Will Democrats Ever Rise Again in the Deep South?

G. Douglas Jones

As a progressive living in Alabama, I like to think that the Deep South might once again become fertile territory for the Democratic Party.

But the Obama administration's nomination of George Beck as U.S. attorney for the Middle District of Alabama is not likely to help matters any. And if national Democrats continue to listen to the likes of Birmingham lawyer G. Douglas Jones, a vocal supporter of Beck's nomination, Republicans probably will dominate the South well into the future.

We long have suspected that a federal lawsuit against individuals and entities connected to HealthSouth Corporation has had a corrupting influence on Alabama's justice system. Now it appears the boatload of cash that plaintiff attorneys made from that case is helping to influence Democratic appointments on a national level--and not in a good way, if you are a progressive.

As we reported last week, Jones helped reel in more than $50 million for plaintiff attorneys in the HealthSouth case. Access to significant cash, sources tell Legal Schnauzer, made Jones a "kingmaker" in the Beck nomination. Is Doug Jones' influence good for the Democratic Party? Does he share a progressive vision for Alabama--or does he primarily promote his own interests and those of our state's other moneyed elites?

Jones was about the only person who would comment about the Beck nomination for a recent four-part series by Andrew Kreig, executive director of the Justice Integrity Project (JIP). Jones' comments, if read closely, are hardly comforting. In fact, he seems to engage in the kind of dissembling that is likely to turn off any Alabamians who might consider joining the progressive cause. From Part III of the Andrew Kreig series:

My questions to Jones . . . addressed not simply his support for the Beck nomination to run the office in charge of the Siegelman/Scrushy prosecution, but lingering questions about his own role. Jones has previously stated that he agreed to waive the statute of limitations only to show cooperation and other good faith after prosecutors erroneously told him they were not planning to indict Siegelman after their first prosecution was gutted by a skeptical trial judge. . . . But the limitations waiver and transfer of prosecution efforts to Middle District Chief U.S. District Judge Mark Fuller . . . helped prosecutors obtain the time needed to indict Siegelman and Scrushy a second time in May 2005 with a secret indictment. Authorities unveiled the indictment the following fall, helping set the stage for a 2006 trial that thwarted with a conviction Siegelman’s attempted political comeback. . . .

My questions to Jones included ones about Beck’s unusually advanced age at 69 for a U.S. attorney appointment. Most important, however, were the questions of conflict of interest. . . . To recap, the question is how Beck, defense attorney for the key prosecution witness Nick Bailey in the scandal-ridden prosecution of Siegelman, could possibly supervise the same middle district U.S. attorney’s office that exhibited so many well-documented but yet unpunished abuses as those involving in the Siegelman/Scrushy convictions.

How did Jones respond? First, it should be noted that he apparently would not grant an interview, answering questions that Kreig submitted but not allowing for any followup. Second, it appears that Jones essentially issued a statement rather than answering the questions put to him. Here is the reply:

George is eminently qualified to be US Attorney. He is a veteran lawyer who is respected by judges and lawyers on both sides of the aisle. He will be fair and balanced, and not driven by any political agenda, which is especially important for that particular U.S. Attorney position. This is not a lifetime appointment. So I am not concerned at all about his age. I think that office needs a seasoned lawyer with a steady hand regardless of age, and he certainly fits that bill.

With regard to his representation about Nick [Bailey], it is not a question whether he might be conflicted. He will be conflicted from any involvement in the case. I think that the real question will be whether it causes the entire office, including the Assistant U.S, Attorneys who prosecuted the case, to also be recused. A strong argument can be made that this case is so controversial that the entire office should be recused, and either another U.S, attorney appointed to oversee the case or someone out of Main Justice. That's a decision to be made by the hierarchy at DOJ.

Finally, all I can say about any questions that have after the fact been raised regarding my representation of Gov. Siegelman while also working on a civil matter against Richard Scrushy is that Don was well aware of the civil case and it was never an issue with us and that is all that matters to me. Moreover, as you know I did not represent him at trial due to a trial conflict with another matter and it is the trial where the rubber meets the road with regard to such issues. Scrushy was ultimately dismissed from our case without any settlement or judgment against him.

Let's take a closer look at what Jones is saying:

* "George (Beck) is eminently qualified to be U.S. attorney"--This is the kind of gibberish that lawyers tend to say about other lawyers. But what is the truth of the matter? Consider Kreig's reporting about Beck's representation of Nick Bailey, the key government witness in the Siegelman case:

By the time of a Feb. 24, 2008, investigation of the case by CBS 60 Minutes, however, one of the nation’s most popular television programs would inform the world that Beck and Fuller let the government witness, Bailey, be coached and/or coerced by prosecutors up to 70 times, without providing legally required details to the defense to enable pretrial preparations. . . .

Beyond that, a series of sworn filings in 2009 further suggests that prosecutors abused their powers by pressuring Bailey to provide the testimony they wanted to frame Siegelman and Scrushy. According to Bailey’s Alabama friend and employer Stan Pate, the pressure included a threat of a 10-year prison sentence (compared to the 18-month term Bailey later received as a reward for his testimony) and the threatened smearing of Bailey with homosexual innuendo and targeting of his friends unless he cooperated with prosecutors.

George Beck was Nick Bailey's attorney, and evidence suggests that he allowed this happen. And Doug Jones thinks Beck is "eminently qualified" to now be U.S. attorney? Is Doug Jones serious?

* "All I can say about any questions that have after the fact been raised regarding my representation of Gov. Siegelman while also working on a civil matter against Richard Scrushy is that Don was well aware of the civil case and it was never an issue with us and that is all that matters to me."--That's not all that matters under the law. Regarding conflicts of interests, Rule 1.7 of the Alabama Rules of Professional Conduct states:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

What does "consultation" mean? The rules spell it out:

“Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.

In other words, the lawyer is required to communicate sufficient information to the client regarding a possible conflict. And the client then must give his consent. Jones does not say that he communicated anything to Siegelman about the conflict. Jones says Siegelman was "well aware of" the civil case, but he does not say that Siegelman was well aware of Jones' involvement in it--and any conflict it might pose. Jones does not say that Siegelman consented to anything, as required by ethics rules.

* "I did not represent him at trial due to a trial conflict with another matter and it is the trial where the rubber meets the road with regard to such issues"--That's not what Alabama ethics rules say--not even close. Let's return to the first sentence of Rule 1.7(b) of the Alabama Rules of Professional Conduct:

A lawyer shall not represent a client if . . .

The rules say that "a lawyer shall not represent a client" at any point if there is a conflict. The "rubber does not meet the road" at trial. It meets the road at the outset of the attorney-client relationship. Jones either is grossly ill informed on this subject, or he is flat-out lying.

* "Scrushy was ultimately dismissed from our case without any settlement or judgment against him."--Again, Jones is full of rubbish. Under the Rules of Professional Conduct, the outcome of the HealthSouth lawsuit regarding Scrushy is irrelevant. The two simple questions are these: (1) Did Jones inform Siegelman about a potential conflict? (2) Did Siegelman consent to the representation after being informed?

Based on Jones' own words, the answers to both questions appear to be no.

You can almost hear Jones' feet shuffling as he tries to avoid answering Kreig's questions. I know what that's like. I called Jones on the telephone recently and posed questions to him on several justice-related matters. He refused to answer any of them.

Is this the kind of person who should be making recommendations to the Obama White House? The answer is no. And Andrew Kreig has an excellent suggestion on how the Beck nomination should proceed:

The Justice Integrity Project today calls for the Senate Judiciary Committee to invite independent witnesses to testify at the confirmation hearing for George L. Beck, President Obama's nominee to become U.S. attorney for the middle district of Alabama. Only a full review of the conflicts surrounding this nationally important nomination can restore public trust.

The review should start with a look at Doug Jones' numerous conflicts.