Improper Actions Of Prosecutor And District Judge Are Focus Of New Appeal In Don Siegelman Case

Leura Canary

A prosecutor's failure to abide by her recusal violated Don Siegelman's civil rights and should lead to a new trial for the former Alabama governor. In the alternative, a new court filing states, Siegelman's prison sentence should be reduced because it is based in part on charges for which Siegelman was acquitted.

In a brief filed August 26 with the U.S. Eleventh Circuit Court of Appeals, Siegelman's lawyers argue that Bush-era U.S. Attorney Leura Canary continued to participate in the case after she had recused. Siegelman's legal team, which now includes former Obama White House counsel Greg Craig, claims this amounts to a violation of Siegelman's constitutional rights and requires a new trial--or at the very least, an evidentiary hearing on Canary's actions.

The brief also argues that U.S. District Judge Mark Fuller unlawfully enhanced Siegelman's sentence by relying on conduct for which a jury found the former governor not guilty. (See full brief at the end of this post.)

In the new appeal, Siegelman does not challenge the jury verdict, although his lawyers make clear he disagrees with it. Rather, he seeks review of issues that go to the heart of the case, focusing on improper actions of the chief prosecutor and the judge. From the brief:

U.S. Attorney Leura Canary's failure to honor her disqualification violated Siegelman's right to a disinterested prosecutor. While Siegelman was being criminally investigated by the U.S. Attorney's Office, Canary's husband was a hired consultant for Siegelman's political opponent; Canary had a direct financial interest in the success of her husband's client and in Siegelman's defeat. . . .

Despite this conflict of interest, evidence shows that Canary's involvement in the case lasted long after her May 2002 disqualification. She communicated with members of the prosecution team, made staffing decisions, and celebrated their success. According to evidence from whistleblower Tamarah Grimes, Canary even wrote press releases related to the case. This level of involvement from a prosecutor with a personal financial stake in seeing Siegelman defeated and convicted was constitutionally unacceptable. 

What are the legal particulars? They can be found in a U.S. Supreme Court case styled Berger v. United States, 295 U.S. 78 (1935).  The crux of the matter is this: Federal prosecutors have a duty to serve the public interest, not their own personal or financial interests. From Berger:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

How important is this principle? The nation's highest court held in Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) that the failure to ensure a disinterested prosecutor requires automatic reversal of a conviction. From the Siegelman brief:

The right to a disinterested prosecutor is so important—such a “fundamental premise of our society”—that failure to honor the right requires automatic reversal, without requiring the defendant to show that the error caused prejudice. . . .

In this case, Canary was disqualified from participation in the Siegelman case in May 2002, but she continued to communicate with and influence the prosecution team long after that. Given her direct, personal financial interest in prosecuting Siegelman, her continued involvement in the case violated Siegelman’s right to a disinterested prosecutor. At a minimum, Siegelman has established sufficient reason to believe that targeted discovery—which has never been conducted—would develop significant new facts substantiating his claim.

As for trial-court judge Mark Fuller, it's hardly breaking news that he butchered the Siegelman case. His unlawful and improper actions have been well documented here and at a number of other news sites, including Andrew Kreig's Justice-Integrity Project.

Kreig, by the way, devotes considerable space to the Siegelman case in his new book, Presidential Puppetry: Obama, Romney, And Their Masters, which is about to be released in hardcover. Kreig discussed the book earlier this week on the Garland Robinette Show at WWL radio in New Orleans, and a podcast can be heard here.

Siegelman's latest Eleventh Circuit filing shines new light on Fuller's corrupt handling of the sentencing process:

In calculating Siegelman’s sentence under the Guidelines, Judge Fuller dramatically increased his offense level by relying on conduct unrelated to the offenses for which Siegelman was convicted. Without explanation, Judge Fuller lumped together all the charges against Siegelman—the Scrushy Charges, the Motorcycle Charges, and the RICO Charges—treating them as a single, undifferentiated block. The consequence of this grouping was to dramatically increase Siegelman’s offense level by imposing: (1) a two-level increase for obstruction of justice; (2) an eighteen-level increase based on a $3,740,525 “total benefit” calculation; and (3) a four-level upward departure for systematic and pervasive Government corruption. As a result, a Guidelines range of 51 to 63 months’ imprisonment was suddenly transformed into a range of 151-188 months’ imprisonment.

Translation: Fuller unlawfully increased Siegelman's sentence by a factor of roughly three. How unjust is that? The brief makes it clear:

Grouping all of the conduct together was thus the most significant sentencing decision that Judge Fuller made. Yet he failed to explain or justify the decision in any way. Nor was a justification possible: The conduct underlying the Scrushy Charges, the Motorcycle Charges, and the RICO Charges involved disparate acts and aims, took place at different times over a six-year period, and involved different participants. Much of the conduct that Judge Fuller held Siegelman accountable for was also unknown and unforeseeable to him. Therefore, Judge Fuller erred in calculating Siegelman’s Guideline range by treating everything the government sought to prove at trial as a single, undifferentiated unit.

The relevant law on this issue is found in a case styled United States v. Valarezo-Orobio, 635 F.3d 1261 (11th Cir. 2011). From the brief:

Under the Sentencing Guidelines, a defendant is punished not merely based on the counts of conviction, but on the “relevant conduct” underlying those counts. . . .  Conduct qualifies as “relevant”—and hence punishable—if it is sufficiently related to the offense of conviction; where joint activity is alleged, the conduct must also be “foreseeable” to the defendant.

Siegelman's legal team makes a powerful argument that Fuller simply ignored the principles of federal sentencing:

To determine whether conduct should be grouped together, “a court must look to the similarity, regularity, and temporal proximity between the offense of conviction and the” conduct sought to be grouped. United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir. 1994). . . . But this Court has admonished sentencing courts not to paint with too broad a brush: "[W]hen illegal conduct does exist in discrete, identifiable units apart from the offense of conviction, the Guidelines anticipate a separate charge for such conduct. . . . " United States v. Blanc, 146 F.3d 847, 853 (11th Cir. 1998) (grouping of frauds together was unwarranted “because the conduct is subject to meaningful subdivision into wholly discrete and identifiable units”).

The trial record is filled with evidence that Fuller could not lawfully take a "kitchen sink" approach to sentencing:

Here, it is clear that the Scrushy Charges can meaningfully be divided from the Motorcycle Charges and the RICO Charges, such that a “separate charge” was proper for each.10 Indeed, they were indicted separately. See Amedeo, 370 F.3d 1305 at 1315-16 (separate indictment shows that the conduct was “sufficiently distinct from the offense of conviction that it warranted a separate charge”). And the fact that the jury could, without any logical inconsistency, acquit Siegelman of the RICO Charges but convict him of the other charges further confirms that they are easily separable.

Siegelman's latest appellate brief provides another ugly chapter in perhaps the most notorious political prosecution in American history. It paints the picture of a prosecutor unlawfully pulling strings from off stage, and a judge acting on his own whims rather than established legal guidelines.

Appellate brief by former Alabama Gov. Don Siegelman challenging prosecution recusal, Aug. 26, 2013 by Andrew Kreig