Readers have sent a number of interesting justice-related stories recently. Let's take a look:
Suppression of Prosecution in Wisconsin?
The issue of selective prosecution by the Bush Department of Justice (DOJ) so far has focused on cases where individuals are prosecuted for apparently political reasons. But the flip side of that--cases where individuals are not prosecuted for political reasons--has received far less attention.
But a possible case of such "suppression of prosecution" is receiving attention in Wisconsin.
The case involves Wisconsin Supreme Court Justice Annette Ziegler, who presided over cases as a circuit judge where she had a conflict of interest. A three-judge panel recommended that Ziegler, a Republican, received a reprimand for handling at least 11 cases involving a bank at which her husband served on the board of directors. The reprimand is the least severe punishment Ziegler could have received.
The recommendation was criticized by the Wisconsin Democracy Campaign, which had filed a complaint against Ziegler. "When a reprimand--at best--is standard discipline for judges who run afoul of ethics rules, the bar has been set too low," said Mike McCabe, executive director of the Democracy Campaign. "In fact, the bar couldn't get any lower without digging a trench."
News accounts I've seen have not indicated how Ziegler ruled in cases involving West Bend Savings Bank. But it appears that she ruled in the bank's favor. It's possible that, under the facts and the law in each case, she should have ruled in the bank's favor. But news accounts evidently have not explored that side of the story.
Reports do say that the three-judge panel found that Ziegler "didn't personally benefit" from her decisions in the cases. (That language should be of interest to Don Siegelman supporters.)
And here's a key question: Was there any evidence of possible criminal acts--bribery or honest-services mail fraud? Did the Bush DOJ even look into such a possibility when the target was a prominent Republican?
A Democrat Beats the Rap
Carl Marlinga, former prosecutor in Macomb County, Michigan, might have been one of the first Democrats to be targeted by the Bush Department of Justice (DOJ). So far, he is one of the few Democrats to clearly beat the rap.
Marlinga faced up to 10 years in prison and $250,000 in fines for allegedly swapping prosecutorial favors in two rape cases for contributions to his failed 2002 congressional campaign. He was charged with bribery, honest-services mail fraud, making false statements to the Federal Elections Commission, and exceeding campaign-contribution limits.
A popular Democrat who had served as county prosecutor for 20 years, Marlinga was forced to step down after an indictment was issued in April 2004. But in September 2006, a federal jury found him not guilty on all charges.
Here is a fascinating point about the Marlinga case: He testified in his own defense. That did not occur in the Don Siegelman (Alabama) or the Paul Minor (Mississippi) cases.
"We all felt that it was the greatest thing that Carl Marlinga got on the stand," juror Sue Kramer said. "You could get a real sense of who he is and what was in his heart."
Mark Kriger and N.C. Deday LaRene served as Marlinga's defense attorneys.
I'm not a lawyer, and I'm sure there are many good reasons that defense attorneys often instruct defendants not to take the stand. But I suspect many jurors feel like Ms. Kramer: If the defendant does not stand up for himself, he appears at least a little guilty.
Everything I've seen indicates that Siegelman and Minor had excellent attorneys. But you wonder if the defendants could have overcome everything stacked against them, including corrupt judges, if they had spoken directly to the jurors.
Tuesday, January 8, 2008
Monday, January 7, 2008
Mobile Register Puckers Up
The laziness and intellectual dishonesty of the Mobile Press-Register is on bold display today.
In an editorial titled "Siegelman's Jailing Backed by Legal Logic," the Register intones that U.S. District Judge Mark Fuller "had good reasons for not letting former Alabama Gov. Don Siegelman out of prison on bond pending appeal of his June 2006 conviction on corruption-related charges."
A more fitting headline would have been: "Siegelman's Jailing Lacks Legal Logic."
Actually, it's not a matter of logic. The 11th Circuit Court of Appeals did not ask Fuller for any logic to explain his decision to keep Siegelman in prison pending appeal. The 11th Circuit asked Fuller to provide some facts and law that support his decision. At this task, Fuller failed utterly.
But when it comes to receiving the Register's big, fat kiss on his nice judicial fanny, Fuller succeeds spectacularly.
In fact, the Register's editorial writer was so busy puckering up that he or she could not bother to do the slightest homework.
Consider this paragraph:
"In his detailed statement, the judge pointed out that the prosecution didn't have to prove a quid pro quo between Mr. Siegelman and Mr. Scrushy, as both men contend. Judge Fuller said the statute under which the men were convicted does not require prosecutors to prove there was a joint understanding that the money was changing hands in return for a specific benefit."
The writer obviously has no clue about federal law. Federal statutes are notoriously broad, and one almost always must dig into the case law to understand what courts have found to be the specifics of a particular crime. And one does not have to dig far into 11th Circuit case law, to see that the Register's statement above is wrong.
We have shown that long-established 11 th Circuit precedent has held that a quid pro quo is required for a conviction on bribery. The most recent example is a 2007 case called U.S. v. McCarter. Try looking it up, Register folks. It's not that hard.
And then get a load of this final paragraph:
"In the meantime, the public can rest assured that Judge Fuller made a logical decision when he sent Mr. Siegelman and Mr. Scrushy directly to prison."
What the public actually can rest assured of is that the Register is trying to provide cover for a corrupt judge and a sham prosecution.
How many Alabamians will see through the Register's morally bankrupt act?
In an editorial titled "Siegelman's Jailing Backed by Legal Logic," the Register intones that U.S. District Judge Mark Fuller "had good reasons for not letting former Alabama Gov. Don Siegelman out of prison on bond pending appeal of his June 2006 conviction on corruption-related charges."
A more fitting headline would have been: "Siegelman's Jailing Lacks Legal Logic."
Actually, it's not a matter of logic. The 11th Circuit Court of Appeals did not ask Fuller for any logic to explain his decision to keep Siegelman in prison pending appeal. The 11th Circuit asked Fuller to provide some facts and law that support his decision. At this task, Fuller failed utterly.
But when it comes to receiving the Register's big, fat kiss on his nice judicial fanny, Fuller succeeds spectacularly.
In fact, the Register's editorial writer was so busy puckering up that he or she could not bother to do the slightest homework.
Consider this paragraph:
"In his detailed statement, the judge pointed out that the prosecution didn't have to prove a quid pro quo between Mr. Siegelman and Mr. Scrushy, as both men contend. Judge Fuller said the statute under which the men were convicted does not require prosecutors to prove there was a joint understanding that the money was changing hands in return for a specific benefit."
The writer obviously has no clue about federal law. Federal statutes are notoriously broad, and one almost always must dig into the case law to understand what courts have found to be the specifics of a particular crime. And one does not have to dig far into 11th Circuit case law, to see that the Register's statement above is wrong.
We have shown that long-established 11 th Circuit precedent has held that a quid pro quo is required for a conviction on bribery. The most recent example is a 2007 case called U.S. v. McCarter. Try looking it up, Register folks. It's not that hard.
And then get a load of this final paragraph:
"In the meantime, the public can rest assured that Judge Fuller made a logical decision when he sent Mr. Siegelman and Mr. Scrushy directly to prison."
What the public actually can rest assured of is that the Register is trying to provide cover for a corrupt judge and a sham prosecution.
How many Alabamians will see through the Register's morally bankrupt act?
Fuller Makes Siegelman's Case for Him
Former Alabama Governor Don Siegelman probably thought U.S. District Judge Mark Fuller never would do him a favor. But Fuller has inadvertently done just that.
The point of Fuller's recent 30-page memorandum opinion was supposed to be that Siegelman should remain in federal prison pending appeal. But the opinion does just the opposite. In fact, Fuller actually makes Siegelman's case for him--showing that, under the law and the facts, Siegelman must be released from prison pending appeal.
How could a federal judge, someone you assume to be rather intelligent, make such a gaffe? My only explanation is this: People who are attempting to cover up wrongdoing are prone to step in doo-doo. And if you actually read Fuller's opinion with a somewhat critical eye, it becomes clear that the judge has stepped in doo-doo big time with this one.
And that makes me think he is doing his darnedest to cover up a sham of a prosecution.
With two recent posts, we have shown that Fuller's own memo proves that Siegelman, by law, should be released from prison pending appeal. And it's not even a close call.
Fuller worked up a 30-page memo in an apparent effort to make this look like a complicated matter. Well, it isn't. All you need to do is read roughly three pages of his opinion, conduct some quick legal research and . . . presto, you see that Judge Mark Fuller is blowing some serious smoke.
Here's an easy way to sum it up:
* The key question is: Does the appeal raise a substantial question of law or fact that, if found in the defendant's favor, would result in reversal or an order for a new trial.
* Fuller's own words show there is a substantial question of law on both key charges--federal-funds bribery and honest-services mail fraud.
* On bribery, Fuller indicates there is some question whether 11th Circuit law requires a quid pro quo, a "something-for-something" arrangement, in order to have a conviction. And as we have shown from a 2007 case--U.S. v. McCarter, 219 Fed. Appx. 921--there is no question about it. The language in McCarter is clear: "To prove a defendant is guilty of bribery, the government must prove there was a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." And McCarter is based on a 1999 U.S. Supreme Court decision, so its grounded in pretty solid stuff. So there you have it: The judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 1, Fuller 0.
* On honest-services mail fraud, Fuller indicates that he has no clue what he is talking about. He states that there is some question whether a quid pro quo is required for a mail-fraud conviction. And as we have shown, a quid pro quo has nothing to do with mail fraud. It is not remotely an element of the crime. Once again, the judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 2, Fuller 0.
* As for questions of fact, all facts are in question because there is no transcript of the case--and there won't be one for at least another two months. Fuller spends almost 16 pages of his memo reciting his version of facts in the case. But those are not facts, in a legal sense, at all. And one can only wonder what dark crevice he pulled them from. Score: Siegelman 3, Fuller 0.
I would say Siegelman is pitching a shut out, and Fuller is toast.
Does this mean the 11th Circuit Court of Appeals will be releasing Siegelman from prison any moment? Of course not. That court is made up of judges, and the whole point of this blog is to show that judges often are the last people you want to trust with the law. And for all I know, the 11th Circuit might consist of justices whose respect for the law may be no greater than Fuller's.
But if the law still means anything in the Age of Rove--and that's a mighty big if--Don Siegelman should be out of prison pretty darn soon.
Mark Fuller's own words prove it.
The point of Fuller's recent 30-page memorandum opinion was supposed to be that Siegelman should remain in federal prison pending appeal. But the opinion does just the opposite. In fact, Fuller actually makes Siegelman's case for him--showing that, under the law and the facts, Siegelman must be released from prison pending appeal.
How could a federal judge, someone you assume to be rather intelligent, make such a gaffe? My only explanation is this: People who are attempting to cover up wrongdoing are prone to step in doo-doo. And if you actually read Fuller's opinion with a somewhat critical eye, it becomes clear that the judge has stepped in doo-doo big time with this one.
And that makes me think he is doing his darnedest to cover up a sham of a prosecution.
With two recent posts, we have shown that Fuller's own memo proves that Siegelman, by law, should be released from prison pending appeal. And it's not even a close call.
Fuller worked up a 30-page memo in an apparent effort to make this look like a complicated matter. Well, it isn't. All you need to do is read roughly three pages of his opinion, conduct some quick legal research and . . . presto, you see that Judge Mark Fuller is blowing some serious smoke.
Here's an easy way to sum it up:
* The key question is: Does the appeal raise a substantial question of law or fact that, if found in the defendant's favor, would result in reversal or an order for a new trial.
* Fuller's own words show there is a substantial question of law on both key charges--federal-funds bribery and honest-services mail fraud.
* On bribery, Fuller indicates there is some question whether 11th Circuit law requires a quid pro quo, a "something-for-something" arrangement, in order to have a conviction. And as we have shown from a 2007 case--U.S. v. McCarter, 219 Fed. Appx. 921--there is no question about it. The language in McCarter is clear: "To prove a defendant is guilty of bribery, the government must prove there was a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." And McCarter is based on a 1999 U.S. Supreme Court decision, so its grounded in pretty solid stuff. So there you have it: The judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 1, Fuller 0.
* On honest-services mail fraud, Fuller indicates that he has no clue what he is talking about. He states that there is some question whether a quid pro quo is required for a mail-fraud conviction. And as we have shown, a quid pro quo has nothing to do with mail fraud. It is not remotely an element of the crime. Once again, the judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 2, Fuller 0.
* As for questions of fact, all facts are in question because there is no transcript of the case--and there won't be one for at least another two months. Fuller spends almost 16 pages of his memo reciting his version of facts in the case. But those are not facts, in a legal sense, at all. And one can only wonder what dark crevice he pulled them from. Score: Siegelman 3, Fuller 0.
I would say Siegelman is pitching a shut out, and Fuller is toast.
Does this mean the 11th Circuit Court of Appeals will be releasing Siegelman from prison any moment? Of course not. That court is made up of judges, and the whole point of this blog is to show that judges often are the last people you want to trust with the law. And for all I know, the 11th Circuit might consist of justices whose respect for the law may be no greater than Fuller's.
But if the law still means anything in the Age of Rove--and that's a mighty big if--Don Siegelman should be out of prison pretty darn soon.
Mark Fuller's own words prove it.
Sunday, January 6, 2008
Responding to "Dixie" Readers
Thanks to the folks at Daily Dixie for linking to our original post about U.S. District Judge Mark Fuller's memorandum opinion, outlining his reasons for denying release pending appeal in the Don Siegelman case.
The post generated a fair number of comments from Dixie readers, and I wanted to respond to a point that was raised several times. In fact, I've seen this point raised a number of places, regarding a number of criminal trials--and it has grown into the kind of myth that needs to be debunked.
The argument goes something like this: If a jury convicted someone of an offense, then the conviction must be correct and the trial must have been fair under the law.
In fact, let's just examine the way a Daily Dixie reader phrased it:
"I'm still waiting for one of them (Siegelman supporters) to tell us about how (Karl) Rove manipulated the jury. Oh, hold on. They never mention the jury. It's better to make it sound like some judge convicted Don (Siegelman) on his own. It doesn't sound so good to admit that Don was convicted on multiple charges by an uncorrupted jury of his peers."
If you ever have been a party in a jury trial--and I, unfortunately, have been (in a civil matter)--you know how the judge controls things, even though a "jury of your peers" supposedly makes the final decision.
In fact, we have done a number of posts showing how U.S. District Judge Henry Wingate unlawfully manipulated the facts and the law in the Paul Minor case in Mississippi. Our most recent post regarding Wingate can be found here.
Wingate used two critical tools at the judge's disposal to ensure the desired result in the Minor case: He made unlawful rulings regarding expert witnesses, rulings that essentially prevented the defendants from putting on a defense. And he gave unlawful jury instructions on the two key charges--bribery and honest-services mail fraud (the same two key charges that were present in the Siegelman case).
As I noted in my most recent post on Wingate, he not only did not get the law right in his jury instructions, he did not even get the right kind of law right. He actually based the jury instruction in a federal bribery case on Mississippi state law.
Many of you might have heard a variation of this quote about the limitations of computers: You put junk in, you get junk out.
Juries have the same limitations: If the judge puts junk rulings and junk instructions in, you are likely to get junk for a jury verdict. And it's not just "junk" we are talking about. We are talking about an "unlawful" verdict, one that can send innocent people to prison.
That unquestionably happened in the Minor case. And the evidence strongly suggests it happened in the Siegelman case, too. It's hard to say for sure in the Siegelman matter because no one has access to a trial transcript and probably won't for at least another two months.
The Daily Dixie reader's notion of a pure, unadulterated, and "uncorrupted" jury is not always a reality. That does not mean the jurors themselves are corrupt--although I have little doubt that has happened in some cases. But it certainly means that jurors can be unwittingly corrupted by the judge.
Jurors are lay people assigned an extremely important task. But as regular folks, they have little or no knowledge of the law that is relevant to a particular case. In that sense, any lay person serving on a jury (me included) is kind of like a computer--we're just a dumb box that can only output good information if someone inputs good data.
That someone who is supposed to input good data is a judge. And in the Age of Rove, we are increasingly seeing evidence that certain Republican judges, in both federal and state courts, intentionally input bad data in hopes of getting a politically motivated and lawfully flawed result.
In fact, I have a follow up to my original post about Fuller's memorandum opinion. This post shows the extremely shaky legal footing upon which Siegelman and codefendant Richard Scrushy are being kept in prison pending their appeals.
The post generated a fair number of comments from Dixie readers, and I wanted to respond to a point that was raised several times. In fact, I've seen this point raised a number of places, regarding a number of criminal trials--and it has grown into the kind of myth that needs to be debunked.
The argument goes something like this: If a jury convicted someone of an offense, then the conviction must be correct and the trial must have been fair under the law.
In fact, let's just examine the way a Daily Dixie reader phrased it:
"I'm still waiting for one of them (Siegelman supporters) to tell us about how (Karl) Rove manipulated the jury. Oh, hold on. They never mention the jury. It's better to make it sound like some judge convicted Don (Siegelman) on his own. It doesn't sound so good to admit that Don was convicted on multiple charges by an uncorrupted jury of his peers."
If you ever have been a party in a jury trial--and I, unfortunately, have been (in a civil matter)--you know how the judge controls things, even though a "jury of your peers" supposedly makes the final decision.
In fact, we have done a number of posts showing how U.S. District Judge Henry Wingate unlawfully manipulated the facts and the law in the Paul Minor case in Mississippi. Our most recent post regarding Wingate can be found here.
Wingate used two critical tools at the judge's disposal to ensure the desired result in the Minor case: He made unlawful rulings regarding expert witnesses, rulings that essentially prevented the defendants from putting on a defense. And he gave unlawful jury instructions on the two key charges--bribery and honest-services mail fraud (the same two key charges that were present in the Siegelman case).
As I noted in my most recent post on Wingate, he not only did not get the law right in his jury instructions, he did not even get the right kind of law right. He actually based the jury instruction in a federal bribery case on Mississippi state law.
Many of you might have heard a variation of this quote about the limitations of computers: You put junk in, you get junk out.
Juries have the same limitations: If the judge puts junk rulings and junk instructions in, you are likely to get junk for a jury verdict. And it's not just "junk" we are talking about. We are talking about an "unlawful" verdict, one that can send innocent people to prison.
That unquestionably happened in the Minor case. And the evidence strongly suggests it happened in the Siegelman case, too. It's hard to say for sure in the Siegelman matter because no one has access to a trial transcript and probably won't for at least another two months.
The Daily Dixie reader's notion of a pure, unadulterated, and "uncorrupted" jury is not always a reality. That does not mean the jurors themselves are corrupt--although I have little doubt that has happened in some cases. But it certainly means that jurors can be unwittingly corrupted by the judge.
Jurors are lay people assigned an extremely important task. But as regular folks, they have little or no knowledge of the law that is relevant to a particular case. In that sense, any lay person serving on a jury (me included) is kind of like a computer--we're just a dumb box that can only output good information if someone inputs good data.
That someone who is supposed to input good data is a judge. And in the Age of Rove, we are increasingly seeing evidence that certain Republican judges, in both federal and state courts, intentionally input bad data in hopes of getting a politically motivated and lawfully flawed result.
In fact, I have a follow up to my original post about Fuller's memorandum opinion. This post shows the extremely shaky legal footing upon which Siegelman and codefendant Richard Scrushy are being kept in prison pending their appeals.
Saturday, January 5, 2008
Rechecking the Mark Fuller Shuffle
More thoughts on the memorandum opinion by U.S. District Judge Mark Fuller, explaining his reasons for denying Don Siegelman's motion for release pending appeal. The more you study Fuller's memorandum, the more you understand why he put off writing it for so long. Fuller is like a fifth grader who did not do his homework, and now is having to explain that to his teacher. As you will see, Fuller's written explanation has holes large enough to drive a Peterbilt through:
* It's impossible to conduct a thorough analysis of Fuller's opinion without access to a trial transcript. We are forced to accept Fuller's version of events because we have no transcript to check against the judge's opinion. In fact, news comes today that the court reporter has been granted a second extension, until March 31, to complete the transcript. So that's almost another two months that Siegelman and Richard Scrushy must remain in prison because of the court's incompetence. And who is responsible for ensuring that a transcript is completed in a timely fashion? According to Scott Horton, of Harper's, it's Fuller himself.
* Here's a question for you: If no one has access to a transcript, how did Fuller manage to complete his opinion released this week? More than half of the 30 pages consist of his recitation of events in the trial. How did he come up with those events if he doesn't have a transcript? Does he have a spectacular memory? If his memory is so spectacular, why could he not remember that he is responsible for ensuring that a trial transcript is prepared in a timely manner? And if more than half of Fuller's opinion is based simply on his memory of events, how much stock should we put in it?
* We noted in our previous post on this subject, that only 14 pages of Fuller's 30-page opinion dealt with the questions posed by the U.S. 11th Circuit Court of Appeals. Of those 14 pages, almost six deal with the obstruction of justice charge against Siegelman. I've stated here many times that I am not a lawyer. But based on my legal research, obstruction of justice appears to be what I would call a "piggyback" charge in criminal law. In that regard, it seems to be similar to a charge of conspiracy. By definition, conspiracy cannot be charged without other charges being involved. And it seems that obstruction of justice, in the vast majority of cases, would only "ride along" with other, more fundamental, charges. My point is this: I don't think the jury in the Siegelman case would have gone for a guilty verdict on the obstruction of justice charge without also making a guilty finding on at least one of the more fundamental charges. For that reason, the obstruction of justice charge is somewhat extraneous, so I won't spend much time on Fuller's statements about that.
* The two fundamental charges in the Siegelman case were federal-funds bribery and honest-services mail fraud. And interestingly, Fuller uses barely two pages to address the two most important issues in the trial--that's two pages out of a 30-page memorandum. The memorandum is available here. Fuller's discussion of these critical subjects begins in the middle of page 27 and runs to the middle of page 29. Makes you think he doesn't want to talk about them much.
* And here is why Fuller probably does not want to talk much about federal-funds bribery or honest-services mail fraud. A close reading of Fuller's opinion suggests that the judge either does not know, or is intentionally misstating, the law on those two key charges. Fuller states that Siegelman's motion does not establish that a conviction under 18 U.S. Code 666 (bribery) or 18 U.S. Code 1346 (honest-services mail fraud) must be predicated on an explicit quid pro quo. I don't know the various cases Siegelman's lawyers cited in their motion. But there is no question that 11th Circuit precedent requires a quid pro quo for a bribery conviction. I don't have the first day of law school, and I was able to find that case law, so I feel certain Siegelman's attorneys were able to find it, too.
* The most recent 11th Circuit case on bribery appears to be U.S. v. McCarter, 219 Fed. Appx. 921 (2007). The McCarter opinion could not be more clear: "To prove a defendant is guilty of bribery, the government must prove there was "a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." The McCarter court cited U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, a well-known U.S. Supreme Court decision related to bribery from 1999.
* Did Fuller's jury instruction on bribery reflect this language? He claims that it did--sort of. He says the jury was "sufficiently apprised" of the quid quo pro requirement. Sufficiently apprised? What the heck does that mean? Either the jury received the language noted above--or language very similar to it--or it didn't. That's the law in the 11th Circuit, and we're not talking about a close call here. If Fuller's jury instruction did not pretty much mirror the language noted above, the conviction of Siegelman and Scrushy was based on trumped-up law. Of course, we could check the jury instruction if we had a trial transcript. But we don't, thanks largely to Fuller. Maybe he doesn't want the public to know what his jury instruction was, not when he can keep Siegelman and Scrushy languishing in prison for as long as possible.
* Even more troubling is the fact that Fuller ties bribery and honest-services mail fraud together in his statement regarding quid pro quo. Honest-services mail fraud has nothing to do with a quid pro quo, and a federal judge should know that. You can learn what mail fraud actually is here. At the heart of the offense is "a willful act by defendant with specific intent to deceive or cheat." It's hard to see how Siegelman committed an act to deceive or cheat by appointing Scrushy to a spot on the Certificate of Need (CON) Board, especially when Scrushy had served on the board under three other governors. And at least one of those governors, Republican Fob James, received a major campaign contribution from Scrushy.
* In the 14 pages relevant to 11th Circuit questions, Fuller makes one reference to honest-services mail fraud. It's the second most important charge in the indictment, and the judge makes one passing reference to it? Makes me think the government's case against Siegelman on this charge was incredibly weak, and Fuller either knows it or he simply hasn't bothered to educate himself on the relevant law.
* Let's get to the heart of the matter, the whole reason for Fuller's memorandum. On page 16, he lays out a four-pronged test for determining whether the defendants should be detained pending appeal. The four-pronged test is based on language from U.S. v. Giancola, 754 F. 2d 898 (11th Cir., 1985). Fuller and the government seem to concede that Siegelman meets the first two prongs--that he is not likely to flee or pose danger to the safety or others; and his appeal is not for purposes of delay. So it comes down to prongs 3 and 4: Does the appeal raise a substantial question of law or fact; and if that substantial question is determined favorably to the defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts.
* It's shockingly easy to answer the questions raised by prongs 3 and 4--and the answer is yes. And that means Siegelman and Scrushy, by law, must be released pending appeal. Why do I say it's easy to make this determination? Well, Fuller's own language makes it clear that he either doesn't know, or is intentionally misstating, the law related to the two most important charges--federal-funds bribery and honest-services mail fraud. As we've shown above, Fuller indicates that he is not aware that a bribery conviction requires a quid pro quo. And Fuller's own words indicate that he knows next to nothing about honest-services mail fraud. So we clearly have substantial questions of law because the judge himself has shown that he doesn't have much of a clue what the law really is
* And as for questions of fact: Without a transcript, there is a question about every fact in the case. In fact, without a transcript, there is a question about every element of law raised in the case. I've got a stump in my backyard that could get this right: Siegelman and Scrushy, by law, must be released pending appeal--and by law, they never should have been imprisoned in the first place. Will the 11th Circuit get it right? Don't hold your breath. My guess is that the 11th Circuit does not want to expose Judge Mark Fuller for the corrupt bozo that he is. Better that Siegelman and Scrushy unlawfully remain in prison rather than the public know what Mark Fuller really is all about.
* Methinks we are now understanding why Fuller waited so long in "answering" the 11th Circuit's queries. He has neither the facts nor the law on his side, so he is going into a stall--a legal version of the old "four corners" offense North Carolina used to employ in college basketball. Will the 11th Circuit, or perhaps Congress, force Fuller out of his stall by employing a serious full-court press? It's about time someone did.
* It's impossible to conduct a thorough analysis of Fuller's opinion without access to a trial transcript. We are forced to accept Fuller's version of events because we have no transcript to check against the judge's opinion. In fact, news comes today that the court reporter has been granted a second extension, until March 31, to complete the transcript. So that's almost another two months that Siegelman and Richard Scrushy must remain in prison because of the court's incompetence. And who is responsible for ensuring that a transcript is completed in a timely fashion? According to Scott Horton, of Harper's, it's Fuller himself.
* Here's a question for you: If no one has access to a transcript, how did Fuller manage to complete his opinion released this week? More than half of the 30 pages consist of his recitation of events in the trial. How did he come up with those events if he doesn't have a transcript? Does he have a spectacular memory? If his memory is so spectacular, why could he not remember that he is responsible for ensuring that a trial transcript is prepared in a timely manner? And if more than half of Fuller's opinion is based simply on his memory of events, how much stock should we put in it?
* We noted in our previous post on this subject, that only 14 pages of Fuller's 30-page opinion dealt with the questions posed by the U.S. 11th Circuit Court of Appeals. Of those 14 pages, almost six deal with the obstruction of justice charge against Siegelman. I've stated here many times that I am not a lawyer. But based on my legal research, obstruction of justice appears to be what I would call a "piggyback" charge in criminal law. In that regard, it seems to be similar to a charge of conspiracy. By definition, conspiracy cannot be charged without other charges being involved. And it seems that obstruction of justice, in the vast majority of cases, would only "ride along" with other, more fundamental, charges. My point is this: I don't think the jury in the Siegelman case would have gone for a guilty verdict on the obstruction of justice charge without also making a guilty finding on at least one of the more fundamental charges. For that reason, the obstruction of justice charge is somewhat extraneous, so I won't spend much time on Fuller's statements about that.
* The two fundamental charges in the Siegelman case were federal-funds bribery and honest-services mail fraud. And interestingly, Fuller uses barely two pages to address the two most important issues in the trial--that's two pages out of a 30-page memorandum. The memorandum is available here. Fuller's discussion of these critical subjects begins in the middle of page 27 and runs to the middle of page 29. Makes you think he doesn't want to talk about them much.
* And here is why Fuller probably does not want to talk much about federal-funds bribery or honest-services mail fraud. A close reading of Fuller's opinion suggests that the judge either does not know, or is intentionally misstating, the law on those two key charges. Fuller states that Siegelman's motion does not establish that a conviction under 18 U.S. Code 666 (bribery) or 18 U.S. Code 1346 (honest-services mail fraud) must be predicated on an explicit quid pro quo. I don't know the various cases Siegelman's lawyers cited in their motion. But there is no question that 11th Circuit precedent requires a quid pro quo for a bribery conviction. I don't have the first day of law school, and I was able to find that case law, so I feel certain Siegelman's attorneys were able to find it, too.
* The most recent 11th Circuit case on bribery appears to be U.S. v. McCarter, 219 Fed. Appx. 921 (2007). The McCarter opinion could not be more clear: "To prove a defendant is guilty of bribery, the government must prove there was "a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." The McCarter court cited U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, a well-known U.S. Supreme Court decision related to bribery from 1999.
* Did Fuller's jury instruction on bribery reflect this language? He claims that it did--sort of. He says the jury was "sufficiently apprised" of the quid quo pro requirement. Sufficiently apprised? What the heck does that mean? Either the jury received the language noted above--or language very similar to it--or it didn't. That's the law in the 11th Circuit, and we're not talking about a close call here. If Fuller's jury instruction did not pretty much mirror the language noted above, the conviction of Siegelman and Scrushy was based on trumped-up law. Of course, we could check the jury instruction if we had a trial transcript. But we don't, thanks largely to Fuller. Maybe he doesn't want the public to know what his jury instruction was, not when he can keep Siegelman and Scrushy languishing in prison for as long as possible.
* Even more troubling is the fact that Fuller ties bribery and honest-services mail fraud together in his statement regarding quid pro quo. Honest-services mail fraud has nothing to do with a quid pro quo, and a federal judge should know that. You can learn what mail fraud actually is here. At the heart of the offense is "a willful act by defendant with specific intent to deceive or cheat." It's hard to see how Siegelman committed an act to deceive or cheat by appointing Scrushy to a spot on the Certificate of Need (CON) Board, especially when Scrushy had served on the board under three other governors. And at least one of those governors, Republican Fob James, received a major campaign contribution from Scrushy.
* In the 14 pages relevant to 11th Circuit questions, Fuller makes one reference to honest-services mail fraud. It's the second most important charge in the indictment, and the judge makes one passing reference to it? Makes me think the government's case against Siegelman on this charge was incredibly weak, and Fuller either knows it or he simply hasn't bothered to educate himself on the relevant law.
* Let's get to the heart of the matter, the whole reason for Fuller's memorandum. On page 16, he lays out a four-pronged test for determining whether the defendants should be detained pending appeal. The four-pronged test is based on language from U.S. v. Giancola, 754 F. 2d 898 (11th Cir., 1985). Fuller and the government seem to concede that Siegelman meets the first two prongs--that he is not likely to flee or pose danger to the safety or others; and his appeal is not for purposes of delay. So it comes down to prongs 3 and 4: Does the appeal raise a substantial question of law or fact; and if that substantial question is determined favorably to the defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts.
* It's shockingly easy to answer the questions raised by prongs 3 and 4--and the answer is yes. And that means Siegelman and Scrushy, by law, must be released pending appeal. Why do I say it's easy to make this determination? Well, Fuller's own language makes it clear that he either doesn't know, or is intentionally misstating, the law related to the two most important charges--federal-funds bribery and honest-services mail fraud. As we've shown above, Fuller indicates that he is not aware that a bribery conviction requires a quid pro quo. And Fuller's own words indicate that he knows next to nothing about honest-services mail fraud. So we clearly have substantial questions of law because the judge himself has shown that he doesn't have much of a clue what the law really is
* And as for questions of fact: Without a transcript, there is a question about every fact in the case. In fact, without a transcript, there is a question about every element of law raised in the case. I've got a stump in my backyard that could get this right: Siegelman and Scrushy, by law, must be released pending appeal--and by law, they never should have been imprisoned in the first place. Will the 11th Circuit get it right? Don't hold your breath. My guess is that the 11th Circuit does not want to expose Judge Mark Fuller for the corrupt bozo that he is. Better that Siegelman and Scrushy unlawfully remain in prison rather than the public know what Mark Fuller really is all about.
* Methinks we are now understanding why Fuller waited so long in "answering" the 11th Circuit's queries. He has neither the facts nor the law on his side, so he is going into a stall--a legal version of the old "four corners" offense North Carolina used to employ in college basketball. Will the 11th Circuit, or perhaps Congress, force Fuller out of his stall by employing a serious full-court press? It's about time someone did.
Friday, January 4, 2008
The Great Bush Catastrophe
The first major step toward electing the next American president came yesterday, with Barack Obama and Mike Huckabee the big winners in the Iowa caucuses.
So perhaps it is a good time to ponder this question: Just how big a mess will our next president inherit? What will it be like to follow what is increasingly looking like the worst administration in American history?
Part of the answer to those questions came recently from one of the most profound stories I've seen in a long time. It has enormous implications for the future of our country, but I imagine only a small percentage of Americans read or understood it.
Legal Schnauzer readers will understand it. And for that, we can thank Scott Horton, of Harper's.
Horton reports on a speech by an obscure public official named David M. Walker, who is the comptroller general of the United States and head of the Government Accountability Office (GAO).
What did Mr. Walker have to say? "The federal government's fiscal exposures totaled approximately $53 trillion as of September 30, 2007, up more than $2 trillion from September 30, 2006, and an increase of more than $32 trillion from about $20 trillion as of September 30, 2000. This translates into a current burden of about $175,000 per American or approximately $455,000 per American household."
What does this say about the fiscal management of the George W. Bush administration? Let's allow Horton to put that into perspective: "The cost of this presidency, put in dollars and cents through today, is $32 trillion. That's a 150 percent increase in exposure since the reins of office were handed to George W. Bush."
Then Horton cuts directly to the heart of the matter: "It's as if a team of professional burglars were set loose with the tax code."
What kind of coverage did Walker's speech draw? Almost none. It appears that Horton came across it on a relatively obscure Web site. "Americans don't want to hear it," Horton says. "They'd rather be building up credit-card debt, not investments or savings."
The final word from Horton?
"If there is one single fault of the Bush-Cheney administration that will haunt it beyond all others, then it is this: They recognize no duty to posterity. They consume and squander shamelessly. And they mortgage the nation's future in the process."
How many Americans vote Republican because they think the party is fiscally responsible? The facts tell a different story.
I would correct Horton's assessment only slightly. He says this shameful fiscal record will haunt the Bushies. I doubt that; they don't care. I think it's more accurate to say their fiscal irresponsibility will haunt us--regular folks--for a long time to come.
So perhaps it is a good time to ponder this question: Just how big a mess will our next president inherit? What will it be like to follow what is increasingly looking like the worst administration in American history?
Part of the answer to those questions came recently from one of the most profound stories I've seen in a long time. It has enormous implications for the future of our country, but I imagine only a small percentage of Americans read or understood it.
Legal Schnauzer readers will understand it. And for that, we can thank Scott Horton, of Harper's.
Horton reports on a speech by an obscure public official named David M. Walker, who is the comptroller general of the United States and head of the Government Accountability Office (GAO).
What did Mr. Walker have to say? "The federal government's fiscal exposures totaled approximately $53 trillion as of September 30, 2007, up more than $2 trillion from September 30, 2006, and an increase of more than $32 trillion from about $20 trillion as of September 30, 2000. This translates into a current burden of about $175,000 per American or approximately $455,000 per American household."
What does this say about the fiscal management of the George W. Bush administration? Let's allow Horton to put that into perspective: "The cost of this presidency, put in dollars and cents through today, is $32 trillion. That's a 150 percent increase in exposure since the reins of office were handed to George W. Bush."
Then Horton cuts directly to the heart of the matter: "It's as if a team of professional burglars were set loose with the tax code."
What kind of coverage did Walker's speech draw? Almost none. It appears that Horton came across it on a relatively obscure Web site. "Americans don't want to hear it," Horton says. "They'd rather be building up credit-card debt, not investments or savings."
The final word from Horton?
"If there is one single fault of the Bush-Cheney administration that will haunt it beyond all others, then it is this: They recognize no duty to posterity. They consume and squander shamelessly. And they mortgage the nation's future in the process."
How many Americans vote Republican because they think the party is fiscally responsible? The facts tell a different story.
I would correct Horton's assessment only slightly. He says this shameful fiscal record will haunt the Bushies. I doubt that; they don't care. I think it's more accurate to say their fiscal irresponsibility will haunt us--regular folks--for a long time to come.
Thursday, January 3, 2008
Checking Out the Mark Fuller Shuffle
U.S. District Judge Mark Fuller finally has gotten around to "explaining" his reasons for refusing to release former Alabama Governor Don Siegelman pending an appeal.
Fuller's 30-page opinion can be read in its entirety. What exactly does it say? Well, I've read it, but I've not had a chance to fully digest it. But here are some early impressions:
* Thirty pages makes it sound like this is a serious document. But more than half of that is Fuller regurgitating his version of the facts in the case. Fewer than 14 pages are devoted to addressing the questions he was asked by the 11th Circuit Court of Appeals.
* Fuller states that in the 1998 gubernatorial election, Richard Scrushy supported Siegelman's Republican opponent, Fob James, and donated $350,000 to the James campaign. It has been reported in numerous places on the Web that Scrushy served on the Certificate of Need (CON) Board under James, just as he did under Siegelman. Fuller himself reports that Scrushy gave money to the James campaign, just as he gave money to a Siegelman campaign. Which raises this obvious question: Why was Fob James not investigated and prosecuted on corruption problems, as Siegelman was? Does Fuller ask or answer this question in his memorandum opinion? Not on your life.
* Fuller's opinion reminds me of Rob Riley's affidavit filed with the U.S. House Judiciary Committee, the one regarding whistleblower Jill Simpson. Both documents are filled with "hedge" language. "In this Court's view" seems to be a Fuller favorite, and it seems to indicate when he knows he's walking on shaky legal footing.
* Fuller is on his shakiest footing when he discusses Siegelman's argument that a bribery conviction must be predicated on an explicit quid pro quo. "In this Court's view, Siegelman's argument overstated or mischaracterized the holdings of the cases on which he relied," Fuller writes. This section is full of "hedge language," but Fuller seems to be saying that federal bribery law under 18 U.S. Code 666 does not require a quid pro quo. And the fact is this: Federal bribery law most definitely does require a quid pro quo, specifically in the 11th Circuit (which includes Alabama).
The most recent 11th Circuit case I could find was U.S. v. McCarter, which was handed down on March 9, 2007. McCarter makes it abundantly clear that a quid pro quo is required.
In his best "hedge language," Fuller gives the impression that he gave a muddled jury instruction on this issue--when, by law, there should have been nothing muddled about it. Fuller claims the jury was "sufficiently apprised" of the quid pro quo requirement. But he does not tell us what his jury instruction was. Hmmm, wonder why that is.
Of course, we've written about this trick before--regarding U.S. District Judge Henry Wingate, who oversaw the Paul Minor trial in Mississippi.
Fuller's 30-page opinion can be read in its entirety. What exactly does it say? Well, I've read it, but I've not had a chance to fully digest it. But here are some early impressions:
* Thirty pages makes it sound like this is a serious document. But more than half of that is Fuller regurgitating his version of the facts in the case. Fewer than 14 pages are devoted to addressing the questions he was asked by the 11th Circuit Court of Appeals.
* Fuller states that in the 1998 gubernatorial election, Richard Scrushy supported Siegelman's Republican opponent, Fob James, and donated $350,000 to the James campaign. It has been reported in numerous places on the Web that Scrushy served on the Certificate of Need (CON) Board under James, just as he did under Siegelman. Fuller himself reports that Scrushy gave money to the James campaign, just as he gave money to a Siegelman campaign. Which raises this obvious question: Why was Fob James not investigated and prosecuted on corruption problems, as Siegelman was? Does Fuller ask or answer this question in his memorandum opinion? Not on your life.
* Fuller's opinion reminds me of Rob Riley's affidavit filed with the U.S. House Judiciary Committee, the one regarding whistleblower Jill Simpson. Both documents are filled with "hedge" language. "In this Court's view" seems to be a Fuller favorite, and it seems to indicate when he knows he's walking on shaky legal footing.
* Fuller is on his shakiest footing when he discusses Siegelman's argument that a bribery conviction must be predicated on an explicit quid pro quo. "In this Court's view, Siegelman's argument overstated or mischaracterized the holdings of the cases on which he relied," Fuller writes. This section is full of "hedge language," but Fuller seems to be saying that federal bribery law under 18 U.S. Code 666 does not require a quid pro quo. And the fact is this: Federal bribery law most definitely does require a quid pro quo, specifically in the 11th Circuit (which includes Alabama).
The most recent 11th Circuit case I could find was U.S. v. McCarter, which was handed down on March 9, 2007. McCarter makes it abundantly clear that a quid pro quo is required.
In his best "hedge language," Fuller gives the impression that he gave a muddled jury instruction on this issue--when, by law, there should have been nothing muddled about it. Fuller claims the jury was "sufficiently apprised" of the quid pro quo requirement. But he does not tell us what his jury instruction was. Hmmm, wonder why that is.
Of course, we've written about this trick before--regarding U.S. District Judge Henry Wingate, who oversaw the Paul Minor trial in Mississippi.
Rappin' on Riley
Who Needs $3.6 Billion?
How's this for irony? A few weeks ago, the Alabama Supreme Court threw out most of a jury verdict in favor of the state and against oil giant ExxonMobil. The case had to do with underpayment of natural-gas royalties, which the facts and law showed ExxonMobil was doing in a fraudulent manner.
Price tag of the Supreme Court's decision for Alabama citizens? A mere $3.6 billion. But Governor Bob Riley did not think it was important enough to even file an application for rehearing. His spokesman said the governor felt an effort to seek rehearing would be futile given the vote of eight Republicans for Exxon and one Democrat for the people of Alabama.
But we know the real reason Riley did not want to go for rehearing. The Supreme Court's ruling was so blatantly unlawful that any halfway honest brief supporting the application for rehearing would have made it clear to citizens just how badly they had been screwed. Riley did not want to blow the cover of his Republican colleagues on Alabama's high court. Our corporate-owned governor was protecting our corporate-owned appellate courts.
So guess who now is looking at dealing with a major shortfall in his upcoming state budget? None other than Governor Riley himself. We learn today that slower economic growth could lead to a drop in state education spending of perhaps $300 million in fiscal year 2009, which starts Oct. 1.
Now get this: Riley staff members are talking about making up for the shortfall by diverting natural-gas royalties paid by companies that pump gas from offshore--companies like ExxonMobil. The diverted royalties could help pay for education, Medicaid, and other services.
And here's more irony: Most of Alabama's natural-gas royalties, 64.35 percent to be exact, go to the Alabama Trust Fund, which state voters approved more than two decades ago. The fund is described as a "giant savings account for the state" and currently has $3.2 billion in stocks, bonds, and other assets.
Hmmm, $3.2 billion. Where have I heard that figure before?
Seems that Alabama's giant savings account would soon be doubling if not for the Alabama Supreme Court's unlawful ruling--the one Riley says we should not bother trying to have reheard.
It's not breaking news that Alabama politicians are shortsighted and corrupt. But it's time Alabama citizens take their share of the blame, too. It's also time a few more of us pulled our collective heads out of dark crevices and realized what happens when we mindlessly elect corporate cronies to run our state.
Alabamians, you can't have it both ways. One on the one hand, you always vote down any tax hike, and you tend to vote for any politician who claims he is going to cut taxes. But on the other hand, you also vote for corporate-owned judges who say it's OK for companies to defraud the state out of what little money it does have.
That's no way to run any enterprise, and Alabamians certainly would not stand for having their major-college football programs run that way.
Campaign-Finance Story Finds Its MoJo
Major news outlets in Alabama steadfastly ignore the story of Governor Bob Riley possibly violating state campaign-finance laws in 2002 and 2006.
But those doggone bloggers just won't let the story die. Left in Alabama reports that the MoJo Blog, at Mother Jones, has picked up on the story.
"This is hardly the first time that the words 'Riley' and 'election' have appeared together in a suspicious way," writes MoJo's Diane E. Dees. "Karl Rove is alleged to have been involved in the 2002 Alabama election, when GOP consultant Bill Canary, an advisor to Riley, worked with Rove to bring Governor Don Siegelman to prison on ethics charges."
And Left in Alabama makes a splendid point:
"So far the print big dogs are sticking with the Riley machine and saying absolutely nothing about this story. That's OK, but if they're going to cherry pick stories to keep their friends happy, the papers should quit the $%#* complaining about declining circulation and how those unprofessional bloggers are just ruining journalism."
Ruining journalism, my fanny. The big papers have exactly the dismal circulation numbers they deserve.
How's this for irony? A few weeks ago, the Alabama Supreme Court threw out most of a jury verdict in favor of the state and against oil giant ExxonMobil. The case had to do with underpayment of natural-gas royalties, which the facts and law showed ExxonMobil was doing in a fraudulent manner.
Price tag of the Supreme Court's decision for Alabama citizens? A mere $3.6 billion. But Governor Bob Riley did not think it was important enough to even file an application for rehearing. His spokesman said the governor felt an effort to seek rehearing would be futile given the vote of eight Republicans for Exxon and one Democrat for the people of Alabama.
But we know the real reason Riley did not want to go for rehearing. The Supreme Court's ruling was so blatantly unlawful that any halfway honest brief supporting the application for rehearing would have made it clear to citizens just how badly they had been screwed. Riley did not want to blow the cover of his Republican colleagues on Alabama's high court. Our corporate-owned governor was protecting our corporate-owned appellate courts.
So guess who now is looking at dealing with a major shortfall in his upcoming state budget? None other than Governor Riley himself. We learn today that slower economic growth could lead to a drop in state education spending of perhaps $300 million in fiscal year 2009, which starts Oct. 1.
Now get this: Riley staff members are talking about making up for the shortfall by diverting natural-gas royalties paid by companies that pump gas from offshore--companies like ExxonMobil. The diverted royalties could help pay for education, Medicaid, and other services.
And here's more irony: Most of Alabama's natural-gas royalties, 64.35 percent to be exact, go to the Alabama Trust Fund, which state voters approved more than two decades ago. The fund is described as a "giant savings account for the state" and currently has $3.2 billion in stocks, bonds, and other assets.
Hmmm, $3.2 billion. Where have I heard that figure before?
Seems that Alabama's giant savings account would soon be doubling if not for the Alabama Supreme Court's unlawful ruling--the one Riley says we should not bother trying to have reheard.
It's not breaking news that Alabama politicians are shortsighted and corrupt. But it's time Alabama citizens take their share of the blame, too. It's also time a few more of us pulled our collective heads out of dark crevices and realized what happens when we mindlessly elect corporate cronies to run our state.
Alabamians, you can't have it both ways. One on the one hand, you always vote down any tax hike, and you tend to vote for any politician who claims he is going to cut taxes. But on the other hand, you also vote for corporate-owned judges who say it's OK for companies to defraud the state out of what little money it does have.
That's no way to run any enterprise, and Alabamians certainly would not stand for having their major-college football programs run that way.
Campaign-Finance Story Finds Its MoJo
Major news outlets in Alabama steadfastly ignore the story of Governor Bob Riley possibly violating state campaign-finance laws in 2002 and 2006.
But those doggone bloggers just won't let the story die. Left in Alabama reports that the MoJo Blog, at Mother Jones, has picked up on the story.
"This is hardly the first time that the words 'Riley' and 'election' have appeared together in a suspicious way," writes MoJo's Diane E. Dees. "Karl Rove is alleged to have been involved in the 2002 Alabama election, when GOP consultant Bill Canary, an advisor to Riley, worked with Rove to bring Governor Don Siegelman to prison on ethics charges."
And Left in Alabama makes a splendid point:
"So far the print big dogs are sticking with the Riley machine and saying absolutely nothing about this story. That's OK, but if they're going to cherry pick stories to keep their friends happy, the papers should quit the $%#* complaining about declining circulation and how those unprofessional bloggers are just ruining journalism."
Ruining journalism, my fanny. The big papers have exactly the dismal circulation numbers they deserve.
Wednesday, January 2, 2008
A Schnauzer Spy Story, Part III
Let's return to our "A Schnauzer Spy Story" series. In part I, we noted that I don't have all the facts nailed down in this tale of intrigue, so I will write about it in somewhat theoretical terms. But events very similar to this, have happened to your humble blogger. And we have shown that events in your personal life can have possible connections to events in a legal case. In part II, we went into details about strange things that can begin happening in your life, possibly as the result of conflict with officials in the justice system.
Now, we will show how people in power can abuse regular citizens and violate privacy laws. What tools are at their disposal? We've asked you to walk in my shoes, and my wife's shoes, to see what you would think if events like these happened to you. Let's pick up our story . . .
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Most law-abiding Americans give little, if any, thought to the notion that someone might be conducting illegal surveillance on their telephones. But that's the first thing you and your wife think of when you both had the idea that someone might be interfering with her efforts to get a job.
You conduct some research, and here's what you find: It would be unbelievably easy for someone to track your phone calls, particularly if that person is, or has ties to, a judge.
What would such a person use? Probably a pen register or a trap and trace device. A pen register tracks all outgoing calls from a certain telephone number. A trap and trace device tracks all incoming calls to a certain telephone number.
The use of these devices by law enforcement is governed by the Electronic Communications Privacy Act. And how might someone in law enforcement be able to use such a device against a private citizen, such as yourself?
Why, by getting a court order--from a judge.
So you ask yourself, "Who would want to track my communications? Have I ticked off anyone lately?" Then the answer hits you--a judge!
Now, we will show how people in power can abuse regular citizens and violate privacy laws. What tools are at their disposal? We've asked you to walk in my shoes, and my wife's shoes, to see what you would think if events like these happened to you. Let's pick up our story . . .
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Most law-abiding Americans give little, if any, thought to the notion that someone might be conducting illegal surveillance on their telephones. But that's the first thing you and your wife think of when you both had the idea that someone might be interfering with her efforts to get a job.
You conduct some research, and here's what you find: It would be unbelievably easy for someone to track your phone calls, particularly if that person is, or has ties to, a judge.
What would such a person use? Probably a pen register or a trap and trace device. A pen register tracks all outgoing calls from a certain telephone number. A trap and trace device tracks all incoming calls to a certain telephone number.
The use of these devices by law enforcement is governed by the Electronic Communications Privacy Act. And how might someone in law enforcement be able to use such a device against a private citizen, such as yourself?
Why, by getting a court order--from a judge.
So you ask yourself, "Who would want to track my communications? Have I ticked off anyone lately?" Then the answer hits you--a judge!
What would keep a judge from abusing his powers to order surveillance? What would prevent a judge from violating privacy law in order to punish a litigant he considers troublesome? Nothing, that you can see, other than the judge's conscience--and perhaps the fear of getting caught.
But what if the judges has already shown he has a seriously diseased conscience? And what if the judge appears to have little fear of ever being caught?
(To be continued)
My Disjointed Blog--And Other Thoughts
Since we began this blog almost seven months ago, it would be fair to say that we've been all over the map. More than one reader has suggested, using gentle language, that the blog is, shall we say, disjointed.
One reader, in a comment at another blog, said the Schnauzer is useful but "confused." (I tried pondering that thought, but wound up being confused.)
Actually, I can't disagree with that assessment, and I find it ironic. A real-life schnauzer is one of the least confused creatures on the planet. One of the many reasons my wife and I loved our miniature schnauzer, Murphy, so much is that she seemed to wake up every day with this wonderful sense of purpose. She didn't go off on tangents or get her mind mixed up by going off in all directions. There were certain things she was put on this earth to do, and by God, she was going to do them. At least that's how it seemed to us.
As for this blog, I'm going to keep pondering ways to make it easier to follow. Blogs, by their nature, tend to be choppy, and that might be part of the problem. Not sure a blog is the best way to tell my personal tale of legal intrigue, and I plan someday in the not-too-distant future to tell it all in one place. Just trying to figure out the best locale and format.
But from the outset, I've wanted this endeavor to be about more than just my story. The goal is to help educate regular folks about the dangers that lurk in our courtrooms. And to shine a light on the corruption that has gripped our justice system at both the state and federal level.
We've tried to do that by focusing primarily on three cases--the Don Siegelman case in Alabama, the Paul Minor case in Mississippi, and my own saga (which has come to be known as the Legal Schnauzer case).
Now that we've passed the six-month mark in blog years, we will be getting into heavy details about my case. The Siegelman and Minor cases are critically important to the overall story of the corrupt Bush Justice Department. But they involve folks of substantial power and/or wealth, so it might be hard for many people to relate to them. Most of us, after all, are never likely to be charged with giving or taking a bribe or committing honest-services mail fraud.
The Schnauzer case, on the other hand, involves regular folks--my wife and me. And it's the kind of legal problem that could happen to anybody. If you have anything worthwhile in your life--a marriage, a home, real or personal property, a job, children--it can be the source of a legal problem. And you can wind up in court, the victim of a lawsuit, whether you did anything wrong or not.
Here's one of the major lessons I hope to get across here: In our country, you can be sued for anything, by anybody. If you pass someone by without saying hello, they can sue you for causing them emotional distress. Doesn't mean they will win. But there is no bar that a plaintiff must reach in order to be able to file a lawsuit. It's an open market.
If you can write out some alleged wrong and sign your name on a piece of paper, and pay the filing fee, you can sue someone. Our system has "safeguards" that are supposed to punish someone for filing a bogus lawsuit. But from what I see, they are hardly ever enforced and they have zero deterrent effect.
I'm sure I will go off on tangents in the future. Posting occasionally about Birmingham's American Idol Taylor Hicks, and hearing from the Soul Patrol, is proving to be a great kick. And since my wife and I enjoy his music, I hope to continue posting about our guy Taylor--and perhaps other musicians I have found inspiring over the years.
But I will do my best to keep things flowing. And the plan is to have the Legal Schnauzer story all in one place someday.
As my wife and I rang in the new year, we decided that 2007, in many ways, was the Year of the Blog, for us. This time a year ago I never would have dreamed that I would be writing a blog. It just didn't seem like something I would do. In fact, if I didn't have three coworkers who have blogs and/or Web sites, I don't think I ever would have thought of it.
If someone had told me a year ago that someone of Scott Horton's stature--a Columbia University law professor, for crying out loud--would be citing my justice-related reporting in a national publication, I would have thought that impossible. If someone had said that my justice-related reporting would be cited in documents filed with the U.S. House Judiciary Committee, I would have thought that absurd.
But those things have happened. And it goes to show the power of this relatively young communications instrument we call the blog. I once thought blogging seemed like a waste of time. I now know differently.
Also, I've made a number of e-friends, people whose thoughts and feelings I value greatly. I hope to meet them in person someday. Some, like me, have suffered under our corrupt system of justice. A few have suffered injustices that are so deep as to almost be beyond understanding.
I pray that they will find strength in the coming days, and that they will eventually be vindicated. I also pray that those who have corrupted our justice system will be held accountable.
Blogging has not been an entirely sweet experience. I've received numerous angry and uncomplimentary comments. One or two have bordered on being threatening.
I know my work is being read in the legal community, in multiple states. I also know it is being read in the halls of power. I imagine some people are pleased to read it. I'm certain a number of people are not.
I would not be surprised if some folks are threatened by it. And they should be. Because deep down, they know this blog is grounded in fact. They know it is based in truth. And truth is the first step on the road to justice.
Thanks for joining us on the ride.
One reader, in a comment at another blog, said the Schnauzer is useful but "confused." (I tried pondering that thought, but wound up being confused.)
Actually, I can't disagree with that assessment, and I find it ironic. A real-life schnauzer is one of the least confused creatures on the planet. One of the many reasons my wife and I loved our miniature schnauzer, Murphy, so much is that she seemed to wake up every day with this wonderful sense of purpose. She didn't go off on tangents or get her mind mixed up by going off in all directions. There were certain things she was put on this earth to do, and by God, she was going to do them. At least that's how it seemed to us.
As for this blog, I'm going to keep pondering ways to make it easier to follow. Blogs, by their nature, tend to be choppy, and that might be part of the problem. Not sure a blog is the best way to tell my personal tale of legal intrigue, and I plan someday in the not-too-distant future to tell it all in one place. Just trying to figure out the best locale and format.
But from the outset, I've wanted this endeavor to be about more than just my story. The goal is to help educate regular folks about the dangers that lurk in our courtrooms. And to shine a light on the corruption that has gripped our justice system at both the state and federal level.
We've tried to do that by focusing primarily on three cases--the Don Siegelman case in Alabama, the Paul Minor case in Mississippi, and my own saga (which has come to be known as the Legal Schnauzer case).
Now that we've passed the six-month mark in blog years, we will be getting into heavy details about my case. The Siegelman and Minor cases are critically important to the overall story of the corrupt Bush Justice Department. But they involve folks of substantial power and/or wealth, so it might be hard for many people to relate to them. Most of us, after all, are never likely to be charged with giving or taking a bribe or committing honest-services mail fraud.
The Schnauzer case, on the other hand, involves regular folks--my wife and me. And it's the kind of legal problem that could happen to anybody. If you have anything worthwhile in your life--a marriage, a home, real or personal property, a job, children--it can be the source of a legal problem. And you can wind up in court, the victim of a lawsuit, whether you did anything wrong or not.
Here's one of the major lessons I hope to get across here: In our country, you can be sued for anything, by anybody. If you pass someone by without saying hello, they can sue you for causing them emotional distress. Doesn't mean they will win. But there is no bar that a plaintiff must reach in order to be able to file a lawsuit. It's an open market.
If you can write out some alleged wrong and sign your name on a piece of paper, and pay the filing fee, you can sue someone. Our system has "safeguards" that are supposed to punish someone for filing a bogus lawsuit. But from what I see, they are hardly ever enforced and they have zero deterrent effect.
I'm sure I will go off on tangents in the future. Posting occasionally about Birmingham's American Idol Taylor Hicks, and hearing from the Soul Patrol, is proving to be a great kick. And since my wife and I enjoy his music, I hope to continue posting about our guy Taylor--and perhaps other musicians I have found inspiring over the years.
But I will do my best to keep things flowing. And the plan is to have the Legal Schnauzer story all in one place someday.
As my wife and I rang in the new year, we decided that 2007, in many ways, was the Year of the Blog, for us. This time a year ago I never would have dreamed that I would be writing a blog. It just didn't seem like something I would do. In fact, if I didn't have three coworkers who have blogs and/or Web sites, I don't think I ever would have thought of it.
If someone had told me a year ago that someone of Scott Horton's stature--a Columbia University law professor, for crying out loud--would be citing my justice-related reporting in a national publication, I would have thought that impossible. If someone had said that my justice-related reporting would be cited in documents filed with the U.S. House Judiciary Committee, I would have thought that absurd.
But those things have happened. And it goes to show the power of this relatively young communications instrument we call the blog. I once thought blogging seemed like a waste of time. I now know differently.
Also, I've made a number of e-friends, people whose thoughts and feelings I value greatly. I hope to meet them in person someday. Some, like me, have suffered under our corrupt system of justice. A few have suffered injustices that are so deep as to almost be beyond understanding.
I pray that they will find strength in the coming days, and that they will eventually be vindicated. I also pray that those who have corrupted our justice system will be held accountable.
Blogging has not been an entirely sweet experience. I've received numerous angry and uncomplimentary comments. One or two have bordered on being threatening.
I know my work is being read in the legal community, in multiple states. I also know it is being read in the halls of power. I imagine some people are pleased to read it. I'm certain a number of people are not.
I would not be surprised if some folks are threatened by it. And they should be. Because deep down, they know this blog is grounded in fact. They know it is based in truth. And truth is the first step on the road to justice.
Thanks for joining us on the ride.
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