Don Siegelman and the Plague of Judicial Bias

The prosecution of former Alabama Governor Don Siegelman is perhaps the best known example of a criminal case that was infected with apparent judicial bias.

But two recent news reports, originating from West Virginia and Georgia, shine an unusually bright spotlight on the problem of compromised judges. And veteran journalist/attorney Andrew Kreig has used those reports to help produce a compelling overview piece, showing that judicial bias is a pervasive problem that is difficult to combat--even for parties of power and means.

Kreig shows that judicial bias should be of concern to all Americans. But he focuses heavily on Alabama and U.S. District Judge Mark Fuller, who oversaw the Siegelman case. Kreig cites six cases where Fuller's impartiality could reasonably be questioned, but the judge has shown a consistent determination to fight efforts to remove him from such cases. This, Kreig reports, runs contrary to statements Fuller made during his confirmation hearings in 2002:

The track record of Chief U.S. District Judge Mark E. Fuller of Montgomery, Alabama, shows that he continues to supervise cases compromised by his personal, financial or political interests despite his promise at his 2002 confirmation hearing to recuse himself from any conflicts.

Fuller is not alone in playing fast and loose with the rules governing judicial recusal. Those rules are designed to protect parties from judges who might be biased against them. But judicial behavior, Kreig reports, usually is overseen by other judges. And that means there is little most parties can do about a biased judge who is determined to stay on a case.

In theory, Kreig writes, the standards for recusal are straightforward, written with regular folks in mind:

The right to an impartial judge is worth understanding because so many of us are likely to be in court one day, or at least to care about a friend or family member's civil or criminal case. The federal legal standard requiring recusal centers on whether an ordinary informed person might think a judge's impartiality might be questioned.

In reality, judges can manipulate that standard to serve their own purposes. How easily can that happen? Consider last week's U.S. Supreme Court decision in Caperton v. Massey. In Caperton, a West Virginia executive spent $3 million to help elect a state supreme-court justice who wound up hearing a case involving the executive's company. The U.S. Supreme Court ruled that the justice should have recused himself, and that his failure to do so violated basic concepts of due process.

Also, consider the case of former Georgia senate leader Charles Walker. We learned recently that the federal judge who oversaw Walker's 2005 conviction on corruption charges admitted that he should not have taken part in the case. That could result in a new trial for Walker--or perhaps even dismissal of the case against him.

Are the Caperton and Walker cases signs that the public is becoming more aware of judicial shenanigans? Will citizens become concerned enough to take action? Let's hope so, because the justice system itself is not likely to do anything about it.

Kreig cites a 2006 story by veteran Connecticut reporter Dennie Williams. The article reports that a comprehensive study of public complaints against federal judges found that only six of some 4,300 complaints over a six-year period resulted in any action by higher authorities.

No wonder judges like Mark Fuller evidently think they can do pretty much as they please. Fuller so far has not had to answer for numerous charges of wrongdoing, and perhaps criminal behavior, raised by Missouri attorney Paul Benton Weeks. And Kreig notes that Fuller failed to respond to requests for his current information on Doss Aviation and other holdings.

Even former governors have a hard time penetrating the mask of secrecy that cloaks many judges:

The power and secrecy of the judiciary dwarfs even the capabilities of a Siegelman, a Rhodes Scholar elected as Alabama's attorney general in 1978. Siegelman says he knew nothing until after his conviction in 2006 about his judge's Doss Aviation holdings and the corruption allegations unearthed by the six months research of Missouri attorney Paul Weeks. Siegelman relied on the 2007 recusal motion by his co-defendant Scrushy, but failed to join it. Courts and the Justice Department, as noted above, have rejected the Scrushy motion as "untimely," with scant comment on the merits.

How can a regular person avoid becoming the victim of a biased judge?

So what's the lesson for any reader with an important case along with a fear that your judge might be compromised and your attorney too timid, too busy or too conflicted to speak up?

You could start your own in-depth investigation of the judge, making sure that your findings are on record with a formal complaint before any major judicial decision. Or you could encourage oversight bodies to do the job that they're supposed to be doing.

If not you could end up like many others before you: Too late, too bad and sadly out of luck.