The Cheating of Don Siegelman, Part IV

We have shown that the U.S. 11th Circuit Court of Appeals screwed up its ruling on the Don Siegelman case in three critical areas: the statute of limitations, the elements of bribery, and jury instructions.

But we are not finished with the 11th Circuit's butchery of the Siegelman matter. The appellate court also erred in the murky area of hearsay.

In my efforts to gain a layman's knowledge of the law, I've found that the rules of evidence regarding hearsay can be baffling. I suspect many lawyers don't fully understand it, so I'm certainly not going to claim to be an expert. But our review indicates that Siegelman and codefendant Richard Scrushy were convicted largely because of improperly allowed hearsay.

What is hearsay? It is "second hand" evidence and generally not admissible. Here is one definition:

The hearsay rule is a rule of evidence which prohibits admitting testimony or documents into evidence when the statements contained therein are offered to prove their truth and the maker of the statements is not able to testify about it in court. Hearsay is "second-hand" information. Because the person who supposedly knew the facts is not in court to give testimony, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine him or her. Therefore, there is a constitutional due process danger that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something.

There are a number of exceptions to the hearsay rule, and one of those played a key role in the Siegelman convictions. It is called the "coconspirator exception," and it applied to statements attributed to former HealthSouth lobbyist Eric Hanson.

The evidence came in testimony by former HealthSouth executive Mike Martin, who said that Hanson bragged at the Healthsouth annual retreat “that he was able to get us a spot on the CON Board with the help of the Integrated check."

Hanson was not a witness, so this normally would be clear hearsay. But the government argued that Martin's statement should be allowed under the coconspirator exception. U.S. District Judge Mark Fuller allowed the statement, and it proved to be crucial.

How important was it to the prosecution? Consider this statement from Siegelman's appellate brief:

This statement attributed to non-witness Hanson was crucial to the prosecution’s case--so crucial in fact that the prosecution relied on it in the short rebuttal portion of its closing argument, the last argument before the jury retired to deliberate. It was, in the prosecutor’s eyes, the knock-out punch.

Martin's statement, however, did not meet the three-pronged test for an exception to hearsay. The second prong in that test states:

(2) the conspiracy included the declarant and the
defendant against whom the statement is offered;

Did the conspiracy include the declarant, Mike Martin? Possibly. But did it include Don Siegelman? The answer appears to be no.

The statement attributed to Hanson is about efforts by HealthSouth personnel to obtain a check. But there was no evidence that Siegelman was involved in that effort, or any other effort involving Eric Hanson.

Under a liberal interpretation of the coconspirator exception, the exception might have been proper against codefendant Richard Scrushy, who was then HealthSouth's CEO. After all, Hanson was talking about an effort within HealthSouth to arrange funding. But there is no indication that any alleged conspiracy reached beyond HealthSouth to include Siegelman.

Here's a question that a reasonable layperson might ask: If Hanson's testimony was so important, why didn't the prosecution call him as a witness? Why did it rely on the secondhand testimony of Mike Martin?

Did the government perhaps know that Martin's words were not an accurate account of what Hanson said? Is it possible that prosecutors didn't bother calling Hanson because they knew they would get a favorable ruling on hearsay from Fuller?

Is it possible that Siegelman and Scrushy are headed to prison for possibly the rest of their lives because of testimony that should have been excluded?
(To be continued)

Previously . . .

* Here Is How An Appellate Court Cheated Don Siegelman

* The Cheating of Don Siegelman, Part I (statute of limitations)

* The Cheating of Don Siegelman, Part II (fundamentals of bribery)

* The Cheating of Don Siegelman, Part III (jury instructions)