The top government witness in the 2006 federal conviction of former Alabama Gov. Don Siegelman on corruption charges is providing new evidence that prosecutors failed to fulfill their legal obligation to provide the defense with all records documenting witness-coaching.
Former Siegelman aide Nick Bailey swears that prosecutors failed to reveal to the defense details of most of his two dozen prep sessions before he became the Bush Justice Department's key witness that former HealthSouth chief executive Richard Scrushy bribed the former Democratic governor. Scrushy arranged $500,000 in donations to an education non-profit fostered by Siegelman to increase school funding. At trial, Bailey suggested the donations were required by Siegelman to reappoint Scrushy to a state regulatory board. The defendants, bolstered by legal experts and whistleblowers, claim that they were framed to eliminate Siegelman from politics.
Even more explosive than an alleged failure by prosecutors to comply with federal trial procedures is a sworn statement by Bailey's current employer Luther "Stan" Pate, another Alabama businessman.
"Nick was told that the government was working to prevent the publicizing of an alleged sexual relationship between Nick and Don Siegelman," Pate wrote. "Nick also told me that one of the agents working the Siegelman/Scrushy prosecution asked him whether he had ever taken illegal drugs with Governor Siegelman or had a sexual relationship with him. These comments had a dramatic effect on Nick, and, in my observation, added significantly to the pressure he felt to go along with whatever the prosecutors wanted him to say."
Allegations of sexual blackmail by the government are among the evidentiary exhibits that support legal arguments by Scrushy and Siegelman seeking a new trial based on new evidence from whistleblowers and investigative reporters.
The filings, reviewed July 20 but filed late June 26, include a report by the Investigative Group International (IGI), which some nickname "The President's Investigator." This is because IGI Chairman Terry Lenzner was a Watergate prosecutor of former President Nixon and later helped defend former President Clinton during impeachment. IGI says that it was hired in April "by counsel for the defense."
IGI Vice Chairman David Richardson's affidavit said that Bailey told him and Lenzner during meetings in June that Bailey "did not believe that Governor Siegelman had been bribed by Mr. Scrushy," among other contradictions of Bailey's themes during Siegelman's second trial. Bailey, now free after being sentenced to 18 months in prison on bribery charges unrelated to Siegelman, had been facing a far longer term before he agreed to cooperate with prosecutors against Siegelman.
Pate wrote in his affidavit that he befriended Bailey after the former governor's aide told him in the spring of 2002 that "he was in trouble with the law."
"It was obvious to me that he was a man in trouble with heavy burdens," Pate wrote in his affidavit. "I believe in giving people second chances" but "would not condone any breaking or bending of any laws or rules whatsoever..." Pate said Bailey's office was next to his, and that he observed Bailey on "an emotional roller-coaster" trying to please prosecutors. He said that Bailey feared for his safety both in and out of prison, as well as for the security of his friends and their reputations.
Bailey said in his affidavit that he was brought to Maxwell Air Force Base in Alabama in 2004 some two years after he began cooperating, and was told there by federal prosecutor and Air Force Reserve Col. Stephen Feaga that the government was "starting over" on the Siegelman investigation on the basis of orders from "Washington."
In 2007, allegations of massive irregularities in the investigation and trial of the Siegelman case became nationally prominent just after the U.S. attorney firing scandal. This was because Alabama attorney and Republican campaign volunteer Dana Jill Simpson filed an affidavit with Siegelman's sentencing judge, Chief U.S. District Judge Mark E. Fuller of Montgomery. In her sworn statement and in her testimony before the House Judiciary Committee staff, Simpson claimed that fellow Alabama Republicans conspired to remove Siegelman from politics in coordination with what she understood to be White House political strategist Karl Rove and a federal judge who "hated" Siegelman. Rove has denied wrongdoing to the news media. His responses to congressional investigators this month are not yet public.
In February 2008, a CBS 60 Minutes segment featured former Arizona Attorney Gen. Grant Woods, a Republican then co-chairing John McCain's 2008 GOP Presidential Campaign. Woods said the federal prosecution was clearly political to remove a Democrat from public life. In the show, the then-imprisoned Bailey first made his allegations that he had been coached to provide testimony against the defendants without the required disclosure.
Government officials have maintained throughout the case so far that their conduct has complied with legal and ethical requirements. No officials were available near close of business on July 20 to comment on the allegations by the co-defendants, each of whom is under a seven year prison sentence, with massive fines. Siegelman is free on bond.
Prosecutors recently asked for a 20 year sentence for Siegelman, 63, upon resentencing by Fuller, who is alleged by the co-defendants to have tolerated prosecution misconduct. Scrushy, 56, is serving his sentence while claiming that he was framed to imprison Siegelman. Scrushy says also that he refused lighten his own sentence by making false accusations against Siegelman.
Events are coming to a head. Fuller has called for final briefs by next week amidst a growing nationwide campaign by grassroots activists and legal experts critical of the prosecution. But an all-Republican federal appeals court panel affirmed the convictions in March, aside from dismissing two of seven charges against Siegelman for lack of evidence. The predominately Republican full court of appeals denied a rehearing.
Huffington Post has published several recent investigative reports on the case. One by me on May 15 was entitled, "Siegelman Deserves New Trial Because of Judge's 'Grudge', Evidence Shows....$300 Million in Bush Military Contracts Awarded to Judge's Private Company." The article alleged conflicts of interest by Fuller, who was named to preside over Siegelman's second trial in Montgomery after the government dropped corruption charges in an earlier trial in 2004 before Chief U.S. District Judge U.W. Clemon of Birmingham.
Fuller was a Republican leader in Alabama and CEO of the Air Force contractor Doss Aviation Inc. before his 2002 appointment to the bench. Fuller has said he's the victim of political criticism, has ruled that he has acted fairly at all times and last month wrote me that his judicial role prevents him from commenting on specifics. The Justice Department has argued that not one reasonable person in the U.S. would question Fuller's fairness.
After retirement this year, Clemon wrote U.S. Attorney Gen. Eric Holder that the 2004 case against Siegelman was the most unfounded that he'd observed in his nearly 30 year judicial career, and that prosecutors engaged in judge-shopping to steer the case away from him and toward Alabama's Montgomery-based Middle District.
On June 26 at the National Press Club, Clemon amplified his observations during a three hour conference about allegations of selective prosecutions by the Justice Department nationally under the Bush Administration. Among the suspicious elements of Siegelman's prosecution that Clemon cited were changes in Bailey's testimony between the first and second trials. In nationwide cablecasts, C-SPAN provided video coverage here of the judge's remarks and 12 other speakers, including me.
On June 1, Justice Department paralegal Tamarah Grimes followed up her 2007 criticisms of the prosecution by writing a nine-page letter to the Attorney General. A Republican, she had served as the government's top in-house paralegal during the Siegelman/Scrushy prosecution, although she not was not part of the team attending court.
The Justice Department fired her on June 9 after alleging that she made secret tape recordings about her allegations. She has denied making tape recordings, protested what she regards as punitive attempts to indict her on false charges, and is seeking a hearing before House Judiciary Committee officials who have been unsuccessful since last year in asking the Justice Department to respond to her allegations. The Justice Department has said she deserved to be fired, and it will not comment further for privacy reasons.
Among those contacted for comment late today for this story without success were Alabama's Middle District U.S. Attorney Leura Canary and Acting U.S. Attorney Louis Franklin. Franklin was designated to supervise the Siegelman case in coordination with Washington officials because Canary's husband William Canary was a longtime political foe of Siegelman. Among claims by Grimes was that Leura Canary remained in charge of the Siegelman prosecution, leading an all-out effort to secure and maintain convictions.
At this point, it might be helpful if I morph from a hard-news reporter (as I was for five years covering the Justice Department fulltime for the Hartford Courant) into an opinion commentator, who has covered this story and its parallels elsewhere around the U.S. for eight months.
First, shame on me for missing these explosive affidavits until now. The affidivaits were docketed three weeks ago as part of the thick defense filings that I read and posted on my website. But I failed to dig a step further into the evidence. Those of us who are Web-based journalists commonly dis the mainstream media (aside from scattered exceptions such as the New York Times ) for failing to cover the Siegelman/Scrushy prosecution with any depth. But this time delay is a reminder that everyone is vulnerable, and that many other stories are doubtless being overlooked.
Second, these allegations of sexual improprieties have been well-known for years by Alabama reporters, sources and outside national investigators, as have many similar claims of sex sandals involving other prominent officials in both parties in the state. That little of it has come out until now should not be construed, in my opinion, to mean that this is a unique situation.
Far from it. Such situations flourish because of the political and journalistic traditions that news of this sort is suitable for insider bargaining and other leverage, not for the public. Powerful people and their organizations collect this kind of rumor and any relevant evidence like kids collect baseball cards. But it's rarely shared. This is partly because of what military strategists might call "mutually assured destruction." Partly, it's because blackmail (or what might be called "protection" in more polite circles) loses its power if too widely disclosed.
But the rules are changing at this particular juncture in the Siegelman/Scrushy case. As the endgame approaches, the stakes include prison for defendants, or the possibility of career disgrace or worse for those in authority. In case you're wondering, it's not simply bad manners if authorities frame suspects, send them to prison, and impoverish their families.
The gloves are off. Expect to hear much more about this case in the national media over the next few weeks, with 60 Minutes again working to stay in the lead. Whistleblowers like Tamarah Grimes, Jill Simpson and others have created an extraordinary drama inspiring many other defendants in such cases across the country, as well as their families. These include such Republicans as twice-acquitted former Mississippi Supreme Court Justice Oliver Diaz. These defendants increasingly argue that their prosecutions were political, as Diaz did during his eloquent remarks June 26 at the National Press Club and preserved by C-SPAN.
Part of the drama over the next few weeks in the Siegelman case will be whether the presiding judge Fuller gets out of it quickly by either recusal or by blaming prosecutors for misconduct. Alternatively, he and the Justice Department could continue to stand tough, admitting no error. Up to now, they've argued that the public need be concerned only about crimes by Siegelman and Scrushy that deserve long prison time, and no mercy. In 2007, Fuller had the defendants hauled off to prison in shackles in front of news photographers, with Siegelman put in solitary confinement for good measure.
Think about it. You might not want to be Don Siegelman today. But would you like to be one of those who led his prosecution?