Monday, December 22, 2014

Courts continue to deny discovery on Leura Canary's 'recusal', which points to a cover-up in Siegelman case

Don Siegelman
The primary thrust of last week's Don Siegelman story, on the surface, was whether the former Alabama governor would be released from federal prison, pending an appeal before the U.S. Eleventh Circuit in January. New judge Clay Land, on the case in the wake of the Mark Fuller wife-beating scandal, denied Siegelman's request for release--and that was at the heart of almost all news coverage.

Beneath the surface, and somewhat buried in Land's 31-page opinion, was an issue that is much darker and potentially explosive. In fact, it points to a cover-up of criminal behavior that, if fully exposed, could rock our democracy. (See opinion at the end of this post.)

We're talking about discovery, specifically an inquiry into the supposed recusal of Leura Canary, the U.S. attorney over the Middle District of Alabama, where the Siegelman case was held. On page 3 of his order, Land states that discovery on the Canary recusal is one of three issues Siegelman raises on appeal--then the judge waits until the final four pages to address it, stating that "the Court leaves the most difficult issue for last."

Why is it the most difficult issue? Because Leura Canary clearly had a financial interest in the outcome of the Siegelman case; her husband, Bill Canary, had served as a paid consultant for Siegelman's political opponents. That violates Siegelman's fundamental due-process right, under the Fourteenth Amendment, to an impartial prosecutor, which Land addressed as follows:

It is indisputable that a defendant in a criminal prosecution is entitled to an impartial, disinterested prosecutor who does not have a personal financial interest in the prosecution. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 803-04, 809-10 (1987). The reason is fundamental to our system of justice:

"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." 
Berger v. United States, 295 U.S. 78, 88 (1935); accord 18 U.S.C. § 208(a) (prohibiting federal prosecutors from representing the Government in any matter in which they or their family members have a financial interest).

Siegelman presented evidence that Leura Canary had a financial interest in his case, and that has been prohibited by U.S. Supreme Court precedent for roughly 80 years.

Thanks to whistleblower Tamarah Grimes, Siegelman presented evidence that Canary did not abide by her announced recusal. Part of Siegelman's case before Land was a request to conduct formal discovery on the issue of Canary and her failure to fully recuse. By my unofficial count, Land became the sixth judge to deny such discovery. (That total might be seven if you count Bill Pryor's possible role as a fixer for certain conservative interests.)

And there is little doubt that Siegelman is entitled to discovery, under the law. As his lawyers wrote in a 2013 brief:

Even if these manifestations of Canary’s continuing involvement were not, by themselves, sufficient to warrant reversal, the district court erred by refusing to order further discovery. When discovery is sought in support of a motion for a new trial, discovery should be ordered “where specific allegations show reason to believe that the [defendant] may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Arthur v. Allen, 459 F.3d 1310, 1310-11 (11th Cir. 2006) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)). 
A district court’s failure to order discovery is an abuse of discretion if it is “too soon to declare out of hand that the new evidence” might support the defendant’s new-trial claim. United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990); see id. at 913 (“The District Court abused its discretion in denying [the defendant’s] motion for discovery into [the government’s] alleged misconduct and in denying the motion for a new trial without first conducting an evidentiary hearing.”).

Both U.S. Supreme Court and Eleventh Circuit precedent indicate Siegelman is entitled to discovery regarding Canary and her recusal. He is entitled to evidence that might show that his due-process right to an impartial prosecutor was trampled?

Clay Land
So why have Land and other judges on the case denied discovery by engaging in a splitting-hairs debate about whether Canary's failure to recuse represents a "harmless error" or a "structural error," which would require reversal of convictions--or at least a new trial? Why has at least one judge resorted to flagrant subterfuge in denying discovery? (More on that in an upcoming post.)

The answer, in our view, is that discovery regarding Leura Canary would reveal that the Siegelman case was, in fact, a political prosecution. And it would reveal who was pulling Leura Canary's strings, to help ensure that the case ended with a conviction.

Who might those persons have been? We don't know, at the moment, but they probably go to very high levels of the federal government, at the time. And that probably is why federal judges, including Clay Land, are so invested in a cover-up.

We will say this for Judge Land. His opinion hints that he does have a conscience, and he is troubled by the way the Siegelman case has been handled. Consider this from the opinion, on the subject of discovery:

Defendant has been prevented from making the record more robust. Thus, he faces an unenviable conundrum. He is told: “You have not produced enough evidence to support your claim.” And when he responds, “but all of the evidence is in your control and not available to me, so let me have a chance to see it ,” he is told, “too bad, you don’t get to see it because you have not produced enough evidence to support your claim.” It sounds like an unsolvable riddle: “To win, A must prove “X.” B is in control of the evidence relevant to “X” and will only give A a peek at that evidence if A first proves “X.” How does A win? Impossible--unless C, who has authority to order B to allow A to see evidence relevant to “X,” intervenes.

Land then comes real close to saying that he believes the trial and appellate courts have gotten it wrong on the issue of discovery:

The Court finds that a substantial question exists as to whether the district court erred by denying Defendant the opportunity to engage in discovery to support his prosecutorial misconduct claim.

That wasn't enough for Land to order Siegelman's release. But it should tell the public that something deeply troubling is going on--and at least one judge pretty much admits it, although he apparently lacks the courage to fix it.


Matt Osborne said...

IMO it all goes back to butthurt over Guy Hunt.

legalschnauzer said...

You might be right, Matt. Weren't some of the same prosecutors, like Feaga, involved in Hunt case? My memory is that the evidence was pretty cut and dried against Hunt, that he benefited personally from campaign funds etc.

Anonymous said...

One of these days the internet is going to have to contact enough of the American majority and demand the conflicted interests are not allowed anymore.

What Judge does not work for the system that has no doubt promised offshore retirements. Bankers get dead when they are not necessary and certainly that fact isn't unnoticeable to those that work for this "High Cabal" as Winston Churchill so eloquently already said.

Unknown said...

First, I am an ardent supporter of Gov. Don Siegelman as well as your paper. Now, for my conclusions:

Judge Land was not asked to nor did he rule on Don's request for discovery. That, as the Order points out, is an issue before the 11th Circuit raised by Don in his appeal.

Given that fact, Judge Land, sitting as a District Judge, would not have the legal authority to rule on the discovery request. The 11th Circuit, not Judge Land, will decide that issue, although I think a good result would be more likely under Land.

Anonymous said...

The Court System Not Corrupt:

No case to consider before Land or any of the "judges" involved.

Honor due process, no court in the dishonor that has been.

Anonymous said...

Revisionist U.S. Constitution is used as a blanket to cover-up the real racket running the USA.

Smallpox in the blankets of the horses of the North American Indians, cover-up.

Deadly game Democracy in America and the world says that we export this grave game, getting more deadly daily.

Journal the living Christ out of the masses of those that forgot how to get down on their knees and really pray.

Where is the Jesus said to be worshiped in the "South".

Anonymous said...

Any and or all righteous judges in the USA understand the suicide option on the gavel tyrants is always lurking under the robes as the memory to bank on, over or do exactly what the "High Cabal" says.

Americans have learned the truth about their "country" and the ugly is really and truly far more than ugly, look at how Don Siegelman looks from prison as the skeleton to understand life is over for him and his family except for wasting further and further and then gone.

Tragic country to see how the truth has been in an oppression and occupation as long as the High Cabal controls.

Anonymous said...

There is a lawyer, an attorney, who was hired to be a prosecutor for the State. He got to where he could walk into the court, not have any evidence whatsoever to prove his case, and win a murder verdict because the judges knew him.

He decided that the time was, to quit "the practice of law".

A brilliant legal mind.

He taught me how to look at the POLICE BRUTALITY.

A kid had taken too many drugs, mushrooms or some mind-altering chemical, and he was out without his clothing looking for his brain when the cops showed up.

The kid got shot, but of course. He wasn't black.

The attorney went on line with all the other on-line discussions in the state where the murder took place, years ago now, 07-08, maybe 09, doubtful though.

He, the attorney, wrote:

Think about this for a minute:

The kid was in the car restrained in the back of the car and somehow he got out of the locked car and went for a cop and the cop shot him in fear for his life.

Don Siegelman was the governor of Alabama during the time that Karl Rove and the Republican Party were running the operation that was and is to this day, the secret government that runs the USA, or Don Siegelman would not be in prison.

The Transnational Corporations have taken over the western planet earth and decided how the populations of humans live.

Look at the Transnational Corporations and NATO and the so called "money" that runs this operation that runs the USA.

Don Siegelman knows and trusted the system has enough moral Americans to not allow the full fascism he saw hitting the fan, but blowback has met him fully.

The time can continue and the Americans can wake-up, or not.

Judges are not higher cultivated human beings, they are lawyers and lawyers are mostly in for the money and the power of being able to use the system of criminal fraud.

How can a system ignore the counterfeit money sold as though real exchange value, unless the corruption works for the corrupt.

And the more corrupt the powerful the more powerful the corruption grows until the inevitable.

2015, yes the words of may our times be interesting bursts into the world according to how.

Watch for the continued brainwashing from the airwaves that are necessities to be aware that, that Alabama has chosen to not honor the Constitutional Republic.

And for the truth of the whole reality, there is not any moral justice supporting the truth of good law in a place where the white power mafia KKK rule. The Alabama leadership are addicted to the Fed's counterfeit Reserve Note because the POLICE are protecting the criminal fraud.

The news media prove to us every day how we are to be killed, and Roger knows just how dangerous the criminally insane are.

Sad that happened Roger and Carol, the horror is forever, too, and so the prayer is healing and stopping further horrors.

The internet is the tool that can actualize the change we must co-create, all Americans and all the human beings in earth.

We pay to live here, most all, and we pay the worst of our species to live in "their earth". We pay to be treated worse than our natural environment contracts in the promises we all decide.

2015, A year to get the consciousness of Alabama as enlightened as your audience and family.

Thanks for your work