Memo to Holder: Siegelman Prosecution Was Riddled With Misconduct

Attorney General Eric Holder is taking firm steps to deal with prosecutorial misconduct during the George W. Bush era. And that's a good thing.

But the beneficiaries of Holder's reviews, so far, have all been Republicans. And that is not a good thing--especially when you consider that perhaps the most egregious example of prosecutorial misconduct in the Bush years came in the case against Don Siegelman, the former Democratic governor of Alabama.

How corrupt were the actions of prosecutors in the Siegelman case? We can point Mr. Holder and his staff in several directions:

* The Paul Weeks affidavit--Holder's reviews have focused largely on Alaska corruption cases involving former U.S. Senator Ted Stevens and state legislators Victor Kohring and Peter Kott. In each case, federal prosecutors failed to disclose evidence to the defense. And William M. Welch, chief of the U.S. Public Integrity Section, was involved in each case.

Alabama attorney and GOP whistleblower Jill Simpson says Welch also was involved in the Siegelman case. And as happened in Alaska, Welch apparently withheld key information from the defense. Simpson says Welch came to Alabama when defense attorneys in the Siegelman case moved for the recusal of U.S. District Judge Mark Fuller. Welch's role, Simpson says, was to defend Fuller--and he succeeded in keeping the judge on the case.

But Simpson says Welch should have been aware of an affidavit from Missouri attorney Paul Weeks, charging Fuller with misconduct, perhaps of a criminal nature. A copy of the affidavit was hand delivered to the Public Integrity Section, and Simpson says Welch had a duty to disclose the contents of the affidavit to the Siegelman defense team. Simpson says there is no indication that the affidavit ever was disclosed.

* The Nick Bailey notes--Former Siegelman aide Nick Bailey was the key prosecution witness, testifying essentially that Siegelman and former HealthSouth CEO Richard Scrushy had struck a deal where Scrushy would be appointed to a hospital-regulatory board in exchange for his contribution to an education-lottery campaign. But 60 Minutes reported that prosecutors interviewed Baily some 70 times in order to get his testimony straight--and even had him write down key portions of his statement. Bailey's notes should have been turned over to the defense, but they were not.

Scott Horton, of Harper's magazine, reported that Bailey even mentioned the notes during the trial:

In fact, Bailey brought the proceedings to a stop by referring openly to the written notes he prepared at the prosecutor’s behest. The defense demanded to see them, and in a chambers hearing, Judge Fuller directed the prosecutors to turn them over. The prosecutors denied their existence. Bailey stated that he was required to prepare the notes on paper supplied by the prosecutors, and they were placed in a binder that the prosecutors or an FBI agent working with them retained.

* The mysterious check exchange--Nick Bailey testified that he saw a check change hands at a meeting involving Siegelman and Scrushy. But there was a slight problem with Bailey's story: The check was cut days after the meeting. It could not have changed hands the way Bailey testified. Scott Horton sums up this episode succinctly:

Bailey testifies that he saw a check change hands at a meeting at which Scrushy’s appointment to the oversight board was decided. This is the evidence that landed Siegelman in prison. And it was false. And the prosecutors knew that it was false.

* The Lanny Young bombshells--Another key witness for the prosecution was former lobbyist and landfill operator Lanny Young. According to a report in Time magazine, Young provided some damaging information about Siegelman. But Young also told prosecutors that he had paid tens of thousands of dollars in apparently illegal campaign contributions to prominent Alabama Republicans Jeff Sessions and William Pryor. That information should have been turned over to the Siegelman defense team. It was not.

* Leura Canary's "recusal"--According to Justice Department whistleblower Tamarah T. Grimes, U.S. Attorney Leura Canary remained involved in the Siegelman case long after she had supposedly recused herself. Grimes supported her story with e-mails showing that Canary was involved in the case well after her "recusal."

* Hanky Panky Between Jurors and Prosecutors--Grimes also provided e-mails that revealed previously undisclosed contact between jurors and the prosecution.

As we reported here at Legal Schnauzer:

Grimes also provided e-mails that show previously undisclosed contacts between prosecutors and the Siegelman jury.

A key prosecution e-mail describes how jurors repeatedly contacted the government's legal team during the trial to express, among other things, one juror's romantic interest in a member of the prosecution team. "The jurors kept sending out messages" via U.S. marshals, the e-mail says, identifying a particular juror as "very interested" in a person who had sat at the prosecution table in court. The same juror was later described reaching out to members of the prosecution team for personal advice about her career and educational plans.

And that was not the only hanky panky between jurors and the prosecution:

Further undisclosed evidence of prosecution team members speaking with jurors following the verdict emerges in Grimes' written statement to the DoJ. In it, she says a member of the team prosecuting Siegelman had spoken with a juror suspected of improper conduct — apparently at the time the judge was due to question the juror about that conduct. Grimes quotes the lead prosecutor in the case as saying someone had "talked to her. She is just scared and afraid she is going to get in trouble."

The prosecutorial misconduct in the Siegelman case clearly dwarfs that in the Alaska cases. So why has Eric Holder, so far, refused to look in the direction of Alabama?