"Feaga facts" helped send Don Siegelman to prison, and they still are being concocted in an effort to sell the public on a prosecution that remains a travesty

Don Siegelman and fellow federal inmate Charlie Cloud
after the former Alabama governor recently was
released from 57 days in solitary confinement.

During the investigation of former Alabama Governor Don Siegelman, prosecutor Steve Feaga reportedly became known to those behind the scenes for trying to create doctored or manufactured witness testimony. The process became so routine and blatant that one investigator called the results "Feaga facts."

"Feaga facts," of course, were not facts at all. They were the results of coaching and coercion from federal prosecutors,  who were determined to win convictions at any cost. Evidence strongly suggests that "Feaga facts" played a major role in sending Siegelman and codefendant Richard Scrushy to federal prison for what we've called "a crime that doesn't exist."

Steve Feaga now has come out from behind closed doors with an op-ed piece in the Montgomery Advertiser that apparently is designed to shove "Feaga facts" down the public's collective throat. A Josh Moon column in the same newspaper, saying that Siegelman should be pardoned and never should have been imprisoned in the first place, caused Feaga to spring into action--all in an effort to justify a prosecution that Moon correctly calls a "travesty" and an "embarrassment."

Even more embarrassing is this: We learn that Feaga, who currently works for the Alabama Securities Commission (according to state-bar records), is as deceitful now as he was when he was trying to build a case against Siegelman and Scrushy. Let's take a few statements from his op-ed piece and stack them up against reality:

(1) Feaga Fact -- "Leura Canary inherited the Montgomery investigation of Siegelman from her predecessor and after a few months recused herself. She played no role in bringing the investigation or in any of the charging decisions. Nor did her husband Billy Canary or Karl Rove or Bob Riley. I know this to be so because I was present and had a lead role in these decisions. Nobody who was not a part of the prosecution team was involved in the process."

Reality --  (A) The Department of Justice's (DOJ) own actions suggest Leura Canary played more of a role in the Siegelman case than she has let on. Alabama attorney John Aaron, for almost 10 years, has sought documents about Canary's alleged recusal. Aaron has learned that more than 1,000 documents exist related to his request, but the DOJ has refused to turn over these supposedly public records. Has Leura Canary--or Steve Feaga, for that matter--ever encouraged the DOJ to release all such records related to the Siegelman case? Nope. Why not?

(B)  Retired U.S. Magistrate Charles S. Coody stated in public documents that he had reviewed the Canary documents in camera and found no material that would help Siegelman and Scrushy. The public later learned that Coody never ordered the Canary documents, so he could not possibly have reviewed them. Why would a federal judge lie about having reviewed the Canary documents?

(C) DOJ whistleblower Tamarah Grimes stated in a letter to U.S. Attorney General Eric Holder that Canary remained involved with the Siegelman case long after her announced recusal. (See full letter at the end of this post.) Patricia Snyder Watson, the district ethics officer and first assistant U.S. attorney at the time, was a frequent conduit of information to and from Canary about what became known in the office as "The Big Case," Grimes wrote:

Mrs. Canary publicly stated that she maintained a "firewall" between herself and The Big Case. In reality, there was no "firewall." Mrs. Canary maintained direct communication with the prosecution team, directed some actions in the case, and monitored the case through members of the prosecution team and Mrs. Watson.

Feaga tries to erect a number of "straw man" issues here, claiming Canary inherited the Siegelman case from her predecessor and that she played no role in bringing the investigation or making charging decisions. But all of those claims are beside the point. The issue is this: Did Leura Canary totally step away from the case, did she truly recuse herself, ensuring that Siegelman and Scrushy received an impartial prosecutor to which they are entitled under the law? The answer, based on Tamarah Grimes' statements, is no. Feaga surely knows this, but he is trying to con the public into believing otherwise.

(2) Feaga Fact -- "Mr. Moon repeats allegations from a so-called “Republican attorney” about Rove or the Justice Department targeting Siegelman for political reason. Mr. Moon does not report that all of the alleged participants have denied ever having such a conversation. Most critically, Mr. Moon fails to report that one of the people disputing the claims was a member of the defense team at the trial."

Reality -- The "participants" to whom Feaga refers are Birmingham attorneys Rob Riley and Matt Lembke, and retired Alabama Supreme Court Justice Terry Butts. Rainsville attorney Jill Simpson (Feaga's "so-called Republican attorney") stated in an affidavit, and in sworn testimony before Congress, that the three participated in a conference phone call in which Bill Canary said a plan was in place for a politically-motivated prosecution of Siegelman, and someone named "Karl" (apparently Karl Rove) was aware of the plan and approved of it.

Riley, Lembke, and Butts all filed affidavits with Congress in response to Simpson's statements. But none of the three ever has denied under oath that such a phone conversation took place. Instead, they used lawyerly "hedge" language to give the impression Simpson was mistaken or lying. But they never actually denied being part of such a conversation. Here are examples of hedge language from the affidavits:

Riley 

"I have no memory of being on a phone call . . ." 

"I do not believe a phone call occurred . . ."

Butts 

". . . nor do I recall, any conference call occurring with Ms. Simpson . . . "

"As I recall, none of us were ever outside each other's presence on that day . . . " 

"Again, I neither recall any such call, nor do I believe any such call/conversation . . . ever took place."

Lembke

"I do not recall the phone call that Ms. Simpson claims took place between her . . . "

"I do not believe that I was out of Justice Butts' and Rob Riley's presence for 11 consecutive minutes . . . "

Steve Feaga

There is a big difference between saying "I do not recall such a phone call" and "Such a phone call never took place." Riley, Butts, and Lembke state the former over and over. they never state the latter. Is Feaga trying to convince the public that Jill Simpson is a liar, a loon, or a nut? Without question. Is Feaga wrong about that--and is his version of events deeply flawed? Absolutely.


(3) Feaga Fact -- "Mr. Moon is also wrong about the jury instruction. He should read the record of the trial. Judge Fuller instructed the jury that an express quid pro quo was necessary, and every appellate court that has reviewed the case has said so."

Reality -- Feaga is wildly off target with this one. Both sides at trial agreed that the binding law comes from a case styled McCormick v. U.S., 500 U.S. 257 (1991). Here is how McCormick states the law--and what should be the jury instruction:

. . . only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.”

Here is Judge Mark Fuller's jury instruction in the Siegelman case. It's different from the McCormick finding; in fact, it's almost backward from the actual law, :

A Defendant does not commit a crime by giving something of value to a government official unless the Defendant and official agree that the official will take specific action in exchange for the thing of value.

What's wrong with Fuller's jury instruction? For one thing, it's not an accurate statement of the law. But here's the bigger point, as we stated in an earlier post:

Fuller's instruction, however, turned the law on its head, focusing on an action and not an agreement. The Eleventh Circuit has said Fuller's instruction was OK because it was in line with another case, Evans v. U.S., 504 U.S. 255 (1992). But Evans did not involve a campaign contribution, so it is not applicable to the Siegelman case; the alleged facts and legal issues in the two cases are radically different.

The Eleventh Circuit muddies the water further by stating that Siegelman's lawyers claim an agreement must be "express" (memorialized in writing, etc.) rather than "explicit." This appears to be a classic red herring because Siegelman's lawyers do not make that claim. They state, correctly, that McCormick is the guiding law for a bribery charge involving campaign contributions.

(4) Feaga Fact -- "Nick Bailey was one of several witnesses called at the trial to establish the express quid pro quo. He was cross-examined for three days at the trial by four capable attorneys. He did not retract his testimony during the trial and never has since. His testimony was supported by other testimony and other evidence. The trial jury was convinced beyond a reasonable doubt, and every court to review their decision has opined that there was substantial and compelling evidence at trial to support the verdict."

Reality -- Feaga seems to have a selective memory about Nick Bailey. Here is how Tamarah Grimes, in her letter to AG Holder, described the prosecution's treatment of Bailey:

I particularly recall one meeting in which cooperating witness Nick Bailey was persuaded to recall something that he claimed he did not actually recollect. The matter concerned a meeting between Governor Siegelman and Richard Scrushy, a check and supposed conversation, which eventually led to the convictions in The Big Case. Mr. Bailey repeatedly said he did not know and he was not sure. The prosecutors coaxed and pressured Mr. Bailey to "remember" their version of alleged events. Mr. Bailey appeared apprehensive and hesitant to disappoint the prosecutors.

After reading that, the public is supposed to believe Nick Bailey told the unvarnished truth on the stand? It sounds like Nick Bailey took the stand in a state of utter confusion.

Finally, Feaga makes the preposterous claim that the public should believe in the verdict because the U.S. Eleventh Circuit Court of Appeals upheld it. In truth, the various three-judge panels on the Atlanta-based court botched the Siegelman case as badly as the trial court did--maybe even more so.

In fact, the Eleventh Circuit could not even get the simplest things right, as we explained in an August 2012 post:

The Siegelman case, by law, could not go to a jury--much less result in convictions. And yet, Scrushy already has served a six-year federal prison sentence, and Siegelman is due back in federal custody by September 11.

What is the one issue that should have doomed the prosecution's case before it ever reached a jury? It was the statute of limitations, and the facts and the law, show the case against Siegelman and Scrushy was brought almost one full year too late. So regardless of what one thinks about the testimony of key government witness Nick Bailey, the shaky jury instructions, the questionable juror behavior, the weak evidence on a quid pro quo ("something for something") agreement, and the myriad conflicts involving the judge and U.S. attorney . . . none of that should have been a factor.

Evidence at trial showed that the alleged acts constituting bribery took place in summer 1999, and the original indictment was issued in May 2005. That's almost six full years, even though the statute of limitations is five years. Failure to initiate the case within the applicable statute of limitations, under the law, is an absolute bar to a successful prosecution.

The statute of limitations issue was a matter of simple arithmetic, not much different from 2 + 2 = 4, and the U.S. Eleventh Circuit could not get it right. Steve Feaga wants the public to believe this august body is capable of conducting a semi-honest review of the Siegelman case?

As Charlie Brown would say, "Good grief."

Grimes Letter to Holder by Roger Shuler