U.W. Clemon, who served as a U.S. District Judge in Birmingham for almost 30 years, made his request in a letter to Attorney General Eric Holder. Clemon now is in private practice with the firm White Arnold & Dowd.
Clemon presided over a federal case against Siegelman in Birmingham, which involved charges of Medicaid fraud. It ended with the judge throwing out a conspiracy charge due to lack of evidence, leading prosecutors to drop the charges.
But the Bush Justice Department was not finished with Siegelman. Prosecutors then brought bribery and honest-services fraud charges in Montgomery. With Bush-appointed judge Mark Fuller at the controls, that case resulted in a conviction.
In his letter, Clemon calls the Birmingham case against Siegelman "the most unfounded criminal case" he ever presided over.
Andrew Kreig, a veteran attorney and investigative reporter, has a detailed report at Huffington Post, with the latest on the Siegelman case:
One of the most experienced federal judges in recent Alabama history is denouncing the U.S. Justice Department prosecution of former Alabama Gov. Don Siegelman. Retired Chief U.S. District Judge U.W. Clemon of Birmingham calls for a probe of misconduct by federal prosecutors ─ including their alleged "judge-shopping," jury-pool "poisoning" and "unfounded" criminal charges in an effort to imprison Siegelman.
The full Clemon letter has not been released, but Kreig provides key details:
Clemon's letter last week to the Justice Department said that U.S. Attorney's office "undertook considerable judge-shopping" in its attempt to steer the Siegelman case away from him in what he called "a baseless and futile effort to have me disqualified." Clemon, who introduced his letter by saying that he was writing as "a private citizen," continued as follows:
"Two of the AUSAs [Assistant U.S. Attorneys] rather blatantly attempted to poison the jury pool. After the Defendants moved that any alleged [Federal Rules of Civil Procedure] 404(b) materials be filed under seal, and with full knowledge that the motion was under submission, the AUSAs on the very next business day filed the materials as a matter of public record. The predictable poisonous publicity ensued. Although both AUSAs were subsequently sanctioned, the success of their efforts necessitated my decision to sequester the jury."
"The testimony of the witnesses called by the Government at the James conspiracy hearing [one that is requested under the 1979 federal appeals court case U.S. v. James] conclusively established that there was absolutely no basis for a conspiracy charge. When I granted the Defendants' motion to dismiss the conspiracy count, the AUSA forthwith moved to dismiss the remaining case against Mr. Siegelman and Mr. Hamrick [Paul Hamrick was a former aide to Siegelman. In 2006, the jury acquitted Hamrick of all charges in his second trial with Siegelman]. The motion was granted, and the case was dismissed with prejudice against those Defendants."
In a footnote in his letter, Clemon cited testimony by the former Siegelman aide Bailey, a key government witness in both the first and second federal prosecutions against the former governor. In that 2004 court testimony, Bailey denied that he knew about "an unlawful conspiracy of any kind," a story that Bailey would change in his later testimony before Fuller.
"I have no personal knowledge of the facts and circumstances surrounding Mr. Siegelman's subsequent prosecution and conviction in the Middle District of Alabama," Clemon continued in his letter last week. "But given my experience with his unwarranted prosecution in the Northern District, and in the interest of ensuring that Justice Department cases are handled fairly and consistent with its commitment to justice, I strongly support a thorough investigation by your office of allegations of prosecutorial misconduct in Mr. Siegelman's prosecution in the Middle District."
In related matters, Kreig reveals that Siegelman codefendant Richard Scrushy, former CEO of HealthSouth Corp., has hired an investigative firm:
Siegelman's co-defendant Scrushy hired Investigative Group International, a politically well-connected private detective agency, to explore new grounds to win his freedom from prison. Scrushy, former CEO of HealthSouth, Inc., has said he was the innocent victim of a political "vendetta" against Siegelman. In 2007, Scrushy mounted a major but unsuccessful effort to show that Fuller's Doss Aviation holdings created the appearance of bias by the judge toward federal authorities who are the contractor's major customers. Doss Aviation services include training Air Force pilots and refueling Air Force planes, including the President's Air Force One.
On the subject of Doss Aviation, Alabama attorney and whistleblower Jill Simpson has provided key information:
Dana Jill Simpson distributed today on an Alabama email list for Siegelman and Scrushy supporters an overview from the Doss Aviation website of its global activities in 2007. Beginning in February of that year, Simpson volunteered to help Scrushy avoid what she regarded as wrongful imprisonment.
In April 2007, Fuller rejected the Simpson-assisted Scrushy arguments of judicial bias. Simpson, a longtime volunteer for Republicans in opposition research, then swore out an affidavit in May 2007 alleging to Fuller that prominent Alabama Republicans had sought as early as November 2002 to frame Siegelman. In September 2007, Simpson amplified her statement with 143 pages of sworn testimony before the U.S. House Judiciary Committee's staff. She swore, among other things, that she heard from a Republican colleague in early 2005 that Fuller "hated" Siegelman, and would be appointed as judge in his case to "hang" him. Those charges have been denied in affidavits or media interviews by Republicans. Simpson says she has no recollection of meeting Fuller, although he was a contemporary at the University of Alabama.
In her informal email today commenting on Doss Aviation's importance to others concerned about the case, Simpson wrote (with punctuations and capitalizations here formalized):
"This company was doing more than anyone could imagine....They, my friends, really do appear to be almost a wing of the Air Force....In fact, the $178 million, 10-year Doss In-Flight Screening Program was awarded right during the middle of the Siegelman case....It is time our government starts answering questions about how one company has been allowed to have so much power providing fuel to our military and training our Air Force."
No one can honestly, with a straight face, say there is no fraud here or this judge does not warrant being removed from the bench and investigated. No way in HELL should he be rendering a sentence to ANYONE much less someone for whom he carries a grudge. That's what recusal is for. Justice does not exist with this kind of bias.
And how can someone basically own a wing of the military AND sit as a judge on a Federal bench? That is not the America our ancestors defended and died for...no way. Judge Clemon did the right thing to bring his concerns to Eric Holder. It is time for other voices in our justice system to speak up on this. If the DOJ does not address this issue with a real investigation of ALL the players, they too will go down in history as conspirators in destroying any sense of justice in this Country. I applaud Judge Clemon for his action. I just hope the time has come that he has led the way, opened the path for many, many other justices to speak up. Now is the time.
In a way it's unfortunate that the citizens of Alabama won't be paying the damages suffered by Mr. Siegelman. They helped elect the people who put these Alabama folks into these positions.
Instead the US taxpayer may have to end up footing the bill. Personally I think that Alabama ought to have the foot the damages amount, which will surely be substantial, and have it deducted from the payments that Northern state taxpayers send to States like Alabama in Federal money every year.
Holder is a loyal career federal prosecutor. He is about the last person one would expect to shake things up at the DOJ. His entire career has benefited from the reality of federal judges and AUSA's working in tandem to deny defendants their supposed constitutional rights.
The most shocking reality of the Siegelman fiasco is its ordinariness. Other than the fact that there is a high-profile defendant, this is a rather routine affair. The feds do this every day in federal courthouses throughout the nation. It is unfortunately business as usual. What passes for "justice" in federal courts is beyond a disgrace. It is a national nightmare with no relief in sight. Meaningful relief is certain not to come from Mr. Holder.
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