The most nauseating moment in last Friday's resentencing of former Alabama Governor Don Siegelman came when U.S. District Judge Mark Fuller stated that he had no doubt a bribe had taken place in the case.
This is a judge who, according to an affidavit from Missouri attorney Paul Benton Weeks, once tried to defraud the Retirement Systems of Alabama (RSA) and committed perjury in the process. This is the same judge who, according to documents in his ongoing divorce case, had an affair with a female employee, committed acts of domestic violence, drove under the influence, and showed signs of having an addiction to prescription painkillers.
It takes chutzpah for Mark Fuller to sit in judgment of anyone. But to fully grasp Fuller's arrogance, it helps to read one full quotation from the Siegelman resentencing. Here it is, as reported in Sunday's Birmingham News:
During his case and appeal, Siegelman maintained there had been no promise of a reward if Scrushy arranged the donations. He pushed to get the U.S. Supreme Court to review the case, to no avail.
But Fuller said when he sentenced Siegelman that there was no doubt in his mind that Siegelman had taken a bribe.
"The facts of this case for years have been misrepresented. There is no doubt in this court's mind that what took place was a bribe," Fuller said.
I will take that as a cheap shot toward the non-traditional press, which has led the way in raising questions about the Siegelman prosecution. The mainstream media has been mostly asleep at the switch, but concerns about the case have come from numerous quarters. More than 100 former state attorneys general signed a petition asking the U.S. Supreme Court to overturn convictions in the Siegelman case, stating that the case represented a misapplication of bribery law in the context of a campaign contribution.
Fuller might not have doubt about the presence of a bribe in the Siegelman case, but scores of law-enforcement professionals obviously do not share that view. It's likely that most of those who signed the petition have far more experience in the law than does Fuller.
Since Fuller raised the issue of certainty regarding some aspects of the Siegelman case, let's examine a few that he failed to mention--and there truly is no doubt about these:
* The prosecution was late in bringing its case, almost a full year after the five-year statute of limitations had expired. Records show that the alleged acts of bribery took place in summer 1999, and the original indictment came in May 2005. That's more than five years, but Fuller let it go;
* The defense requested a bill of particulars, pursuant to Rule 7 of the Federal Rules of Criminal Procedure, asking for details about the time frame when the alleged crimes took place. According to Federal Practice and Procedure: Criminal (C Wright, 2d edition, 1982), a request for a bill of particulars is to be liberally construed. But Fuller denied the defense information that would have shown the prosecution was barred by the statute of limitations.
* Fuller's jury instructions did not include the "explicit agreement" requirement spelled out in the controlling case law, McCormick v. United States, 500 U.S. 257 (1991). And they did not match the instructions given by U.S. Judge Myron Thompson in the trial and retrial of the Alabama bingo case. Thompson's instructions did match the language in McCormick, they resulted in zero convictions, and Thompson has proposed that they be used in all cases alleging bribery in the campaign-contribution context.
* Various individuals connected to the Siegelman case have filed affidavits stating the following:
(1) Chief government witness Nick Bailey was improperly coached;
(2) Bailey testified under pressure that he would be outed as a homosexual if he did not comply with prosecutors' demands;
(3) Prosecutors failed to turn over exculpatory evidence to the defense, as required by law;
(4) The jury was compromised by improper communications with members of the prosecution team;
(5) Certain jurors engaged in improper e-mail communications with each other;
(6) Fuller was compromised by his animosity toward Siegelman, dating to an investigation of the office where Fuller had served as a state district attorney.
Speaking of the tainted jurors, who could forget Katie Langer, the juror known as "Flipper" for her ability to entertain colleagues by doing back flips during deliberations? Langer was a gymnastics instructor when she served on the Siegelman jury. But once the case was over, and her guilty vote had been secured, she asked for a meeting with prosecutors, according to a report in the Montgomery Advertiser. She wound up going to Jones School of Law and reportedly passed the bar exam on the first try. She now works as a lawyer in the Montgomery County District Attorney's Office. Ms. Langer's professional fortunes seem to have taken a major turn for the better since she served on the Siegelman jury. The public should be asking, "How in the heck did that happen?"
Thinking citizens should not be swayed by Fuller's blind assertion from the bench that the Siegelman case involved a clear case of bribery. The truth? The Alabama bingo case, involved hours of wiretaps and far more compelling evidence than was present in the Siegelman case. But the judge gave proper jury instructions, based on controlling law, and the prosecutions yielded zero convictions.
The law on bribery involving campaign contributions, as set out in McCormick, presents a tough standard for prosecutors. That's because courts have found that a loose standard, such as the one present in Fuller's jury instructions, puts impermissible limits on First Amendment protections. One could make a strong argument that the convictions in Siegelman were not only unlawful, they were unconstitutional.
Overwhelming doubt exists about the presence of bribery in the Siegelman case. But even if the most gross sort of bribery had been present, the prosecution was barred by the statute of limitations.
The truth? Mark Fuller is a hopelessly corrupt judge, who unlawfully let an untimely prosecution move forward. And a compromised jury produced a conviction that did not square with the facts or the relevant law.
Note: I appeared last Friday on the California-based Karel Show to discuss the Siegelman resentencing. Peter B. Collins was serving as guest host, and you can hear a podcast of our conversation at the link below:
Karel Show: Hour 2, August 3, 2012
(Photo by Phil Fleming)