Did FBI agent's extramarital affairs taint the Milton McGregor and Don Siegelman cases in Alabama?

Milton McGregor

An FBI agent who played a central role in the Alabama bingo trial and the Don Siegelman prosecution was conducting extramarital affairs with court personnel during both cases, according to a report yesterday from the Montgomery Advertister.

Agent Keith Baker's affair with a court reporter became known during the 2011 bingo trial, where VictoryLand owner Milton McGregor was among several high-profile defendants. At the same time, an assistant U.S. attorney told federal judge Myron Thompson that Baker had carried on "an inappropriate relationship with a female courtroom deputy" during the Siegelman trial in 2006.

The Advertiser obtained records that show more than 8,000 text messages sent and received by Baker during the bingo investigation are missing from his phone and from backup computer servers at FBI headquarters in Virginia. Defendants were able to retrieve a few messages from Baker's phone, and one of them suggested the FBI agent had communicated with Governor Bob Riley in late 2010.

The new revelations probably explain Baker's mysterious absences from the courtroom during key junctures in the bingo trial. They also add to the substantial string of stories that raise questions about Baker's character. For example, the Montgomery Independent reported that Baker and another FBI agent harassed former deputy attorney general Bob Caviness in the week's leading to Caviness' suicide in November 2010--all because the agents mistakenly suspected Caviness was trying to help McGregor during the bingo probe.

Does that sound like Baker took an objective approach to his investigative work? No, it does not. Is it possible that Baker violated the due process rights of McGregor and other defendants, who supposedly are guaranteed a disinterested prosecution team under the U.S. Constitution? Yes, it is.

Baker now works as an investigator in the Alabama Attorney General's Office. Both Baker and the AG's office declined interview requests, the Advertiser's Josh Moon reports.

How did all of this come to light? Moon explains:

Details of Baker’s affair and an alleged cover-up are contained in thousands of pages of previously-sealed motions, orders and transcripts from closed hearings and in-chambers conferences, all of which were recently made public when a federal judge granted the Montgomery Advertiser’s motion to unseal those records. The Advertiser filed that motion last September after learning of the sealed records during its reporting on the history of gambling in Alabama.

Those records highlight a three-month-long fight — a sort of secret trial-within-a-trial — between prosecutors and the team of defense attorneys, who were representing the nine defendants in the case, over whether to allow Baker to be questioned in open court about the affair.

Here are a few of the many questions raised by Moon's report:

* The two bingo trials resulted in zero convictions, and one legal analyst called the outcome "one of the most remarkable setbacks nationally" for federal prosecutors in decades. But three defendants--Ronnie Gilley, Jarrod Massey, and Jennifer Pouncy--pleaded guilty. In light of the Baker revelations, should the court review those guilty pleas?

* The Siegelman trial resulted in convictions for the former governor and codefendant Richard Scrushy, former CEO of HealthSouth. Should those convictions now be reviewed, were they possibly tainted by Keith Baker's extracurricular activities?

* Was there, in fact, an attempt to cover up Baker's misdeeds? If so, who was involved, and what form did the cover-up take?

* Does the Baker text message that references a conversation with Bob Riley confirm what many have believed all along--that the former governor played a major role in pushing for the bingo prosecution?

* Can things get any worse for Attorney General Luther Strange? In recent months, he has forced out assistant AG Sonny Reagan and investigator Gene Sisson for leaking grand jury information related to the investigation of House Speaker Mike Hubbard (R-Auburn) in Lee County. Now, it looks like another member of the AG's staff has a history of engaging in unethical activities.

* What if the FBI retrieves all of the messages from Baker's phone, and they reveal that the bingo prosecution was a sham from the outset? Should the U.S. Justice Department conduct an investigation of phones and computers used by all government investigators and prosecutors during the case? Should a similar investigation be conducted related to the Siegelman case? What if Keith Baker represents the tip of a massive iceberg of corruption, which originated when George W. Bush officials were in charge of the DOJ?

Are the sexual escapades of a government investigator important in the context of a federal investigation and trial? This, from Josh Moon's report, helps answer that question:

After learning of Baker’s transgressions — and then being told by Assistant U.S. Attorney Louis Franklin that Baker also had an inappropriate relationship with a female courtroom deputy during former Gov. Don Siegelman’s trial — Thompson let his displeasure be known.

“It is a very serious matter ... and it does compromise the proceedings, at least in appearance, and can compromise it in substance,” Thompson said from the bench during one of the closed hearings. “If a witness was having an affair with my court reporter, I’ll tell you right now, that court reporter would not be working for me tomorrow. Now that’s how serious it is.

“And that’s in a courtroom. A grand jury proceeding is just so serious, because there’s no judge presiding. The integrity is just — it’s paramount.”

As for the missing text messages, Thompson allowed an FBI information-technology expert to be questioned by both sides in a closed hearing:

Jason Amos, then an IT specialist for the FBI, testified that FBI-issued cell phones are backed up by a server, which meant that any text message Baker sent or received on his FBI Blackberry should have also been duplicated and stored at FBI headquarters.

Baker testified that when he received the request to provide his text messages for the times related to his investigation, he realized they were gone. A check on the FBI servers revealed the copies were also missing for that period of time.

Baker’s more than 8,000 text messages were the only ones Amos said he could say for certain were missing from any FBI agent in the country, although he added he wouldn’t necessarily know of missing messages unless asked to pull records for specific agents. While messages did sometimes go missing, Amos said the other agents he checked during that span experienced no issues and that there had been no changes to the system that would have prompted or corrected an issue with the servers.

The FBI was able to retrieve time stamps on the missing messages, and they revealed that some of the missing messages went to and from former Sen. Scott Beason, who was a government witness in the case.

Of the few messages that were retrieved, what about the one that referred to Bob Riley?

Despite the missing messages, the defendants were able to get some messages from Baker’s phone. Of the 10 messages Thompson allowed into the record, one exchange in particular stood out to the pro-gaming faction.

On Nov. 6, 2010, Baker messaged the court reporter: “Just talked to Gov Riley,” he said.

“You love it,” she replied. Then, four minutes later: “Hope you are having fun.”

“I’m having fun,” Baker replied.

McGregor’s attorneys, who never got an opportunity to question Baker about the message, believe it could be the smoking gun link tying the former governor to the investigation. But government attorneys denied that, saying the text was an innocent, tongue-in-cheek joke by Baker, who had been on the field at Auburn’s homecoming football game and shook hands with Riley at one point.

For his part, Riley has denied any involvement in the case, and during an interview with the Advertiser last year, Riley said the allegations “simply are not true.”

All of this raises more than just ethical questions for Alabama taxpayers; it also raises concerns about finances. According to Moon, reports from various sources show the state has spent more than $9 million on an anti-gambling crusade that Riley launched in 2008, and Strange continued upon his election in 2010.

Now, it looks like the whole process might have been tainted with corruption.