meet with Air Force officials in order to promote the interests of Alabama companies seeking contracts. Horton reports that this explanation was true. And who was to benefit from Riley's efforts. Well, one of the companies pushing at that time for a lucrative contract was Doss Aviation, which is owned by Judge Mark Fuller. Shortly after that, Fuller reports, the Bush administration made a decision that helped Judge Fuller become a very wealthy man--it took steps that led to the Air Force awarding an $18.1 million contract to Doss Aviation.

* And how did Fuller come to be in charge of Doss Aviation? "How he and his family came to operate and then control Doss is, I am told, a fascinating story," Horton writes, "and it has a long track record of extremely murky dealings through the seventies." Hmmm, sounds like more might be coming on that.

* Horton concludes by issuing a call to action: "Congress has the duty to expose misconduct by government actors and misbehaving judges. Ultimately that includes the right to remove them from their sinecures. . . . Congress needs to issue subpoenas requiring the offending parties to appear and submit to questions under oath. It's time to bring this farce to an end and hold those who have dragged our justice system through the mud to account for their misconduct."

I couldn't agree more. But I would take it a step further. At one point, in reference to the Siegelman matter, Horton writes, "The stench from this case just couldn't get any stronger."

Horton is correct. But let's not forget the Paul Minor case in Mississippi, another case involving a blatantly corrupt federal judge. And it has resulted in three innocent men languishing in prison.

And let's remember that the stench does not end with federal courts. Alabama's state courts also emit noxious odors. The recent Alabama Supreme Court ruling overturning a multibillion-dollar verdict against oil giant ExxonMobil is just the most recent example of wrongdoing in our state courts.

My sources tell me they are aware of numerous cases, many involving regular folks, where Alabama's appellate courts allow clearly unlawful trial-court judgments to stand. And how do the appellate courts accomplish this? By abusing the state's no-opinion confirmance rule. That allows them to confirm an unlawful lower-court ruling without issuing an opinion, effectively sweeping judicial corruption under the rug.

I know for sure of one state-court case--mine--where trial and appellate judges have behaved in ways that are straight from the Mark Fuller school. And like Scott Horton, I'm sharpening my fillet knife to lay them bare in the public square.

Fuller Makes Siegelman's Case for Him

Former Alabama Governor Don Siegelman probably thought U.S. District Judge Mark Fuller never would do him a favor. But Fuller has inadvertently done just that.

The point of Fuller's recent 30-page memorandum opinion was supposed to be that Siegelman should remain in federal prison pending appeal. But the opinion does just the opposite. In fact, Fuller actually makes Siegelman's case for him--showing that, under the law and the facts, Siegelman must be released from prison pending appeal.

How could a federal judge, someone you assume to be rather intelligent, make such a gaffe? My only explanation is this: People who are attempting to cover up wrongdoing are prone to step in doo-doo. And if you actually read Fuller's opinion with a somewhat critical eye, it becomes clear that the judge has stepped in doo-doo big time with this one.

And that makes me think he is doing his darnedest to cover up a sham of a prosecution.

With two recent posts, we have shown that Fuller's own memo proves that Siegelman, by law, should be released from prison pending appeal. And it's not even a close call.

Fuller worked up a 30-page memo in an apparent effort to make this look like a complicated matter. Well, it isn't. All you need to do is read roughly three pages of his opinion, conduct some quick legal research and . . . presto, you see that Judge Mark Fuller is blowing some serious smoke.

Here's an easy way to sum it up:

* The key question is: Does the appeal raise a substantial question of law or fact that, if found in the defendant's favor, would result in reversal or an order for a new trial.

* Fuller's own words show there is a substantial question of law on both key charges--federal-funds bribery and honest-services mail fraud.

* On bribery, Fuller indicates there is some question whether 11th Circuit law requires a quid pro quo, a "something-for-something" arrangement, in order to have a conviction. And as we have shown from a 2007 case--U.S. v. McCarter, 219 Fed. Appx. 921--there is no question about it. The language in McCarter is clear: "To prove a defendant is guilty of bribery, the government must prove there was a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." And McCarter is based on a 1999 U.S. Supreme Court decision, so its grounded in pretty solid stuff. So there you have it: The judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 1, Fuller 0.

* On honest-services mail fraud, Fuller indicates that he has no clue what he is talking about. He states that there is some question whether a quid pro quo is required for a mail-fraud conviction. And as we have shown, a quid pro quo has nothing to do with mail fraud. It is not remotely an element of the crime. Once again, the judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 2, Fuller 0.

* As for questions of fact, all facts are in question because there is no transcript of the case--and there won't be one for at least another two months. Fuller spends almost 16 pages of his memo reciting his version of facts in the case. But those are not facts, in a legal sense, at all. And one can only wonder what dark crevice he pulled them from. Score: Siegelman 3, Fuller 0.

I would say Siegelman is pitching a shut out, and Fuller is toast.

Does this mean the 11th Circuit Court of Appeals will be releasing Siegelman from prison any moment? Of course not. That court is made up of judges, and the whole point of this blog is to show that judges often are the last people you want to trust with the law. And for all I know, the 11th Circuit might consist of justices whose respect for the law may be no greater than Fuller's.

But if the law still means anything in the Age of Rove--and that's a mighty big if--Don Siegelman should be out of prison pretty darn soon.

Mark Fuller's own words prove it.

Siegelman: Free at Last, Free at Last

Just last night here at Legal Schnauzer, we wrote a post that included this passage about the Don Siegelman case:

The 11th Circuit required trial judge Mark Fuller to justify in writing his decision for denying Siegelman bond pending appeal. We showed here that Fuller did not even come close to meeting his burden under the law. The facts are simple: By the trial judge's own words, Don Siegelman must be freed pending appeal. But he is looking at probably another 11 months in prison while the 11th Circuit does nothing about Fuller's remarkably weak memorandum opinion.

Here's a question: Why did the 11th Circuit ask Fuller to write the opinion if they weren't going to act on it?

Turns out the 11th Circuit was going to act all along--the justices were just taking their sweet time. Action finally came today when the court issued a four-page ruling releasing Siegelman from federal prison pending appeal.

The announcement set off much rejoicing among Siegelman supporters and many Democrats and progressives. But the news should have been welcomed by people of all political stripes. Whether you believe Siegelman was innocent or guilty, whether you think his prosecution was honest or tainted by politics, this much is clear: Under the law, he never should have been imprisoned while his appeal was in progress. That Siegelman spent the past nine months in federal prison is a disgrace to our justice system. The rules that allow a federal district judge to take such action need to be examined.

Word of Siegelman's release was not the only good news for folks who care about justice. Earlier in the day, a story broke that the House Judiciary Committee asked the Justice Department to temporarily release Siegelman, allowing him to testify before Congress in early May. Turns out a temporary release will not be necessary. But the prospect of Siegelman testifying under oath before Congress has got to be tightening some conservative jockey shorts this evening.

So what does all of this mean? Well, here are a few Schnauzer thoughts as we near the end of a most eventful day in the history of American justice:

* I haven't seen the 11th Circuit's four-page order, but my guess is that it will let trial judge Mark Fuller off easy. But that should not keep the public, and hopefully the press, from asking serious questions about Fuller's fitness for the bench. As we noted here in a January 5 post, Fuller's memorandum opinion on Siegelman's imprisonment clearly showed that the "emperor has no clothes." Fuller exposed himself as a glorified con man who, after raising suspicions about his conduct, was desperately trying to cover his posterior. If I, without the first day of law school, could see what he was doing, I can only wonder about the honest impressions of folks who have formal legal training. Today's news should be a major step toward an investigation of U.S. Judge Mark Fuller--an inquiry that, if it is serious, should lead to his removal from the bench. And let's hope investigators look closely for criminal activity. My guess is it won't be hard to find.

* Citizens must remember that Don Siegelman was only one of at least four political prisoners in the Age of Rove. The three others--attorney Paul Minor and former Mississippi judges Wes Teel and John Whitfield--remain in federal prison for crimes they did not commit. How do we know they didn't commit the crimes? Because we spent 25-plus posts proving it, and our "Mississippi Churning" series can be reviewed here. In terms of political prosecution, the Minor case is every bit as bad as the Siegelman case. Let's hope the nation and Congress turn their attention to the Minor defendants, who by law must be freed pending appeal.

* Siegelman's release is a testament to the power of alternative media. Without the work of blogger/journalists like Scott Horton of Harper's, Glynn Wilson of Locust Fork News, and Larisa Alexandrovna of at-Largely/Raw Story/Huffington Post/Hustler, Siegelman would have little hope of being released any time soon. Without the work of Pam Miles and her e-mail listees, Siegelman would have remained in prison for the foreseeable future. It's impossible to overstate the impact of CBS and its 60 Minutes story on the Siegelman case. But that "old media" story would not have happened without the work of folks working in the "new media."

* Siegelman's release is just one step in what will be an arduous journey toward restoring a badly broken justice system in this country--a system that is broken at both the federal and the state level. In fact, I would propose that problems in our state courts are far worse than those in the federal system--and that's a scary thought.

* If our justice system is going to be repaired, it will take committed, firm-minded Democrats and whatever honest, objective Republicans are out there. I believe such Republicans--people like Sen. Richard Lugar of Indiana--do exist. But the Republican Party in general has become like the Britney Spears of politics. The party needs to go into rehab, probably for eight to 12 years at least, to cleanse itself of some debilitating demons. That means Democrats must act like adults. It means Democrats must not, at any point, become arrogant. And it means that Democrats, using all legal and honorable means necessary, must win the 2008 presidential election. The Republican Party, in its current state, cannot be trusted with power. And our country cannot afford four or eight years of John McCain.

* With the economy in recession, the Middle East in a mess, and huge ice chunks breaking off of Antarctica, we've got lots of problems. But whoever becomes the Democratic nominee for president must move justice near the top of the heap for issues to be addressed. Our state and federal justice systems are infested with corrupt judges and prosecutors--and I feel certain they aren't all Republicans. Democrats need to act like the Orkin man, shining flashlights into dark corners and putting out roach motels to catch all the creepy-crawlies lurking about. If a few Democrats get caught in the boxes, good. Get 'em out. It's up to Democrats to act with maturity and objectivity. God knows Republicans aren't up to that task at the moment.

Deconstructing Eddie Curran, Part II

After running one episode of "Eddie Curran Raw," Montgomery Independent editor Bob Martin evidently decided it would be a good idea to put some kind of filter on the Mobile Press-Register's acclaimed attack dog.

That filter turns out to be Harper's legal-affairs contributor Scott Horton, the target in part two of Curran's two-part op-ed piece on the prosecution of former Alabama Governor Don Siegelman.

"This piece, Part II of Curran's writings, is so overly critical of Mr. Horton, we have asked Mr. Horton to respond, which he has done," Martin writes in an editor's note. "His response is in all capital letters to distinguish from Eddie Curran's words. Most quotes are in italic."

Reading this piece reminds me of the Joe Frazier-Muhammad Ali bouts of the 1970s. Curran is like Frazier, snorting and snarling and firing left hooks and wild haymakers at every turn. Horton is like Ali, deftly dancing around the ring, firing jabs, and expertly fending off his attacker. At times, you can almost hear Horton (as Ali), saying, "Is that all you've got?"

That would be a good question for Curran. Another would be, "What are you trying to accomplish here?"

My Frazier-Ali analogy only goes so far. Those bouts were all close. Curran vs. Horton proves to be a one-sided decision for Horton. You get the feeling Horton could have landed a knockout blow at any point. But he lets it go the distance, curious to see what Curran will try next--and content to win handily on the judges' cards.

The punch that Curran throws repeatedly might be called the "Mark Fuller Special." Swinging from the heels, Curran lets it fly time after time, attacking Horton's accounts of U.S. Judge Mark Fuller and his curious legal/business dealings.

But Curran never comes close to landing his big blow. Perhaps that's because he violates one of the first laws of boxing: Know your opponent.

Curran contends that Horton says Fuller received government contracts as a result of bribes or payoffs. But, as Horton correctly states, that is not the point of his pieces. Rather, Horton's work shows, time after time, that Fuller does not come close to meeting the "appearance of impartiality" requirement of federal law, mainly because a significant chunk of his income, way beyond what he earns as a judge, is derived from government contracts--and the U.S. government is one of the party's in the Siegelman case.

Horton particularly draws Curran's ire with this passage from a January 8, 2008, post: "It seems that Fuller's business runs almost entirely from shadowy contracts awarded by the U.S. Government, prominently including the Department of Justice--that's right, the highly politicized agency which was prosecuting the Siegelman case in his court. And many of the other contracts came from the Department of Defense."

Curran goes into a swinging frenzy at this. "Can Horton or Harper's identify a single contract, such as through production of a single piece of paper, showing that either Doss Aviation or Doss of Alabama has even on contract . . . with the Department of Justice?"

You can almost hear Horton shrugging his shoulders as if to say, "Dude, I've already done that--and you would know it if you had bothered to read my work closely."

First, Curran alleges that Horton's piece says Doss' contracts are "primarily" with the Justice Department. Actually, the story says the contracts are "prominently" with Justice. Big difference.

And Horton cites two documents--a defense counsel's motion for recusal and an article in the Enterprise Ledger--that support his passages about Doss' contracts with the Justice Department. The Enterprise newspaper article specifically states that FBI agents are among the professionals all over the world who wear products made by a Doss company.

Curran is so intent on defending Fuller's honor that you would think they were twin brothers. At one point, Curran quotes former Alabama Attorney General Bill Baxley as saying, "Judge Fuller is one of the fairest judges I have ever known." Gee, this is a big surprise, and Martin gets to the point with this editor's note: "I know many lawyers, and it is rare that you find one who will not speak with lavish praise in public about a judge before whom he regularly practices."

In fact, as Jill Simpson stated in her Congressional testimony, Alabama lawyers can get in deep doo-doo for questioning the integrity of a judge--no matter how corrupt said judge might be. (Rule 8.2, Alabama Rules of Professional Conduct.)

Perhaps Curran should have consulted David G. Bronner, head of the Retirement Systems of Alabama (RSA) and widely considered one of the sharpest minds in the state. In fact, Curran wouldn't have needed to consult Bronner. The RSA chief has made his feelings about Fuller very clear--in print--saying that Fuller had tried to help a buddy "rip off" RSA.

Curran also might have wanted to consult Missouri attorney Paul Benton Weeks, who after extensive investigation of Fuller's activities, filed an affidavit with the Justice Department outlining actions by Fuller that are certainly improper and probably criminal. Weeks is a graduate of the University of Missouri and the University of Virginia School of Law, and his affidavit can be read here.

Curran's piece makes no mention of Weeks' insights. Perhaps he should contact the Missouri attorney to get information from someone who really knows what Mark Fuller is all about.

If I were Weeks though, I wouldn't hold my breath waiting for Curran's call. Our intrepid reporter evidently won't countenance any less-than-flattering words about Judge Fuller. Curran really gets riled when he notes Horton's criticism of Fuller's memorandum opinion explaining his decision to deny Siegelman bail pending appeal.

Horton said Fuller's opinion was "farcical" and reflected the work of a "third-rate legal mind." Horton was absolutely right; in fact, he was being kind to Fuller. I don't have the first day of law school, and even I could show that Fuller's opinion did not come close to reaching the standard required to deny Siegelman bond.

Curran does catch Horton with one glancing blow. In an article in the March 2008 issue of Harper's, "Vote Machine: How Republicans Hacked the Justice Department," Horton writes one sentence that could have been phrased more clearly. He writes, in reference to Siegelman co-defendant Richard Scrushy: "And finally, according to his own uncontradicted testimony, Scrushy didn't even want the appointment." As Horton writes in his response to Curran, it was the testimony of Alabama Power CEO Elmer Harris, on behalf of Scrushy. In legal terms, that makes it Scrushy's testimony, but Horton acknowledges the sentence should have been written with more clarity.

While Curran expends considerable energy trying to prove a "gotcha" on Horton, he is not so careful about his own writings. Curran claims that Horton, in the March 2008 Harper's story, says "Scrushy supported Riley over Siegelman in the 1998 election." This is ridiculous, of course, because Siegelman ran against Fob James, not Riley, in 1998. Curran seems to think he has scored major points with this. But he misquotes Horton's story. The story merely says Scrushy backed Riley, which is true, when Riley ran in 2002. The sentence says nothing about 1998.

Perhaps Curran's most awkward punch comes near the end--in the 15th round, you might say--when he tries to land a haymaker about William Horton, a Birmingham attorney who used to work at HealthSouth and now is at the Birmingham firm of Haskell Slaughter. Our guy Eddie puts on his sleuth hat and discovers that Republican whistleblower Jill Simpson is a Haskell Slaughter client and--hold onto your hats--William Horton is Scott Horton's second cousin!

Sweet Jezebel, what a scoop! But what is it supposed to mean? That the two Hortons and Jill Simpson have designed some sort of conspiracy to concoct testimony and free Don Siegelman?

Curran seems to be convinced of it, even though both Hortons state they are not in close or frequent contact. In fact, Bill Horton says he only recently learned that Scott Horton wrote for Harper's.

In the end, my Frazier-Ali analogy probably is not the right one. This bout was more like the 1982 match between Randall "Tex" Cobb and heavyweight champion Larry Holmes. Many have called it the most one-sided title fight in heavyweight history. Sportscaster Howard Cosell was so repulsed by the sight of Cobb's face being used as a punching bag for 15 rounds that he retired from boxing coverage.

So what did Curran hope to accomplish? Beats me. Anyone who has ever taken a reporting course in a journalism or communications curriculum knows that one of the first things you learn is: Don't make yourself part of the story. And at all costs, do your darnedest to maintain your objectivity--or at least the appearance of being objective.

Eddie Curran must have skipped class the days those lessons were taught. And so, apparently, did his bosses at the Mobile Press-Register. How the editors of that paper could allow one of their reporters to go off on a such a wild, one-sided, nonsensical, unprofessional rant is beyond me.

Eddie Curran should be sitting back and letting his reporting of the Siegelman story speak for itself. Or better yet, he should be taking a hard look at the flip side of the prosecution--the mounting evidence that the prosecution was politically motivated and legally unjust. And he should not be working on a book about the Siegelman prosecution until it is over--and given that a transcript has not even been prepared for the appeal, it certainly is not over.

If anything is crystal clear in Eddie Curran's writings, it is this: He desperately wants the Siegelman conviction to stand. And he is bitter that Scott Horton and Jill Simpson have caused serious questions to be raised about the case--and now those questions have been raised before a huge national audience by 60 Minutes.

With every wild punch he throws at Scott Horton, you can almost hear Curran thinking, "Dammit, you are ruining the market for my book, and I'm not going to let you get away with it."
What Curran should be saying is: "Great Murrow's Ghost, this Horton fellow is raising some interesting questions about the Siegelman case. And this Simpson woman is going out on a shaky limb for some reason. Better check it out."

That's how real journalists behave. But Eddie Curran evidently is not interested in real journalism--at least not now.

Checking Out the Mark Fuller Shuffle

U.S. District Judge Mark Fuller finally has gotten around to "explaining" his reasons for refusing to release former Alabama Governor Don Siegelman pending an appeal.

Fuller's 30-page opinion can be read in its entirety. What exactly does it say? Well, I've read it, but I've not had a chance to fully digest it. But here are some early impressions:

* Thirty pages makes it sound like this is a serious document. But more than half of that is Fuller regurgitating his version of the facts in the case. Fewer than 14 pages are devoted to addressing the questions he was asked by the 11th Circuit Court of Appeals.

* Fuller states that in the 1998 gubernatorial election, Richard Scrushy supported Siegelman's Republican opponent, Fob James, and donated $350,000 to the James campaign. It has been reported in numerous places on the Web that Scrushy served on the Certificate of Need (CON) Board under James, just as he did under Siegelman. Fuller himself reports that Scrushy gave money to the James campaign, just as he gave money to a Siegelman campaign. Which raises this obvious question: Why was Fob James not investigated and prosecuted on corruption problems, as Siegelman was? Does Fuller ask or answer this question in his memorandum opinion? Not on your life.

* Fuller's opinion reminds me of Rob Riley's affidavit filed with the U.S. House Judiciary Committee, the one regarding whistleblower Jill Simpson. Both documents are filled with "hedge" language. "In this Court's view" seems to be a Fuller favorite, and it seems to indicate when he knows he's walking on shaky legal footing.

* Fuller is on his shakiest footing when he discusses Siegelman's argument that a bribery conviction must be predicated on an explicit quid pro quo. "In this Court's view, Siegelman's argument overstated or mischaracterized the holdings of the cases on which he relied," Fuller writes. This section is full of "hedge language," but Fuller seems to be saying that federal bribery law under 18 U.S. Code 666 does not require a quid pro quo. And the fact is this: Federal bribery law most definitely does require a quid pro quo, specifically in the 11th Circuit (which includes Alabama).

The most recent 11th Circuit case I could find was U.S. v. McCarter, which was handed down on March 9, 2007. McCarter makes it abundantly clear that a quid pro quo is required.

In his best "hedge language," Fuller gives the impression that he gave a muddled jury instruction on this issue--when, by law, there should have been nothing muddled about it. Fuller claims the jury was "sufficiently apprised" of the quid pro quo requirement. But he does not tell us what his jury instruction was. Hmmm, wonder why that is.

Of course, we've written about this trick before--regarding U.S. District Judge Henry Wingate, who oversaw the Paul Minor trial in Mississippi.

Taking Another Look at the Fuller Shuffle

We have shown in a series of posts that U.S. District Judge Mark Fuller presents an extremely weak argument in his memorandum opinion that is designed to show that former Alabama Governor Don Siegelman should remain imprisoned pending appeal.

Scott Horton, a Columbia University law professor who writes at Harper's.org, calls Fuller's opinion "farcical" and says it "reflects a third-rate legal mind."

One of the many weaknesses in Fuller's opinion is that he does not make it clear that 11th Circuit precedent, in fact law in pretty much all federal circuits, requires the showing of a quid pro quo in order to produce a conviction on bribery.

Fuller is guilty of poor legal research, poor legal reasoning, and poor legal writing--quite a trifecta--in his opinion. I don't have the first day of law school, and I could quickly find multiple cases showing that the 11th Circuit requires proof of a "something-for-something" arrangement--also known as a quid pro quo.

A federal judge should be able to find such information. And it isn't complicated stuff, so he should be able to make the law clear in a memorandum opinion. Fuller is unable to do that, either because he is lazy and disinterested or because he knows the Siegelman prosecution is grounded on shaky legal footing and he's trying to cover that fact up.

All Fuller had to do in his opinion is cite the exact language in the relevant law. But he evidently didn't want to do that because it doesn't support his desired result--which would be to see Don Siegelman behind bars for years.

So Fuller tries to pull the equivalent of a cute card trick by mixing up the language found in the case law. He borrows language from the evidence requirements for a bribery conviction and mixes it with language from the fundamental definition of the crime itself. The result is this: The judge finds that Siegelman has not shown that the law requires an "explicit quid pro quo."

The phrase "explicit quid pro quo" appears to be a Fuller concoction, one that I suspect is designed to confuse readers and muddy the legal waters. It's a phrase that I have not found anywhere in the actual law.

The truth of the matter is this: The law does require, in a specific way, a quid pro quo. But it does not require the government to show "direct evidence" of a verbal or written agreement.

Two cases, one of which we already have explored, illustrate the requirements for a bribery conviction.

As we have seen in U.S. v. McCarter, 219 Fed. Appx. 921 (2007), the law clearly requires a quid pro quo, "a specific intent to give or receive something of value in exchange for an official act."

But what kind of evidence must the government present to prove the quid pro quo? That is addressed in another 11th Circuit case, U.S. v. Massey, 89 F. 3d 1433 (1996):

"Direct evidence of a verbal or written agreement to support a bribery conviction is unnecessary. Proof of such an agreement may rest upon inferences drawn from relevant and competent circumstantial evidence. To hold otherwise, would allow defendants to escape liability with winks and nods, even when the evidence as a whole proves that there is a meeting of the minds to exchange official action for money."

That last sentence is key. The law does not allow defendants to get off by saying, "Hey, the government has presented no written agreement between us or no tape recording of a verbal agreement between us. Therefore, we're not guilty." It's not that easy for defendants.

But the government still has a strict burden. The "evidence as a whole" must prove that there was a "meeting of the minds" to exchange something of value for official action. That "meeting of the minds" is a quid pro quo. And it must be present.

It's important to keep this mind: At this point, we're not talking about overturning Siegelman's conviction--although the evidence strongly suggests to me that it should be overturned. We are talking about whether Siegelman has presented a substantial question of law or fact that would merit his release pending appeal.

The 11th Circuit Court of Appeals twice asked Fuller to explain his decision to immediately send Siegelman to prison, and that makes me think Siegelman's attorneys have done a pretty good job of showing substantial questions of law or fact exist. That's why Fuller essentially is being forced to defend his actions, something he seems to have a hard time doing.

If Siegelman's prosecution were based on solid legal footing, Fuller's memorandum should not have been necessary. And if the appellate courts asked for one just for the heck of it, Fuller should have easily and clearly been able to state why he took the action he did.

The fact Fuller was unable to do that indicates that Siegelman should be released pending appeal. And I suspect it means that the entire prosecution was built on revenge and raw, ugly politics--that it had little, if anything, to do with the law.

Why is Don Siegelman Still in Prison?

Amidst all of the buzz generated by the 60 Minutes story on the Don Siegelman prosecution, it has been easy to lose sight of an awfully important matter in the case.

In fact, I must admit I had forgotten about it until a light bulb went on over my head earlier today.

What did the light bulb cause me to ask myself? Why in the heck is Don Siegelman still in federal prison pending his appeal?

This question floated to the surface because I was reminded of U.S. Judge Mark Fuller and the memorandum opinion he issued on January 2, 2008. The opinion was designed to show why Siegelman should remain in prison pending appeal. But as we noted here at Legal Schnauzer, Fuller actually did a splendid job of making the case that Siegelman should not--in fact, must not--remain in prison pending appeal. We showed that Fuller inadvertently made Siegelman's case for him, undoubtedly the first favor the federal judge ever has done for the former governor.

With all of the hub-bub generated by the 60 Minutes story, I realized that I had forgotten just how pathetic Fuller's memorandum opinion actually was. And I figured that others perhaps had forgotten it, too.

How bad was Fuller's handiwork? Scott Horton, of Harper's, said his colleagues in the legal profession called it "farcical" and the work of a "third rate legal mind."

I don't disagree with Horton on much, but I would take issue with this last statement. It's an insult to those of us with third-rate legal minds. I would say Fuller's memo revealed, oh, an 87th-rated legal mind.

Why does Fuller's memo matter? The 11th Circuit Court of Appeals had asked Fuller, twice, to justify his decision to deny Siegelman bond pending appeal. After putting it off as long as he could, Fuller finally issued his opinion on January 2.

As we showed here, Fuller did not come close to meeting his burden for showing that Siegelman should be denied bail.

More than two months have passed since Fuller proved, in his own words, that Siegelman's imprisonment pending appeal is not legally justified. And yet, nothing has changed.

And so we ask: Why is Don Siegelman still in prison?

Bits and Pieces for $50, Alex

Will Scrushy Ruling Help Siegelman?
A federal appeals court has denied Richard Scrushy's release from prison on appeal bond, finding that Scrushy is a flight risk. Associated Press reporter Bob Johnson wonders if this ruling could help Scrushy's codefendant, Don Siegelman.

Johnson reports that even U.S. District Judge Mark Fuller has stated in court filings that Siegelman is not a flight risk. "I do think it should be encouraging for Siegelman that there has not been a question of him being a flight risk," says University of Alabama political scientist William Stewart. "He's obviously got to have hope."

What should give Siegelman more hope than anything else is Fuller's own language, found in his 30-page memorandum opinion stating that Siegelman, like Scrushy, should be denied appeal bond. We have shown in a series of posts that Fuller's opinion actually provides clear evidence of substantial questions of fact and law, requiring that Siegelman be released.

How bad is Fuller's memorandum. Harper's Scott Horton, a law professor at Columbia University, calls it "farcical, the sort of thing that any judge would be ashamed to allow to see the light of day."

An Alabama Newspaper Shows Some Spine!
Try not to faint, but a newspaper in one of Alabama's major cities actually has shown some guts, common sense, and at least a faint grasp of justice issues.

The Montgomery Advertiser, which has hardly distinguished itself in its (lack of) coverage of Bush Justice Department shenanigans in Alabama, calls for former Governor Don Siegelman to be released pending appeal.

The Advertiser bases its finding on the court's outrageous delays in the development of a trial transcript.

The newspaper doesn't go nearly far enough. It should expose the stunningly weak legal reasoning in Judge Mark Fuller's recent opinion claiming Siegelman should remain in prison. But we'll take anything we can get from Alabama's pitiful big-city newspapers. And the Advertiser deserves kudos for, finally, doing something right.

ExxonMobil: Calling a Fraud a Fraud
Jim Martin, former commissioner of the Alabama Department of Conservation and Natural Resources, minces no words when it comes to discussing the Alabama Supreme Court's recent ruling to overturn a $3.6 billion jury verdict against oil giant ExxonMobil.

Martin was commissioner when ExxonMobil was caught shortchanging the state on natural-gas royalties. "This was a case where Exxon cheated the State of Alabama and believed it could get away with intentional wrongdoing," Martin told Phillip Rawls of Associated Press.

Martin did not stop there. "When a powerful and politically influential corporate giant can get away with what Exxon did to the citizens of our state, it's truly a sad day for Alabama," he said. "This wasn't just a case where the terms of a contract were not lived up to--it was outright fraud committed at the highest levels of the corporate structure of Exxon. This was a total miscarriage of justice. I was shocked at what the Supreme Court did in this case."

What's Up With Party Switcher?
You have to wonder what is going on inside the cranium of Alabama State Senator Jimmy Holley, who evidently is planning to switch from the Democratic Party to the Republican Party.

Let's review some of the Republican Party's recent achievements:

* A GOP president has led us into a wretched war on false pretenses;

* A GOP-led Justice Department is ridden with scandal and has introduced Americans to the concept of political prisoners;

* A GOP administration is running up massive deficits and leading us almost certainly into a recession;

* Prices at the gas pump are skyrocketing under a GOP administration;

* Our GOP-controlled Alabama Supreme Court recently screwed the state out of a $3.6 billion jury verdict against oil giant ExxonMobil.

* Our GOP governor evidently violated state campaign-finance laws, routinely handed out state contracts to political cronies, gave millions of state dollars to contributors in Huntsville for a biotech project that duplicates what the state already has at UAB--and oh yes, evidence is strong that our GOP governor won the office with the help of tainted money from convicted felons and possible electronic vote manipulation.

So Senator Holley, tell us again why switching parties makes sense at this time. Are folks in your district around Elba so riddled with race-based fears that they are willing to overlook all of the foibles of the GOP on both the state and national stages? You must think so.

What Happened to Court Reporter?

Jimmy Dickens is making big news in Alabama these days. But most Alabamians probably cannot place the name.

I couldn't place it until I did a little research the other day. Turns out Jimmy Dickens probably is making more news in death than he ever did in life.

The ongoing imprisonment of former Alabama Governor Don Siegelman remains a major story in Alabama. And it has become a central focus in the unfolding national story of a Bush Justice Department that appears to have gone wildly off track.

Attention has focused in recent days on the trial transcript--or rather the lack thereof--in the Siegelman case. Even the Montgomery Advertiser pulled its head out of the sand long enough to opine that Siegelman should be released pending appeal--if for no other reason than that the trial transcript still is not completed.

Actually, there are numerous reasons that Siegelman should be released pending appeal, going way beyond the absent trial transcript. But that would require taking a close and critical look at Judge Mark Fuller's recent memorandum opinion, the one saying Siegelman should remain in prison. The mainstream Alabama press is not about to scrutinize Fuller's amateurish handiwork. So the mainstreamers have focused on the transcript.

And that is where Jimmy Dickens comes in.

Recent press reports have noted that one reason for the transcript delay was the death of the original court reporter in the Siegelman case. Most of the recent stories I've seen have not mentioned the court reporter's name.

His name was Jimmy Dickens. And why has he posthumously become such a news item? Well, the timeline in the Siegelman case has gone from ridiculous to absurd.

Siegelman was convicted on June 29, 2006. He was sentenced and immediately sent to federal prison on June 26, 2007. Here it is January 10, 2008, and we still have no trial transcript. And Siegelman's attorneys cannot prepare an appeal without a transcript.

Thanks to Scott Horton, of Harper's.org, we know that it is the trial judge's responsibility to ensure that a transcript is completed in a timely fashion. The trial judge, of course, was Mark Fuller. But Alabama's mainstream press evidently would rather blame a dead man than turn a white-hot spotlight on Judge Fuller.

And that's how Jimmy Dickens, God rest his soul, came to be a major news item.

All of which raises this question: Who was Jimmy Dickens and how did he die?

From doing some research on the Web, I could find out very little about Mr. Dickens, who was 59 at the time of his death.

Here is an obituary from the August 26, 2007, issue of the Montgomery Advertiser. Mr. Dickens died on August 24. No indication as to cause of death. Certainly sounds like he was a fine fellow--an Air Force veteran, a Methodist, a husband, a father to three sons, a grandfather to six. One of his sons evidently is a physician.

Here is a photo from 2005 when Mr. Dickens probably was 57 years old. He is second from left, immediately to Mark Fuller's left. He and the judge appear to be on good terms. Mr. Dickens looks hale and hearty at this point.

Thinking about Mr. Dickens brought a number of questions to mind:

* If Mr. Dickens became seriously ill at some point from June 2006 until August 2007, a span of 14 months, why didn't Fuller get another court reporter going on the transcript?

* If Mr. Dickens had become seriously ill during that time, you would think that would be a news story worth reporting. After all, he was court reporter for one of the biggest trials in Alabama history. But I've seen no evidence that it was reported.

* If Dickens died unexpectedly in August 2007, why didn't he already have the transcript completed? I don't pretend to be an expert on the work of court reporters, but couldn't a transcript be completed in 14 months? Does it usually take longer than that?

I posed some of these questions to a source of mine in the legal community, and I received some interesting answers. Turns out the production of a trial transcript can be more complex than the average layperson might imagine. It's a process filled with many variables. We will take a look at some of those variables in an upcoming post.

As for the Siegelman case, we know the new court reporter recently received an extension of time to complete the transcript. It will be at least another two months or so before the transcript is completed.

That means Jimmy Dickens will remain in the news for a while.

Responding to "Dixie" Readers

Thanks to the folks at Daily Dixie for linking to our original post about U.S. District Judge Mark Fuller's memorandum opinion, outlining his reasons for denying release pending appeal in the Don Siegelman case.

The post generated a fair number of comments from Dixie readers, and I wanted to respond to a point that was raised several times. In fact, I've seen this point raised a number of places, regarding a number of criminal trials--and it has grown into the kind of myth that needs to be debunked.

The argument goes something like this: If a jury convicted someone of an offense, then the conviction must be correct and the trial must have been fair under the law.

In fact, let's just examine the way a Daily Dixie reader phrased it:

"I'm still waiting for one of them (Siegelman supporters) to tell us about how (Karl) Rove manipulated the jury. Oh, hold on. They never mention the jury. It's better to make it sound like some judge convicted Don (Siegelman) on his own. It doesn't sound so good to admit that Don was convicted on multiple charges by an uncorrupted jury of his peers."

If you ever have been a party in a jury trial--and I, unfortunately, have been (in a civil matter)--you know how the judge controls things, even though a "jury of your peers" supposedly makes the final decision.

In fact, we have done a number of posts showing how U.S. District Judge Henry Wingate unlawfully manipulated the facts and the law in the Paul Minor case in Mississippi. Our most recent post regarding Wingate can be found here.

Wingate used two critical tools at the judge's disposal to ensure the desired result in the Minor case: He made unlawful rulings regarding expert witnesses, rulings that essentially prevented the defendants from putting on a defense. And he gave unlawful jury instructions on the two key charges--bribery and honest-services mail fraud (the same two key charges that were present in the Siegelman case).

As I noted in my most recent post on Wingate, he not only did not get the law right in his jury instructions, he did not even get the right kind of law right. He actually based the jury instruction in a federal bribery case on Mississippi state law.

Many of you might have heard a variation of this quote about the limitations of computers: You put junk in, you get junk out.

Juries have the same limitations: If the judge puts junk rulings and junk instructions in, you are likely to get junk for a jury verdict. And it's not just "junk" we are talking about. We are talking about an "unlawful" verdict, one that can send innocent people to prison.

That unquestionably happened in the Minor case. And the evidence strongly suggests it happened in the Siegelman case, too. It's hard to say for sure in the Siegelman matter because no one has access to a trial transcript and probably won't for at least another two months.

The Daily Dixie reader's notion of a pure, unadulterated, and "uncorrupted" jury is not always a reality. That does not mean the jurors themselves are corrupt--although I have little doubt that has happened in some cases. But it certainly means that jurors can be unwittingly corrupted by the judge.

Jurors are lay people assigned an extremely important task. But as regular folks, they have little or no knowledge of the law that is relevant to a particular case. In that sense, any lay person serving on a jury (me included) is kind of like a computer--we're just a dumb box that can only output good information if someone inputs good data.

That someone who is supposed to input good data is a judge. And in the Age of Rove, we are increasingly seeing evidence that certain Republican judges, in both federal and state courts, intentionally input bad data in hopes of getting a politically motivated and lawfully flawed result.

In fact, I have a follow up to my original post about Fuller's memorandum opinion. This post shows the extremely shaky legal footing upon which Siegelman and codefendant Richard Scrushy are being kept in prison pending their appeals.

The Schnauzer Greaseball Awards

In the wake of Don Siegelman's release from federal prison, a couple of entities have earned our first annual Legal Schnauzer Greaseball Awards. For short, we call our awards "The Greasies."

The first "Greasy" goes, not surprisingly, to The Birmingham News for its Sunday editorial on the Siegelman case. Get a load of this paragraph:

In our view, Siegelman's actions leading to this case didn't serve the taxpayers' interests at all, and his justifications of those actions reflect a terribly cynical and sad view of political service. His actions as part of this criminal case haven't always reflected well on him, either.

The News is so full of feces with this it's hard to know where to start. But let's take a crack at it:

* What actions didn't serve the taxpayer's well? We're talking about a criminal case here. Any policy or administrative differences the News' honchos might have had with Siegelman are irrelevant. The whole point of the editorial is to comment on the latest activity in the criminal case. And the key fact is this: Six of the seven counts for which Siegelman was convicted involved a transaction with former HealthSouth CEO Richard Scrushy. The seventh count was for obstruction of justice, which is a "piggyback" charge dependant on other charges. Therefore, the conviction was based totally on the Siegelman/Scrushy transaction. All of the "actions" the News seems to be referring to--the warehouse stuff, the landfill stuff, the motorcycle stuff--were rejected by the jury. So what was wrong with the Siegelman/Scrushy transaction? Under the law--and the News never seems to find the time to mention what the law on bribery and honest-services mail fraud actually says--not a thing. Scrushy clearly was qualified to serve on the Certificate of Need Board and had served on the board under three previous governors. We know he had made campaign contributions to at least one of those other governors, Republican Fob James. So again, how did Siegelman not serve taxpayers' well?

* What is cynical and sad about Siegelman's justifications for his actions? First of all, Siegelman isn't justifying anything. He's having to defend himself in criminal court. But consider these questions: Is it cynical and sad for Republican Governor Bob Riley to get a sweetheart contribution from Huntsville supporters, who then get massive amounts of state dollars for a biotech deal? Is it cynical and sad that numerous Riley cronies, including his children, have done quite well with no-bid state contracts? Is it cynical and sad that Riley evidently violated state campaign-finance laws, and none of the state's daily newspapers has looked into it? Is it cynical and sad that evidence strongly suggests that someone electronically manipulated the vote totals that put Bob Riley in office in the first place? Is it cynical and sad that when Montgomery insurance executive John Goff files a lawsuit against Riley for helping to ruin one of Goff's businesses, the governor apparently pushes to have Goff investigated by federal authorities? Is it cynical and sad that Riley has well established ties to felons Jack Abramoff and Michael Scanlon, and that GOP presidential candidate John McCain took steps to hide these ties, and the News has written nothing substantive about it?

* His actions as part of this criminal case haven't always reflected well on him, either? Oh, really? What on earth does this mean? Sounds like the Newsies are upset that Siegelman didn't roll over and play dead for their puppet judge, Mark Fuller. What inappropriate actions did Siegelman take during the course of the criminal case--other than try to defend himself? The News doesn't tell us, and I have no idea what they are talking about.

As for our second "Greasy," it goes to the Alabama Republican Party and its chief, Mike Hubbard. When Siegelman was released from federal prison pending appeal, there was no reason for Hubbard to say anything. The ruling didn't involve Hubbard or the Alabama Republican Party.

But since Hubbard was asked for comment, he could have shown some respect for the seriousness of the issues involved by saying something like: "Former Governor Siegelman is entitled to a full and fair appeal. We will continue to watch his case with interest." Or he could have said, "This matter does not involve the Alabama Republican Party, so I would prefer not to comment."

But no, Hubbard couldn't do that. Instead he had to issue one of the most tasteless statements I've seen from a public official in quite some time. Here is what Hubbard had to say:

"The former Governor's release pending appeal does not change the conviction by a jury of his peers. It would be premature to turn this development into anything other than a formality."

Both sentences put Hubbard's ignorance on full display. A jury's verdict is only as good as the judicial rulings and jury instructions it is given. If a judge puts garbage in, the jury is going to spew garbage out. Hubbard evidently has no clue about criminal or civil procedure. And the second sentence? Siegelman's release came because trial judge Mark Fuller failed miserably in his efforts to justify, in writing, Siegelman's imprisonment pending appeal. Fuller's memorandum opinion puts the judge's incompetence and bias on glaring display. And yet Hubbard considers that a mere formality.

Mike Hubbard has all the class of a truckstop hooker. Republicans should be embarrassed to be represented by an individual who spews such nonsense.

Appellate Court Butchers The Siegelman Ruling

A few quick Schnauzer thoughts after learning late yesterday about the U.S. 11th Circuit Court of Appeals' ruling to uphold most of the conviction against former Alabama Governor Don Siegelman and all of the conviction against his codefendant, former HealthSouth CEO Richard Scrushy:

* Isn't it interesting that the opinion was issued on a Friday afternoon? And word apparently didn't start spreading widely until about mid afternoon in Alabama, which is on central time. Any PR expert will tell you Friday is the day that you release bad news, items that you want to receive as little press attention as possible. Friday evening TV ratings are the worst of the week, and Saturday newspapers are the least read. A quick check of the 11th Circuit's Web site shows the court issued opinions throughout the week. Interesting that it chose to hold the Siegelman opinion for Friday.

* Isn't it interesting that the opinion was issued less than 24 hours after Siegelman appeared on the Rachel Maddow Show and essentially said the Congressional deal for Karl Rove's testimony is a crock of horse feces (which it is) and that Congress is going about its investigation in an ass backwards way (which it is)? Siegelman seemed to be saying that Congress, perhaps at the urging of the Obama Administration, doesn't appear to be making a serious effort to get at the truth. Kind of looks now like someone wasn't happy with him expressing those valid concerns.

* The opinion was issued "per curium," which Harper's Scott Horton says is an approach judges often take when they don't want to own up to their own writing. In other words, the 11th Circuit judges went into major CYA (cover your ass) mode with the Siegelman/Scrushy opinion. Horton also notes that the three-judge panel consisted of all Republicans, including two who have been highly active in partisan politics.

* I haven't had a chance to read the entire 68-page opinion yet, and I do intend to work my way through it. But I don't expect it to shine much light on the real issues involved in the Siegelman case. Politics, not law, ruled the day in the Siegelman affair, and Horton expertly points out that the appellate ruling focused on a narrow set of issues:

Nearly all the disclosures that undermined confidence in the fairness of the Siegelman trial occurred after the trial record was closed–and none of these disclosures were examined by the Court of Appeals. Even though the appeals court looked into jury misconduct, it did not have before it the much more powerful evidence of misconduct that a whistleblowing member of the prosecution team subsequently disclosed to the Justice Department—because the Bush Justice Department, in violation of its plain ethical duties, chose to keep all of that secret. So although an appeal has been taken and resolved, not one of the truly significant issues with the Siegelman case was ever briefed or argued. That remains for the future.

* On the political front, several sources say the Siegelman team has plans for addressing the myriad outside-the-courtroom issues in the case. Said one source:

It is vital that everyone understand that today’s ruling in Governor Siegelman’s case in no way has any effect or implication on the political circumstances that surround this case. Every significant development that has come to light--the 60 Minutes revelations about Nick Bailey’s coached testimony, Jill Simpson’s testimony, Karl Rove’s involvement, TIME magazine's investigative pieces on selective prosecution, the information from the employee in the U.S. Attorney's office regarding the prosecutions relationship with a juror and Leura Canary’s lies about her recusal--none of this was allowed to be part of the appeal because it all came to light after the trial. All of this information and material will be included in a Rule 33 motion for consideration of newly discovered evidence that will be filed in June.

* Aside from all of the political issues, the 11th Circuit almost certainly bungled this appeal. Ample evidence was available in the public square to show the Siegelman/Scrushy convictions had to be overturned by law. Perhaps the most compelling evidence was the pathetic memorandum opinion issued by trial judge Mark Fuller in an effort to show that Siegelman should remain imprisoned pending appeal. Fuller didn't come close to meeting his burden for showing that Siegelman should remain imprisoned. In the process, he showed that he could not justify the conviction, either. And this is the judge who oversaw the trial! Scott Horton said his colleagues in the legal profession considered Fuller's opinion "farcical" and the work of a "third-rate legal mind." Apparently, there are also some third-rate legal minds on the 11th Circuit Court of Appeals--and like Fuller, they are Republicans.

* Want another sign that the 11th Circuit screwed up the appeal? It's undisputed that Fuller presented improper jury instructions on bribery at trial. This is the same thing that happened in the Paul Minor case in Mississippi, although the judge in that case (another Republican appointee) was even more blatant about his chicanery than was Fuller. In both cases, defendants essentially were convicted for crimes that do not exist. And yet news reports indicate that the 11th Circuit found the jury instructions in the Siegelman case to be "sufficient." Sufficient? This is a criminal case, folks, where individuals' freedom is at stake. Criminal law is not supposed to be based on "sufficient." The big question should be: Did the defendants violate the law, as it actually reads, or not? Bribery law is not all that difficult, and Siegelman/Scrushy clearly did not violate it. But the 11th Circuit says it's OK for the jury to decide based on law that Fuller pulled out of his . . . well, that he made up.

* Can you take one final sign that the 11th Circuit screwed up? As we showed in a previous post, the statute of limitations clearly had run on the activity that prosecutors alleged was bribery. News reports indicate that the 11th Circuit found this argument was invalid because Siegelman and Scrushy failed to raise it at trial. But you can check Rule 29(c)(3) of the Federal Rules of Criminal Procedure and see that Siegelman/Scrushy raised the issue in a timely and appropriate fashion.

Our conclusion for now? We are probably being charitable when we say the 11th Circuit screwed up. That language implies honest mistakes, and this almost certainly was an intentional cheat job.

While it's sad to see that Don Siegelman and Richard Scrushy are going to have to continue to fight a bogus prosecution, yesterday's opinion does offer confirmation of the reasons I started this blog in the first place.

I started Legal Schnauzer in June 2007 because I had witnessed corruption in Alabama state courts firsthand. In our very first post, I stated that this corruption appears to go way beyond my little case.

Now we know just how far it goes. On our humble blog, we've shown that Alabama state courts are corrupt at the district, circuit, Court of Appeals, and Supreme Court levels. We've shown, in the Siegelman and Minor cases, that federal trial judges are corrupt. Now we learn that federal appellate courts also are corrupt.

And that doesn't touch the big enchilada. Famed California prosecutor Vincent Bugliosi is one of several writers who have made compelling cases that the U.S. Supreme Court acted corruptly in its 2000 Bush v. Gore ruling that handed the presidency to George W. Bush.

More recently, we've seen evidence that the U.S. Supremes acted corruptly in the Alabama case that led to the Lilly Ledbetter Fair Pay Act. We plan to post soon about the Supreme Court's shenanigans in that case.

Here's perhaps the most disturbing part of our current predicament regarding justice: Our supposedly fresh, progressive leaders don't seem to get it. U.S. Rep. Artur Davis (D-AL) says he hopes the Siegelman case will fade from view by 2010. (Doesn't look like that's going to happen, Congressman.)

President Barack Obama says he is more interested in looking forward rather than looking back at issues of injustice. And by appointing Greg Craig as White House counsel, Obama appears to have acquired a key advisor who is more interested in protecting Karl Rove than getting at justice. (What's going on, Mr. President?)

These are dark days for American justice. And they just got darker on Friday.

Siegelman Eleventh Circuit Ruling by Roger Shuler

On Siegelman, Exxon, Religion, and Such

Tell us again: Why is Don Siegelman still in prison?
We receive word today that the 11th Circuit Court of Appeals has issued deadlines for briefs in the appeal of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy.

The bottom line: Oral arguments are not likely to be heard until late 2008, at the earliest. And God only knows when a ruling might come.

Siegelman and Scrushy already have served nine months in federal prison, and it looks like they are facing a minimum of another 11 months. That's at least 20 months in prison for crimes that they almost certainly did not commit.

Heck of a justice system, isn't it?

Here's an even more galling point to ponder: The 11th Circuit required trial judge Mark Fuller to justify in writing his decision for denying Siegelman bond pending appeal. We showed here that Fuller did not even come close to meeting his burden under the law. The facts are simple: By the trial judge's own words, Don Siegelman must be freed pending appeal. But he is looking at probably another 11 months in prison while the 11th Circuit does nothing about Fuller's remarkably weak memorandum opinion.

Here's a question: Why did the 11th Circuit ask Fuller to write the opinion if they weren't going to act on it?

What message is the 11th Circuit sending? Better to wrongfully keep Siegelman in prison for at least 11 more months than to embarrass a federal judge.

Folsom finally gets his due
Sure was nice of Republican Gov. Bob Riley to have Lt. Gov. Jim Folsom at a press conference yesterday about a bill to raise taxes on companies that pump natural gas from offshore in Alabama.

It was particularly nice since Folsom, a Democrat, came up with the idea--one which Riley has blatantly stolen for several days.

"This is bipartisan," Folsom said. "We feel like we're here proposing the right thing and what's in the best interest of the people of Alabama."

Said Riley: "What we are not willing to have happen is that we give this natural gas away."

Of course, "Slick Riley" was perfectly willing to not say a peep when the Alabama Supreme Court let ExxonMobil get away with $3.6 billion worth of fraud. Evidently no mention of that at the press event.

Just what we need: Another Roy Moore
Alabama still is trying to live down the guffaws drawn from around the country by former Chief Justice Roy Moore and his Ten Commandments monument.

Now we have another state judge who doesn't seem to get the minor notion of separating church and state. This time it's Covington County Circuit Judge M. Ashley McKathan, who told some 100 people in his courtroom to gather in a prayer circle.

This is not the first time McKathan has tried to mix his religion with his role as a public official.

Here is the thing I've never understood about the Roy Moores and Ashley McKathans of the world: No one is forcing them to be a judge. They know up front that they can't mix their religion and their public position, but they do it anyway. They certainly are free to wear their religion on their sleeves, but not on the robes they wear as public officials. If religion was that important to them, why didn't they go to seminary instead of law school?

And the same thought comes to mind about the corrupt judges I've encountered at every turn. Hey, gang, no one is forcing you to be a judge. If you can't learn the law and apply it correctly, do something else.

Here's a thought about judges and lawyers: Why would someone who has no respect for the law go into the legal profession? The field is filled with some of the most lawless people you will ever meet--many of them wearing robes and going by the title "Your Honor."

Ironic world.