Is That Racism Hanging In the Air at Federal Bingo Trial In Alabama?

Scott Beason

Republican legislators were caught on tape making crude racial remarks, including one reference to "aborigines," as the Alabama bingo trial headed into its fourth day of testimony.

Meanwhile, profound constitutional issues involving former Governor Bob Riley and high-profile defendant Milton McGregor, continue to hover over the trial.

The racially insensitive comments were picked up on a wire worn by State Sen. Scott Beason (R-Gardendale), the government's star witness. In one instance, Beason himself refers to certain black Alabamians as "aborigines."

As for constitutional issues, a federal judge's decision to free former Governor Bob Riley from testifying in the trial appears to be unlawful and probably should be overturned on constitutional grounds if it ever is appealed. In fact, the decision by U.S. Magistrate Judge Terry F. Moorer is dubious on a number of grounds. And that means Riley still could be forced to testify, assuming the actual law is followed--always a big "if" in Alabama federal courts.

The first three days of testimony in the bingo trial hint that the government's case is weak. Wiretaps and testimony involving Beason indicate the case against gambling magnate Milton McGregor is virtually nonexistent. In some instances, the record shows that Beason raised the issue of money in discussions with pro-gaming individuals, not the other way around. And a jury question about entrapment, sent to U.S. District Judge Myron Thompson, could be bad news for the prosecution.

Perhaps the most explosive moment of the trial, so far, came yesterday when tapes played in court revealed that Beason and other GOP legislators used crude racial remarks in several conversations. From The Birmingham News:

Those conversations included discussions about blacks getting bused to the polls — in “HUD-financed buses,” in the words of one state senator — which could hurt the prospects of GOP candidates.

At another point, Beason used the term “aborigines” to refer to patrons of the Greenetrack gaming facility in Greene County.

It's early in the trial, and one never knows what to expect from an Alabama jury; a source told us that at least two jurors were sleeping in the jury box after lunch during testimony on Monday. But at this point, a reasonable observer might ask, "If this is the best the government has to offer, did Country Crossing developer Ronnie Gilley make a huge mistake by pleading guilty?"

The big issue that hangs over the trial is this: To what extent was Riley's opposition to electronic bingo driven by his seemingly pathological desire to protect the market share of Mississippi Choctaw gaming interests? And to what extent did money funneled from the Choctaws, through GOP felon Jack Abramoff, wind up soiling the political environment in Alabama over the past eight to 10 years?

In other words, Riley's testimony is central to the big-picture issues that are driving this trial. And Moorer's decision to quash McGregor's efforts to compel Riley's testimony rests on shaky legal legs.

As we noted in a previous post, Moorer's ruling is not the victory for Riley that it might seem:

Moorer quashed a subpoena from gambling magnate Milton McGregor, seeking to have Riley and three other current or former state officials called as witnesses. Moorer's finding, however, was "without prejudice," meaning the issue can be raised again later in the trial. And Moorer indicates that McGregor might indeed have a strong case for seeking testimony from Riley and the other state officials at some point in the proceedings.

Still, Moorer probably is cutting Riley way more slack than he deserves under the law. Moorer cited United States v. Nixon, 418 U.S. 683, 698, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) in finding that McGregor did not have sufficiently specific grounds for compelling Riley's testimony. But Moorer conveniently ignored the finding in Nixon about a criminal defendant's rights under the Sixth Amendment of the U.S. Constitution. From the Nixon opinion:

The right to the production of all evidence at a criminal trial has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.

Those are powerful constitutional grounds that support McGregor's right to compel Riley's testimony.  Moorer seems to acknowledge this when he hints that "specific guidance from the Supreme Court" might be necessary on this issue.

Actually, Moorer might be barking up the wrong legal tree by citing the Nixon case. For one, the case involved subpoenas seeking the production of certain documents and tape recordings from the Watergate era. It had nothing to do with subpoenas to compel testimony. Second, the nation's highest court found in Nixon that the subpoenas should be granted and the evidence turned over. That makes Nixon a curious case to use as justification for denying a subpoena. It also indicates that the facts in Nixon are not at all analogous to those currently under consideration in Montgomery, Alabama.

A reasonable observer might ask this troubling question: Is Terry Moorer an objective, disinterested jurist in the bingo matter? Should he have anything to do with this case.

Until early 2007, Moorer served as an assistant U.S. attorney in the Middle District of Alabama, working under Leura Canary and Louis Franklin. Canary, who recently announced her retirement, is notorious for her role in the Don Siegelman prosecution and for being married to Business Council of Alabama President Bill Canary, a staunch ally of Bob Riley. Franklin also was a controversial figure in the Siegelman case and is serving as acting U.S. attorney, pending the confirmation of Obama nominee George Beck.

A source tells Legal Schnauzer that Moorer almost certainly will do the bidding of powerful GOP interests, such as U.S. Sen. Jeff Sessions. That means Moorer probably is inclined to keep Bob Riley off the stand at all costs.

"Terry is a good guy," our source says, "but he knows the score and he is not going to go against the Canary-Sessions political machine."

The bingo case always has been about power, money, greed, intimidation, and other ugly forces. Now, thanks to remarks picked up by government wires, race has taken center stage. This is Alabama, after all, so perhaps we should not be surprised.