One of the most experienced federal judges in recent Alabama history is denouncing the U.S. Justice Department prosecution of former Alabama Gov. Don Siegelman. Retired Chief U.S. District Judge U.W. Clemon of Birmingham calls for a probe of misconduct by federal prosecutors ─ including their alleged "judge-shopping," jury-pool "poisoning" and "unfounded" criminal charges in an effort to imprison Siegelman.
The Siegelman prosecution by the Bush Administration Justice Department is one of the most controversial U.S. criminal cases of the decade because of claims that Republican political appointees ─ sometimes using career prosecutors as public surrogates ─ unfairly targeted the Democratic defendant to prevent his re-election in 2006 as governor.
"The 2004 prosecution of Mr. Siegelman in the Northern District of Alabama was the most unfounded criminal case over which I presided in my entire judicial career," Clemon wrote U.S. Attorney General Eric H. Holder last week. "In my judgment, his prosecution was completely without legal merit; and it could not have been accomplished without the approval of the Department of Justice."
The remarkable letter by Clemon requests that that Holder investigate misconduct by federal prosecutors arising from Siegelman's 2004 trial on bribery-related charges. Clemon oversaw that trial until prosecutors dropped the case. Prosecutors then shifted their effort against Siegelman to a different Alabama federal district. Prosecutors obtained Chief U.S. District Judge Mark E. Fuller of Montgomery to preside over the former governor's trial. Fuller hated Siegelman because of his role in appointing an investigator for scandals arising from the judge's controlling interest in the military contractor Doss Aviation, according to on-the-record sources cited in my Huffington Post article published May 15.
Meanwhile this week, protests against the federal court system's treatment of Siegelman escalated on other fronts following the article, which 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 revealed new evidence from such sources as Missouri attorney Paul B. Weeks, who obtained Fuller's recusal from a civil case in 2003 on the grounds that Fuller lacked the ethics needed to preside as judge. During a conference call Monday for the news media, Weeks said that Siegelman and his co-defendant Richard Scrushy each deserve a new trial because Fuller should have disqualified himself from their criminal case on the judge's own motion.
"The evidence is clear to me that Judge Fuller failed to disclose his bias in the Siegelman case, and committed fraud on the court," said Weeks, citing what he called the similar 1988 Supreme Court case Liljeberg v. Health Services Acquisition Corp. (486 U.S. 847). "If a judge knows something that others in the case don't know, and it would cause an appearance of bias, he has an obligation to identify it and get out of the case," Weeks said, as quoted by Alabama journalist Roger Shuler. "The Supreme Court said in Liljeberg that the judge's failure to do this was inexcusable."
In a related development, Siegelman's co-defendant Scrushy hired Investigative Group International, a politically well-connected private detective agency, to explore new grounds to win his freedom from prison. Scrushy, former CEO of HealthSouth, Inc., has said he was the innocent victim of a political "vendetta" against Siegelman. In 2007, Scrushy mounted a major but unsuccessful effort to show that Fuller's Doss Aviation holdings created the appearance of bias by the judge toward federal authorities who are the contractor's major customers. Doss Aviation services include training Air Force pilots and refueling Air Force planes, including the President's Air Force One.
Separately, Alabama attorney Dana Jill Simpson distributed today on an Alabama email list for Siegelman and Scrushy supporters an overview from the Doss Aviation website of its global activities in 2007. Beginning in February of that year, Simpson volunteered to help Scrushy avoid what she regarded as wrongful imprisonment.
In April 2007, Fuller rejected the Simpson-assisted Scrushy arguments of judicial bias. Simpson, a longtime volunteer for Republicans in opposition research, then swore out an affidavit in May 2007 alleging to Fuller that prominent Alabama Republicans had sought as early as November 2002 to frame Siegelman. In September 2007, Simpson amplified her statement with 143 pages of sworn testimony before the U.S. House Judiciary Committee's staff. She swore, among other things, that she heard from a Republican colleague in early 2005 that Fuller "hated" Siegelman, and would be appointed as judge in his case to "hang" him. Those charges have been denied in affidavits or media interviews by Republicans. Simpson says she has no recollection of meeting Fuller, although he was a contemporary at the University of Alabama.
In her informal email today commenting on Doss Aviation's importance to others concerned about the case, Simpson wrote (with punctuations and capitalizations here formalized):
"This company was doing more than anyone could imagine....They, my friends, really do appear to be almost a wing of the Air Force....In fact, the $178 million, 10-year Doss In-Flight Screening Program was awarded right during the middle of the Siegelman case....It is time our government starts answering questions about how one company has been allowed to have so much power providing fuel to our military and training our Air Force."
Clemon's letter to Holder and three Holder aides was about separate legal circumstances. It was based on his nearly 30 years experience until his retirement Jan. 31 supervising trials in every one of Alabama's federal districts and two in Florida. Based on his first-hand oversight, Clemon now seeks Holder's investigation of Siegelman's trial in 2004. Clemon asked also for an investigation of the Justice Department's later prosecution in Alabama's Middle District under Fuller.
Siegelman was convicted on seven of 32 counts in 2006 before Fuller, who held prosecutors blameless for most of the many claims of prosecutorial misconduct. Siegelman's convictions centered on his 1999 request to Scrushy to donate to the Alabama Education Foundation, which advocated a state lottery to improve public school funding. After Scrushy arranged for $250,000 in donations to the foundation Siegelman reappointed Scrushy to a state health care oversight board from which Scrushy had resigned after serving under three previous Alabama governors. In 2000, Scrushy arranged another $250,000 donation to the foundation before he again resigned from the state board.
Prosecutors called the arrangement a bribe, or more technically, a deprivation of the "honest services" that an official owes the public. Defendants and their supporters said virtually every politician asks for donations, either for campaigns or other causes. Facing a heavy sentence on separate bribery charges, former Siegelman aide Nick Bailey provided the key evidence against Siegelman for the jury conviction by suggesting that the board appointment was illegally tied to Scrushy's donation. But CBS 60 Minutes reported last year that Bailey underwent 70 practice sessions with prosecutors before trial, and prosecutors failed to deliver interview notes that are required to help the defense prepare for trial.
In 2007, Fuller imposed seven-year prison sentences on both defendants, who were taken directly from the court to prison in shackles. Siegelman, 63, is temporarily free on bond after serving nine months. Scrushy, 56, remains in prison.
In denying Scrushy's recusal motion before sentencing, Fuller wrote that he is fair, and thus can remain on the case. The Justice Department and the Eleventh Circuit U.S. Court of Appeals have insisted that any complaints about Fuller's fairness are "untimely." The Justice Department and appeals court say litigants must unearth evidence of bias before trial, a position that receives mixed views by independent experts.
But Weeks says his 2003 evidence about Fuller, including actions by two state of Alabama tribunals in a pension case, proved that Fuller is a liar. Therefore, Weeks says, litigants cannot rely on any of the judge's opinions, including his statements of being bias-free. Weeks says that his recusal action, which also sought Fuller's impeachment and criminal prosecution, is not part of the normal court file available to litigants via the federal government's electronic data retrieval system, and never received news coverage before Siegelman's trial.
Thus, Weeks says, the courts have additional reason to hold Fuller to the standard established by the Supreme Court that a judge must disclose possible conflicts and recuse himself. Fuller himself promised to do so during his 2002 confirmation hearing. At the hearing, Fuller also avoided entirely any question about his work as CEO and chairman of Colorado-based Doss Aviation from 1997 to 2002 while he also held a full-time job as a state district attorney in Alabama.
Both Siegelman and Scrushy have argued that they did not know about Weeks's evidence before their trial in 2006, or about the extent of Fuller's financial interests in Doss Aviation. Fuller was listed on a Maine corporation filing as being the 43.75 percent controlling shareholder of Doss Aviation. This was by far the largest shareholder of a company that has received more than $300 million in federal contracts since the beginning of 2006 while Fuller has presided over Siegelman's prosecution. Critics claim that Siegelman case's was steered to Fuller because he was a Republican political leader in Alabama before he was named to the bench, and that Republican-dominated appeals court panels have rubber-stamped Fuller and Department of Justice misconduct.
Fuller, the Justice Department and the three Republican judges on the appeals court panel that vindicated Fuller and the Justice Department in the March 6 decision each declined comment for this article, which is part of a five-month research project. The full appeals court, which is majority-run by Republican-appointed judges, on May 15 denied Siegelman's request to appeal its March 6 decision affirming five of his seven convictions.
So, Siegelman is due to appear before Fuller for resentencing unless he wins a new trial or other favorable action from the Justice Department or courts. The Justice Department last week sent a letter to the U.S. probation office requesting that Fuller impose a 20-year sentence on Siegelman. The Justice Department declined to release the text of the letter except to the defendant.
Siegelman's complaints of unfairness have ramped up a protest by legal experts and grassroots critics that is almost unprecedented in recent years, aside from the simultaneous protests now occurring regarding U.S. detention, rendition and torture of suspected terrorists. In April, for example, a bipartisan coalition of 75 former state attorneys general -- the chief law enforcers of a more than 40 states -- wrote to the Justice Department to protest Siegelman's prosecution.
The Justice Department declines to comment on Clemon's letter or to release photos of its relevant officials, aside from Holder. Republican holdovers still run most U.S. attorney's offices.
Connecticut's Acting U.S. Attorney Nora Dannehy, a career prosecutor, continues also to lead a long-running investigation of allegations that the Bush White House interfered with Justice Department decision-making around the country. Holder said on April 9 that no specific investigation of the Siegelman case was underway. In a related development, former White House advisor Karl Rove reportedly testified to a federal grand jury last week. But details are secret by law.
This secrecy helps make Clemon's letter an important part of the debate. This is especially so given his vantage point as the chief judge in Alabama's Northern District from 1999 to 2006 and his current freedom to speak as a retired judge.
As background, the Bush Administration's Justice Department announced Siegelman's first prosecution in May 2004 on charges of defrauding Alabama's state health care program. The case was assigned to Clemon after three other judges recused themselves. Federal prosecutors unsuccessfully sought to force transfer of the case away from Clemon. He is a Columbia University Law School graduate and a Democrat who took office in 1980 after nomination by President Jimmy Carter. The federal appeals court rejected the prosecution's claims that Clemon was biased against prosecutors, and the case proceeded to trial in the fall of 2004.
Clemon's letter last week to the Justice Department said that U.S. Attorney's office "undertook considerable judge-shopping" in its attempt to steer the Siegelman case away from him in what he called "a baseless and futile effort to have me disqualified." Clemon, who introduced his letter by saying that he was writing as "a private citizen," continued as follows:
"Two of the AUSAs [Assistant U.S. Attorneys] rather blatantly attempted to poison the jury pool. After the Defendants moved that any alleged [Federal Rules of Civil Procedure] 404(b) materials be filed under seal, and with full knowledge that the motion was under submission, the AUSAs on the very next business day filed the materials as a matter of public record. The predictable poisonous publicity ensued. Although both AUSAs were subsequently sanctioned, the success of their efforts necessitated my decision to sequester the jury."
"The testimony of the witnesses called by the Government at the James conspiracy hearing [one that is requested under the 1979 federal appeals court case U.S. v. James] conclusively established that there was absolutely no basis for a conspiracy charge. When I granted the Defendants' motion to dismiss the conspiracy count, the AUSA forthwith moved to dismiss the remaining case against Mr. Siegelman and Mr. Hamrick [Paul Hamrick was a former aide to Siegelman. In 2006, the jury acquitted Hamrick of all charges in his second trial with Siegelman]. The motion was granted, and the case was dismissed with prejudice against those Defendants."
In a footnote in his letter, Clemon cited testimony by the former Siegelman aide Bailey, a key government witness in both the first and second federal prosecutions against the former governor. In that 2004 court testimony, Bailey denied that he knew about "an unlawful conspiracy of any kind," a story that Bailey would change in his later testimony before Fuller.
"I have no personal knowledge of the facts and circumstances surrounding Mr. Siegelman's subsequent prosecution and conviction in the Middle District of Alabama," Clemon continued in his letter last week. "But given my experience with his unwarranted prosecution in the Northern District, and in the interest of ensuring that Justice Department cases are handled fairly and consistent with its commitment to justice, I strongly support a thorough investigation by your office of allegations of prosecutorial misconduct in Mr. Siegelman's prosecution in the Middle District."
The Justice Department declined to release the Clemon letter, which will be posted shortly on my website www.EagleViewDC.com. The website already has many other source documents and several articles regarding the federal prosecution against Siegelman and Scrushy cited in the comprehensive Huffington Post article published on May 15. That article featured perspectives of the Missouri attorney Paul Weeks, who was making his first published comments drawing lessons from his 2003 impeachment effort against Fuller to the Justice Department's Siegelman prosecution.
Weeks has said that Fuller held a grudge against Siegelman for appointing a state district attorney who helped Weeks and others investigate Fuller's alleged conspiracy to defraud Alabama's state pension system of $330,000. The pension conspiracy allegedly was to cover up Fuller's role in serving as CEO of Doss Aviation. In late 2002, Fuller described criticism of the pension fight as "politically motivated." No indictment or impeachment of Fuller ever occurred.
Weeks amplified his views today on the "My Technology Lawyer Radio Show" that I co-host with Internet radio pioneer Richard Scott Draughon. The interview tape is available here.
A political independent, Weeks says he remains available to cooperate with authorities in any investigation of Fuller, which he tried unsuccessfully to initiate in 2003. He drove to Washington, DC then to hand-deliver copies of his 180-page affidavit and exhibit about Fuller to key officials at the Justice Department, to House Judiciary Committee leaders, and to all members of the Senate Judiciary Committee. He says he received no response to his 2003 effort, but is more hopeful now.
"After the investigation," he says, "I was convinced that Fuller was a danger to the federal judiciary. He had no sense of right and wrong, no respect for the public, and certainly no respect for the law."
Fuller and relevant Justice Department officials were invited to comment on this report, which will be updated with their comments.
Follow Andrew Kreig on Twitter: www.twitter.com/AndrewKreig