It has been a week since oral arguments were heard in Atlanta on the appeal of former Alabama Governor Don Siegelman. But a major mystery about the proceedings remains:
Why did the three-judge panel spend most of its time asking questions about relatively minor issues--juror misconduct and an obstruction-of-justice charge involving the sale of a motorcycle? Why did the justices largely ignore the case's centerpiece--the alleged bribery scheme between Siegelman and former HealthSouth CEO Richard Scrushy?
Adam Nossiter, of The New York Times, was one of several journalists who seemed baffled by the judges' questioning. When one of Siegelman's lawyers tried to raise his main argument--that the government failed to show a quid pro quo agreement between Siegelman and Scrushy--Judge J.L. Edmondson cut him off. "I don't think that's going to be your best argument today," the judge said.
Edmondson's statement, of course, is goofy because the bribery argument, showing the trial judge Mark Fuller gave an unlawful jury instruction on the issue, is central to the case.
So what was Edmondson up to? Well, we have a theory here at Legal Schnauzer.
Experience has taught me that many judges and lawyers are like members of a dysfunctional fraternity--something out of Animal House, without the humor.
They will go to extraordinary lengths to protect a fellow member of the tribe and hide the seamy underbelly of their profession. I suspect that is what Edmondson was doing by steering the conversation away from the bribery issue.
With the juror-misconduct issue, the focus was on jurors. With the obstruction-of-justice issue, the focus was on an inanimate object--a motorcycle--and a charge that was essentially an add-on to the main case.
But the bribery issue put the focus right where it belongs, on corrupt U.S. District Judge Mark Fuller. Had Edmondson allowed the bribery argument to proceed, two truths would have become clear:
* Fuller intentionally treated a legal campaign contribution as an illegal bribe; and
* Fuller intentionally gave the jury unlawful instructions, which virtually guaranteed a conviction.
What does this mean for the appellate panel's ruling? That is anyone's guess. Evidence for granting a new trial is overwhelming, and some experts say the convictions could be tossed altogether.
But my guess is that, even in their written ruling, the appeals judges will go out of their way to protect Fuller. The oral argument, which lasted less than an hour, probably was for show anyway, I suspect. The judges have plenty of written information before them to make what should be an easy decision.
Even if the judges write an opinion that is highly favorable for Siegelman and Scrushy, look for them to steer attention away from Fuller. It remains unclear how hard-nosed an Obama administration will be about rampant corruption in the Bush Justice Department. But it's possible that Mark Fuller could receive some unwelcome scrutiny in 2009.
My guess is that the all-Republican panel in the Siegelman appeal will do its best to take a corrupt crony out of the cross hairs.