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.