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Nothing About the Prosecution of Don Siegelman Escapes the Taint of Corruption

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Prosecutor Louis Franklin did an about face. On August 22, 2007, when he was recommending a reduced sentence for his star witness, Franklin said that Don Siegelman would not have been convicted without the testimony of Nick Bailey. Five months later, after Bailey spoke to 60 Minutes, Franklin trashed him.

Bailey, a crook who testified as part of a plea deal, told CBS News that he was coached by the prosecution, in 70 separate pretrial meetings, to tailor his story for the witness stand. Franklin denies that such coaching took place. But a number of other people have impugned Franklin's veracity.

Arthur Leach, a 19-year veteran of the Justice Department, called Louis Franklin a liar. Leach, the lawyer who represented codefendant Richard Scrushy, told Congress that Franklin lied to him about the status of the indictments during preliminary negotiations. Leach also recounted Franklin's offer, that Scrushy could avoid indictment if he testified that Siegelman solicited a bribe. Leach told Franklin that his client was not willing to lie.

Franklin's statements were also repudiated by Karl Rove. In response to reporting by Time and 60 Minutes that Rove exerted influence on the Siegelman case, Franklin offered up a blanket denial. "Karl Rove had no role whatsoever in bringing about the investigation or prosecution of former Governor Don Siegelman," he wrote in a statement to Congress. "It is intellectually dishonest to even suggest that Mr. Rove influenced or had any input into the decision to investigate or prosecute Don Siegelman." But Rove has refused to confirm Franklin's statement. Instead, Rove attempted to negotiate the terms under which he would answer questions about the case in which he had "had no role whatsoever." The White House also backed away from Franklin's claim that '"it is intellectually dishonest to even suggest that Mr. Rove influenced or had any input" in the case; instead it asserted that Rove's relevant communications are covered by Executive Privilege.

Franklin also contradicted his own sworn testimony. As reported on HuffPost and elsewhere, Franklin and his colleagues told the court that the final decision to charge Siegelman and his codefendants resided in Washington, but after subsequent press reports of political interference, Franklin said the decision lay with him.

Franklin's ever-changing stories typify the mendacity in all aspects of the Siegelman prosecution. The unethical behavior, which, as noted here earlier, fit into the political agendas of Karl Rove, Jack Abramoff, and Alabama Governor Bob Riley, spread beyond the prosecutor's office into the judicial branch.

Attorneys general tell the court that Don Siegelman's actions were not criminal.

Louis Franklin's honesty will not be debated on December 9, when the 11th Federal Circuit Court hears oral arguments on Don Siegelman's appeal. The court is being asked to consider whether the prosecution's allegations, taken at face value, constitute a crime. The answer is no, according to 54 former state attorneys general, who submitted friend-of-the-court brief on Siegelman's behalf. They contend that the bribery charges were brought in violation of a 1991 Supreme Court ruling, McCormick v. U.S., and in violation of Siegelman's First Amendment rights.

Franklin's indictment of Siegelman is a recurring stunt that you see over and over in Alabama and elsewhere in the South. A Republican prosecutor brings criminal corruption charges against a prominent Democrat based on some old transactions that smack of cronyism. But inevitably, the allegations lack the factual elements necessary to prove a crime. (For a brief sampling of comparable cases, see the House Judiciary report, plus "Republican Prosecutors and a Local Alabama Newspaper, An Overly Cozy Relationship.") In Siegelman's case, the prosecution brought bribery charges but failed to show any evidence of an explicit quid pro quo.

Here's how the state attorneys general recounted the prosecution's case:

"At best, the facts outlined by the Government show that: (1) Governor Siegelman felt that Mr. Scrushy ought to donate more to his favored issue campaign [the state lottery] than Mr. Scrushy donated to the campaign of his competitor; (2) Mr. Scrushy was aware that Governor Siegelman expected at least a $500,000 contribution to the lottery fund; (3) Governor Siegelman was aware that Mr. Scrushy wanted to be reappointed to the CON Board: (4) Governor Siegelman did not think that such an appointment would cause any problems; and (5) Governor Siegelman did, in fact, reappoint Mr. Scrushy to the CON Board. Completely absent from the Trial Record is any evidence that Governor Siegelman and Mr. Scrushy entered into an explicit agreement whereby Mr. Scrushy's appointment to the CON Board was conditioned upon Mr. Scrushy's making the political contributions in question. Two previous Governors had appointed Scrushy to the same position without incident." [Emphasis added.]

The attorneys general quote the Supreme Court, which explained in McCormick why the facts do not constitute a crime:

"Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, 'under color of official right.' To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law, but also conduct that, in a very real sense, is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation.

"This is not to say that it is impossible for an elected official to commit extortion in the course of financing an election campaign... [But an indictment under the relevant criminal statute is valid] only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act."

With regard to Siegelman's case, the attorneys general argue:

"To permit a conviction to stand in the absence of an explicit quid pro quo would mean that a prosecutor has the power to indict and convict any politician and any donor whenever a donation was made and the politician took action consistent with the donor's desire, while aware of said desire. [Such an interpretation of the law]...can only lead to an impermissible chilling effect on the First Amendment right to contribute to political campaigns."

Siegelman's prosecution is a scandal that extends into the judicial branch.

The legal issues before the 11th Circuit are the tip of a large iceberg. Louis Franklin's falsehoods are more indicative of the scope of the scandal, which extends well beyond the persecution of one politician. Throughout the Siegelman case, at every step in the process, we see how government officials worked in tandem to rig the outcome. You name it, they did it. Sometimes the incriminating evidence against the government is airtight, such as the documents proving that the prosecution lied, concealed evidence, and violated Justice Department rules. For some misconduct - threatening witnesses, deceiving defense counsel - the evidence involves one person's word contradicting another's. And the evidence of more serious misconduct - bribing the judge, jury tampering - is still circumstantial, but extremely compelling.

The taint of corruption extends beyond the executive branch into the judiciary. It's not an easy case to make against a judge. Judges, along with prosecutors, and are afforded a lot of discretion. Even when a higher court finds that a judge or a prosecutor abused his discretion, those abuses are rarely considered grounds for professional discipline or criminal charges. But when you add up the litany of transgressions in the Siegelman case, you see something of an entirely different magnitude.

Consequently, the House Judiciary Committee, in its investigation the Seigelman affair, would be derelict if it failed to pursue evidence that could lead to the impeachment of Judge Mark Fuller.

Fuller's name came up in the sworn testimony given by Alabama attorney Jill Simpson. She recalled a conversation she had in early 2005, many months before Siegelman's indictment was announced, with an old college buddy, Rob Riley, the son of Governor Bob Riley. While they met in his office, Rob Riley said his father and Bill Canary had spoken to Karl Rove, who had in turn communicated with the head of the Justice Department's Public Integrity Section. Rove wanted another prosecution brought against Don Siegelman. Rob Riley said the charges would be brought in Middle District of Alabama, for which Canary's wife, Leura, was the U.S. Attorney, and that the case would be heard by Judge Mark Fuller, who could be trusted to "hang Don Siegelman."

Simpson's testimony suggests several avenues of corruption:

First, it suggests that Rove had a direct tie in to Noel Hillman, who headed the Justice Department's Public Integrity Section. Hillman oversaw the investigations pertaining to Rove's political ally, Jack Abramoff. (Soon after Siegelman was indicted under Hillman's oversight, Hillman was appointed as a U.S. District Court judge in New Jersey.)

Second, it suggests that a Republican operative, Bill Canary, would influence prosecutorial decisions in the Middle District in Alabama, where Canary's wife was the U.S. Attorney. (As recently revealed by Time, Leura Canary played a role in the Siegelman prosecution well beyond the point when she claimed to have recused herself from the case.)

Third, it suggests corruption within the administration of the U.S. District Court in the Middle District in Alabama, where all cases are to be assigned to judges on a random basis. (The choice to move the prosecution of Don Siegelman out of the Northern District, where the first indictment had been dismissed, already smacks of judge shopping.)

Fourth, it suggests that Judge Mark Fuller is susceptible to political influence.

By itself, Simpson's recollection is no more than hearsay. But there's a mountain of other evidence, both direct and circumstantial, that validates Simpson's story.

Mark Fuller's trail of sleaze.

Mark Everett Fuller is unique among federal judges. Though he gets a lot of income from the federal government, a relatively small part of it comes from his judge's salary. In 2005, according to financial disclosure forms, Fuller received between $100,000 and $1,000,000 in dividends from Doss Aviation, Inc., plus he also received between $100,000 and $1,000,000 in dividends from Doss of Alabama Inc. Fuller owns controlling shares, 43.75%, of Doss Aviation and Doss of Alabama Inc., a corporate group that has grown exponentially though federal contracts. After Fuller was assigned to the Siegelman trial, Doss Aviation was awarded with a $175,000,000 defense contract.

Since 1999, Doss Aviation has listed as its mailing address for legal filings as 100 Church St., Montgomery, Alabama, the address of the federal courthouse. Given that Fuller became a judge in 2002, why was the courthouse address used in earlier years? Because a close friend of Fuller lent the use of his office there. That friend was Congressman Terry Everett, who sat on the House Arms Services Committee. As Scott Horton from Harper's explained:

"Congressman Terry Everett, [is] a family friend (and the source of the 'Everett' in 'Mark Everett Fuller'). They both attend the same Baptist church in Enterprise, Alabama, and public records show that Fuller has donated to Everett's campaigns, and that he has in the past served as Everett's campaign manager. That somehow gets the generals in the Pentagon to give no bid contracts to Doss Aviation."

Before Doss received its $175,000,000 military contract in 2006, Judge Mark Fuller had been subject to a number of complaints about his ethical lapses.

The first complaint, in 2002, came as a result of an investigation of Fuller's record as a district attorney in Alabama. The matter was first reported by Scott Horton at Harper's. Fuller called the investigation, conducted by a Siegelman appointee, as "politically motivated." The issue in dispute was whether Fuller had spiked the compensation of a state employee, one year before retirement, from $80,301 to $152,014 in order to boost that employee's pension benefits. The Retirement Systems of Alabama found that Fuller's approval of the increase was irregular, and it did not authorize the boost in pension benefits. But the matter did not end there.

In mid-2003, Fuller was assigned to a case for which he had a conflict of interest. The case was Murray v. Scott & Sevier. An attorney for the plaintiff, Paul Benton Weeks, did a routine background check on Fuller, to see what kind of judge he was up against. Weeks was shocked by what he found, and in July 2003, he submitted a sworn affidavit to the Justice Department and to Congress, alleging that Mark Fuller had committed perjury and had obstructed justice. The alleged criminal acts related to the same 2002 investigation regarding the salary spiking for pension benefits.

Fuller was immediately removed from the case, but the criminal accusations, which should have been investigated by Noel Hillman's Public Integrity Division, were never investigated.

Scott Horton
has reported on other cases over which Fuller failed to recuse himself, notwithstanding direct and obvious conflicts of interest.

Bear in mind, that before any trial, a federal judge has an affirmative obligation to disclose anything pertaining to a case in which he might be conflicted. Fuller disclosed nothing regarding any grudge about a "politically motivated" investigation by a Siegelman appointee, nothing regarding his role as a Republican political operative in Alabama, nothing regarding the Doss government contracts arranged through Republican allies.

Fuller and the prosecution piled on with all forms of bogus charges.

The heart of the government's case was not the so-called bribe between Richard Scrushy and Don Siegelman. In fact, Scrushy had nothing to do with a lot of the 32 counts in the criminal indictment, which alleged over 100 acts of bribery, mail and wire fraud, RICO and obstruction of justice. And Siegelman and Scrushy the were not the only codefendants on trial. The government indicted two other codefendants, both former associates of Siegelman, who were allegedly involved in some of, but not all of, the alleged criminal acts.

Defendants' counsels requested separate trials, arguing that jurors would get confused over who among the four was attached to which of the many different transactions. Fuller denied the request, and by some accounts the proceeding was a bit of a circus.

Distilling things down, the evidence used to convict Don Siegelman of bribery was based on Nick Bailey's recollection of hearsay remarks by Governor Don Siegelman. Bailey's story is as follows: In 1999, after Scrushy and Siegelman met privately in Siegelman's office, the governor walked out holding a check to be contributed to the lottery fund. Bailey asked Siegeleman what Scrushy was "going to want for that [campaign contribution]?" Siegelman's response was, "the CON [state hospitals] Board...." Bailey then testified he commented: "I wouldn't think that would be a problem, would it?" and that Governor Siegelman responded: "I wouldn't think so." But, as revealed by 60 Minutes, there was a flaw in Bailey's story; the check purportedly held by Siegelman had not yet been cut.

That story seems pretty simple and straightforward. Why would prosecutors, who met with Nick Bailey more than 70 times, tell him to rewrite his proposed testimony over and over to prepare for the witness stand? Because all of the other criminal allegations of criminal activity were incomprehensible.

The story supporting the bribery charge was the only one where Siegelman had any connection to the supposed criminal transaction. In all of the other stories for all of the other charges, the nexus to Siegelman required several leaps of faith. They were like those stories that supposedly proved that Saddam Hussein was behind 9/11.

Judge Fuller sentenced Siegelman to:
- 18 months for bribery, plus
- 18 months for obstruction of justice, plus
- 18 months for mail fraud, plus
- 60 months for conspiracy to commit honest service mail fraud, all sentences to run concurrently.

So aside from the bribery, what acts constituted the other crimes for which Siegelman was convicted?

Siegelman purportedly obstructed justice receiving a check from Nick Bailey for $2,973.35 with the notation, "balance due for m/c." According to Bailey, his notation on the check was intended to through criminal investigators off the scent of their criminal scheme. (Really, that's it.)

Siegelman sold Bailey a motorcycle for $11,973.35, and received payment in two checks. Bailey had some financial dealings with Lanny Davis, but there was no evidence, aside from Bailey's word, that Siegelman was aware of anything other than his bona fide sale of a motorcycle to Nick Bailey. So the jury acquitted Siegelman of the fraud charges related to the sale of the motorcycle, but convicted him on this count of obstruction.

According to the prosecution, Siegelman committed mail fraud in 2002 and 2003 when the CON Board sent out mailings as part of an alleged scheme to help out Scrushy's company, HealthSouth. But there was zero evidence tying Siegelman to any of the mailings or any other Con Board activities.

And what was the conspiracy to commit mail fraud, for which Mark Fuller sentenced Siegelman to 60 months in jail? It was the conspiracy to get Scrushy on the Con Board in exchange for a contribution to the lottery fund, which somewhere along the way involved the mail. This was a conspiracy inferred entirely from hearsay testimony recounting statements notable by their vagueness. This is what prosecution and judge offered up as proof beyond a reasonable doubt.

That proof gave Mark Fuller had such certitude that, following announcement of the verdict, he had Don Siegelman hauled away in shackles, and taken away to a maximum security prison in Atlanta where he was kept in solitary confinement. Over nine months, Siegelman was flown to prisons all over the country - to New York, Michigan, Oklahoma, Oklahoma and Louisiana.

Again, the recurring theme in all these political prosecutions is that the alleged facts, taken at face value, do not constitute the elements of the crime.

Below is a brief, and incomplete list, of the rulings from Mark Fuller during the Siegelman trial that, taken individually, show an abuse of power. In their totality, they show an unmistakable pattern of corruption. A federal judgeship is a lifetime appointment; and the danger to our legal system by the likes of Mark Fuller will extend far beyond the reversal of Siegelman's conviction by the 11th Circuit.

Fuller's Dubious Rulings
1. Denial of defendants' requests for separate trials.
2. Failure to inform parties of the judge's several conflicts of interest.
3. Disregarding evidence that the government had misled defendant's counsel prior to indictment.
4. Proceeding to a jury verdict when no evidence was presented to show that such a crime was committed.
5. Allowing the prosecution to present the same evidence more than once - and thereby drag out the trial beyond the date of the Democratic primary.
6. Disallowing questions to the key witness, Lanny Young, about money laundering he conducted on behalf of Republican campaigns.
(Lanny Young had old FBI investigators that he laundered money on behalf of Siegelman's Republican opponents, Bill Pryor, the Republican Attorney general investigating the case - now a federal judge - and Jeff Sessions. Remember, Pryor had set up a fund, the Republican Attorney Generals Association, that lent itself to political money laundering.)
7. Refusal to allow the jury to arrive with a hung verdict.
8. Giving erroneous instructions to jury.
9. Refusal to preserve evidence of jury tampering.
10. Refusal to allow defendants to examine jurors, post-verdict.
11. Limited examination of jurors post-trial in a way that avoided questions of jury tampering.
12. Threatened counsels if they attempted to contact jurors post verdict.
13. Concealed information from defense counsel regard a sham investigation about the origins of evidence suggesting jury tampering.
14. Refusal to consider recusal after confronted with evidence of conflicts of interest.
15. Dereliction in administration that would have allowed Don Siegelman to pursue his appeal.
16. Imposed a harsher imprisonment in response to Siegelman's exercise of his constitutional right to free speech.

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