Eleventh Circuit panel uses cheat job on Richard Scrushy to justify its latest cheat job on Don Siegelman

Don Siegelman

If the U.S. Eleventh Circuit Court of Appeals cannot uphold the law and dispense justice, it can at least provide consistency. That seems to be the lesson from the court's opinion yesterday that upheld convictions against former Alabama governor Don Siegelman by pointing to its earlier ruling against codefendant and former HealthSouth CEO Richard Scrushy.

In the process, a three-judge panel virtually ignored perhaps the single most important issue raised on the Siegelman appeal--that, under the law, the former governor is entitled to discovery on whether former U.S. attorney Leura Canary abided by her supposed recusal in the case.

How did the Eleventh Circuit paper over this inconvenient truth? By essentially saying, "Well, we screwed Scrushy on this issue, so in order to be consistent, we have to screw Siegelman, too."

The panel didn't actually use those words. Instead, they used a fancy legal term called "law of the case." But when considered in the context of numerous erroneous rulings in the Siegelman matter, "law of the case" pretty much means, "We've made huge numbers of mistakes in this case, so we've got to keep right on making them."

How's that for postmodern American justice? Ain't it grand?

Ironically, the appellate ruling came just two days after our most recent post showing that a U.S. magistrate in Montgomery, Alabama, made unlawful rulings on discovery issues in the case--and lied about it in court documents.

Is Siegelman out of options? Technically, the answer is no. He could seek an en banc hearing of the full Eleventh Circuit (minus Birmingham-based Bill Pryor, who has enough conflicts in the matter to sink the USS Missouri.) He also could seek review from the U.S. Supreme Court, which already has declined to hear the case once. A presidential pardon is not out of the question. But the grim truth is this: The federal judiciary and the Obama Department of Justice (DOJ) are deeply invested in covering up scandalous actions in the Siegelman case, so it's hard to see help coming from either of them.

What if the public became enraged enough to conduct street protests, around the country, similar to those recently seen in Baltimore? The Siegelman fiasco merits that sort of outrage, but large numbers of Americans have moved on to other concerns--like when will Bruce Jenner officially become a "she."

As for the Eleventh Circuit's ruling yesterday, the appellate judges clearly based their Siegelman finding on the wildly deceitful actions of Charles Coody, a U.S. magistrate in the Middle District of Alabama. The panel judges also provided cover for their corrupt colleague. Neither of those moves should surprise anyone.

Coody is noted for denying Siegelman/Scrushy discovery requests on the Canary issue, after claiming to have reviewed all relevant documents himself in camera--and announcing they provided no helpful evidence for the defendants. Unfortunately, court documents show that Coody didn't even order the Canary documents from the DOJ (totaling some 1,000 pages), so he could not possibly have reviewed them.

How do the Eleventh Circuit judges deal with this slight problem? One, they reference a magistrate judge and his rulings, but they never mention Coody's name. Two, they act as if the Siegelman legal team didn't bring up the Canary discovery issue.

The truth, of course, is that the Siegelman appellate brief puts that issue front and center. This is from "Statement of the Issues" on page 1 of the brief:

1. Whether the participation in Siegelman’s prosecution by United States Attorney Leura Canary, after she had ostensibly disqualified herself from the case due to a conflict of interests, necessitates a new trial, or at least warrants an evidentiary hearing.

Beginning on page 29 of the brief, Siegelman lawyers devote almost three full pages to Canary-related discovery, under the heading, "At a Minimum, Siegelman Was Entitled to Discovery on this Issue." Here is the heart of the argument:

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 (11th Cir. 2006) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997))

In other words, Siegelman was entitled--under Eleventh Circuit case, backed up by U.S. Supreme Court precedent--to fully develop the facts. And that's because he made specific allegations that Canary's participation violated his constitutional right to a disinterested prosecutor.

How did the appellate panel deal with this central issue? It's a struggle to find it, in footnote 7 on page 13 of the ruling:

We also affirm the magistrate judge’s denial of Siegelman’s related motion for additional discovery on this issue. See Scrushy, 721 F.3d at 1303 n.27.

Again, the court is saying, in so many words, "We butchered this issue for Scrushy, so the law requires us to do the same thing with Siegelman."

That brings us back to the fancy "law of the case" notion. Here's how the court explains it:

As most commonly defined, the law-of-the-case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case .” Pepper v. United States, 131 S. Ct. 1229, 1250 (2011) . . .  Importantly, we also have held that the doctrine applies to those issues decided on a co-defendant’s earlier but closely related appeal. See United States v. Bushert, 997 F.2d 1343, 1356 (11th Cir. 1993) (holding that the co-defendants’ prior appeal mooted any subsequent appeal by the defendant under the law-of-the-case doctrine because the defendant’s appeal would have challenged the same joint motion that his co-defendants’ appeal had unsuccessfully challenged).

Does "law of the case" always apply? No, and the court writes:

There are some narrow exceptions to the law-of-the-case doctrine. See United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996) (“We have recognized narrow exceptions to the law of the case doctrine, where there is new evidence, an intervening change in controlling law dictating a different result, or the appellate decision, if implemented, would cause manifest injustice because it is clearly erroneous.”). We conclude that none of these exceptions apply here . . . 

This is a classic example of how a corrupt court works. It says that Siegelman could overcome "law of the case" with new evidence, but it denies the opportunity to obtain new evidence--even though Siegelman is entitled to it under the binding precedent of Arthur v. Allen.

Does binding precedent matter in federal cases that arise in Alabama, Georgia, and Florida--the three states covered under the Eleventh Circuit? The obvious answer is no, not when precedent would interfere with the court's predetermined outcome.

Siegelman--Eleventh Circuit Ruling (May 2015) by Roger Shuler