Tomorrow's hearing in Montgomery should be short and sweet, ending with Don Siegelman's release

Don Siegelman

If former Alabama governor Don Siegelman finally has an honest and competent judge on his case, tomorrow's hearing in Montgomery should not last long.

Clay Land, from the Middle District of Georgia, has been named to replace original trial judge Mark Fuller, in the wake of Fuller's wife-beating scandal.

The point of tomorrow's hearing, set for 10:30 a.m. at the Federal Courthouse in Montgomery, is to determine if Siegelman should be released from prison, pending the U.S. Eleventh Circuit's consideration of his appeal on January 13.

If Land has reviewed the file--and it's one of the most controversial white-collar criminal prosecutions of the past 50 years--he should say something like this:

"Gov. Siegelman, the record shows that you and your codefendant, Richard Scrushy, have been through a nightmare--one that never should happen on American soil. You have served years in federal custody for crimes you did not commit. In fact, you were convicted of "crimes" that do not exist under the law. That's because the trial court gave incorrect jury instructions that do not match any language to be found in the relevant statutory or case law.

"The record is filled with evidence of juror misconduct, prosecutorial misconduct (including coaching and threatening of a key witness, plus failure to turn over potentially exculpatory evidence), and dubious rulings from the bench--by a judge we now know has serious problems with alcohol and prescription painkillers.

"On top of that, we see indications there was insufficient evidence to convict, in part because a check Mr. Scrushy allegedly handed to you, in which the government contends was a corrupt deal, had not been written at the time witness Nick Bailey said the transaction took place. Mr. Bailey testified that you left the meeting with a check, but evidence shows that could not have happened. What else did Mr. Bailey get wrong?

"My No. 1 concern, however, is that, by law, you and Mr. Scrushy never should have gone to trial. The government wrote an indictment that was so vague the defendants hardly knew what they were defending themselves against. When you asked for a bill of particulars from the government, seeking specifics about the charges, the trial judge inexplicably denied the request. Even Jerry Sandusky, the convicted child rapist and former Penn State football coach, was granted such a request at his trial.

"It wasn't until deep into your trial, that it became evident the alleged unlawful conduct took place in summer 1999, and the indictment was issued on May 17, 2005. Almost six full years had elapsed, meaning the charges were brought well after the five-year statute of limitations had expired. Your counsel properly sought a judgment of acquittal on statute-of-limitations grounds, but the trial court denied it.

Judge Clay Land

"My duty here today is not to consider issues related to your appeal. But I will say that it's hard to comprehend how the Eleventh Circuit has denied your appeals to this point, given what the record clearly shows. If Congress decides to conduct a far-reaching investigation of the federal judiciary in the wake of this case . . . well, we deserve it. I see every reason why citizens would question the honesty and competence of our courts because of the gross mishandling of this high-profile case.

"What will happen with your appeal, which is due to be heard in January? I don't know what will happen, but I know what should happen. As I've stated already, you could not lawfully stand trial because the government did not act within the five-year statute of limitations. That means that granting you a new trial would be inappropriate.

"The only correct and lawful finding is to find you and Mr. Scrushy not guilty of all charges.

"As for my decision here today, that is an easy one: You are due to be released immediately from federal custody, pending the Eleventh Circuit's hearing of your appeal.

"My best wishes to you, your family, your friends, and supporters. I hope someday you will find reason to once again have confidence in a justice system that has so badly betrayed you in this matter.

"Court is adjourned, and Mr. Siegelman, you are free to go."