Tuesday, April 15, 2008

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:





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:


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.


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.


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.



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.


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.

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