Mark Fuller: The Enron Judge

Missouri attorney Paul Benton Weeks has written an affidavit that reminds me of those double albums big rock artists used to release in the 1970s. Weeks' document is sort of an Exile on Main Street or Goodbye Yellow Brick Road of the legal world. It's hard to grasp everything that's there on a first impression.

The affidavit, alleging possible unethical and criminal conduct by U.S. District Judge Mark Fuller (Middle District of Alabama), came to light recently, thanks to the reporting of Harper's Scott Horton. Our post here at Legal Schnauzer outlined the key charges, including embezzlement, theft of government funds, perjury, conspiracy, and fraud upon the U.S. Senate.

These charges of corruption were aimed at the judge who oversaw a trial that ended with the conviction of former Alabama Governor Don Siegelman on corruption charges. That trial now is at the heart of a Congressional investigation into politically motivated prosecutions by the Bush Justice Department.

Our original post did not touch on all of the issues raised in Weeks' affidavit. And those issues are of profound importance to everyday Alabamians.

Consider, for example, Fuller's actions in a lawsuit involving the Retirement Systems of Alabama (RSA) and Texas-based energy giant Enron.

Weeks visited Alabama in February 2003 to look into Fuller's background. The judge had been assigned a civil case, Murray et al. v. Scott & Sevier, in which officials at Montgomery-based B.A.S.S. are alleged to have stolen more than $75 million in funds from the nonprofit organization. Weeks was a lawyer for the plaintiffs and wanted to know what kind of judge he and his clients were facing, particularly since the case had been transferred from Kansas to Alabama.

The trail quickly led to RSA, where Weeks learned details about Fuller's efforts to boost the state pension of Bruce DeVane, who had worked for Fuller as chief investigator in the district attorney's office of Coffee and Pike counties.

One RSA official told Weeks that Fuller had committed perjury when testifying under oath before the RSA appeal board. A second official said RSA had lost a lot of money in the Enron scandal and had filed a lawsuit to recover its losses, a case that was pending in federal court before Judge Fuller.

"This was shocking news," Weeks writes in his affidavit. "The first RSA official had told me, pointblank, that Fuller and DeVane had tried to defraud the RSA. Now, the second RSA official was telling me that the RSA had a huge case against Enron pending in front of the very federal judge who had recently lied to and attempted to defraud RSA."

Weeks later learned that RSA had asked Fuller to recuse himself and been turned down.

Scott Horton, of Harper's, reported on Fuller's actions and cited an article written by David G. Bronner, CEO of the RSA. Horton noted that Bronner drew a connection between the DeVane case and the fact that Fuller later refused to grant RSA the ability to sue Enron in Alabama state court. Bronner wrote:

"I do not like U.S. District Judge Fuller nor does he like me. The RSA had to go through the entire state court system to prevent Judge Fuller's buddy from ripping off the RSA. Shortly thereafter, Judge Fuller tried to sandbag the RSA by preventing our claim (by doing nothing) against the ultimate crook--Enron! Fortunately, the RSA prevailed on both issues."

Indeed, RSA came out OK. Five financial advisors and fund-raisers for Enron (Merrill Lynch, Citigroup, JPMorgan Chase, etc.) agreed to pay RSA $49 million to settle the lawsuit. The settlement allowed RSA to recoup the vast majority of the $57 million it lost when Enron stocks and bonds collapsed in 2001, leading to what was then the largest corporate bankruptcy in U.S. history.

The settlement came about primarily because the financial advisors were facing a trial in state court in Montgomery, Alabama. According to published reports, Mark Fuller had done his darnedest to keep the case in federal court, where Enron was likely to have fared better. Other judges evidently did not agree with Fuller, finding that Alabama state court was the proper venue.

The Enron debacle, of course, came on the watch of the late and disgraced CEO Ken Lay, famous for being called "Kenny Boy" by President George W. Bush.

Reading Weeks' affidavit, one comes away with the impression that Judge Fuller was little more than Ken Lay with a robe in the Enron lawsuit. In fact, maybe Fuller deserves the nickname "Marky Boy."

Thousands of Alabamians rely on RSA for their pensions. And yet Week's affidavit presents overwhelming evidence that Fuller first tried to defraud RSA and then wrongfully ruled against RSA in retaliation for the pension fund having the audacity to defend itself from an attempt at fraud.

Does Mark Fuller sound like the kind of person who should be in any position of authority? Does he sounds like the kind of person who should have been overseeing the trial of former Governor Don Siegelman?