The plight of litigants who face a biased judge is illustrated by the track record of a prominent Alabama federal judge, as well by major recent decisions requiring new trials in West Virginia and Georgia courts.
The track record of Chief U.S. District Judge Mark E. Fuller of Montgomery, Alabama shows that he continues to supervise cases compromised by his personal, financial or political interests despite his promise at his 2002 confirmation hearing to recuse himself from any conflicts.
Exposure of Fuller’s record is timely because of the Senate’s forthcoming hearings for Obama administration judicial nominees, and because of growing concerns about the recusal standard. These include the U.S. Supreme Court’s 5-4 ruling June 8 that a West Virginia Supreme Court judge should have recused himself from a case involving a major contributor to his judicial election campaign. Also, a federal judge in Georgia admitted last month that he shouldn’t have tried and sentenced a high-profile political adversary who now seeks dismissal of the charges.
The right to an impartial judge is worth understanding because so many of us are likely to be in court one day, or at least to care about a friend or family member’s civil or criminal case. The federal legal standard requiring recusal centers on whether an ordinary informed person might think a judge’s impartiality might be questioned. In contrast, the vast majority of legal issues are primarily for legal specialists, whether lawyers or judges. And most of these experts clearly are reluctant to provide the laity with the kind of information below in an analysis of six Fuller cases.
In Alabama, Fuller has declined to recuse himself from the Justice Department’s prosecution of former Alabama Gov. Don Siegelman, a longtime personal and political foe. On May 15, my Huffington Post columndocumented this under the title, “Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company.” Others have published many criticisms of Siegelman’s prosecution by the U.S Justice Department, making it the nation’s most controversial criminal case of the past decade.
“The conduct in the federal court in Montgomery is an unprecedented disgrace,” wrote Harper’s columnist and Columbia University Law School professor Scott Horton, for example, in January 2008.
Yet there’s always two sides to a story, even in an opinion column such as this. In that spirit, here is the core of an email that Judge Fuller sent me this week after I requested his perspectives: “However, I cannot comment on any pending case and as much as I would like for the record to be set straight, I will not become involved in responding to accusations about any pending matter. I appreciate your desire to seek the truth in an unbiased way and I wish you the best of luck.”
That’s a nice note under the circumstances. Additional reader views and news tips are welcome in the comment section below, including from the judge’s defenders.
But today’s column focuses primarily on questions about the justice system. In this, it draws on the advice I received in 1976 on the first day of my five years reporting about the federal justice system for the Hartford Courant, Connecticut’s largest newspaper. “Remember in your reporting, the government is always right!” said a smiling young prosecutor named Paul E. Coffey. He would go on to win a pioneering prosecution against the mob in Hartford, and then lead the Justice Department’s nationwide organized crime strike force that would smash the Mafia’s power, thereby helping the country immeasurably.
A different tone my first day came from my Courant predecessor on the justice beat Thomas “Dennie” Williams when he took me aside in a courthouse hallway at the end of his introductory tour to meet federal judges and prosecutors. “Don’t ever forget,” he advised, “that for some of the people coming through this court, you’re the last chance they’ve got.” Williams is still at it, reporting in a 2006 Truthout article about one of nation’s most comprehensive studies of public complaints about federal judges. The findings? That only six of the nearly 4,300 public complaints over a six-year period resulted in any action by higher authorities. Five judges received the lowest forms of public or private censure, and one received a secret response.
Focusing on Alabama, Harper’s columnist Scott Horton has calledfor congressional oversight of Fuller and potential removal of the judge and the most devious of the federal prosecutors from “their sinecures.” Horton has authored more than two dozen such columns about Fuller since mid-2007. Most of them criticized the judge’s activism in helping Bush administration prosecutors in 2006 in their all-out effort to convict the Democrat Siegelman on corruption charges in 2006. A few columns reported on the judge’s cozy relationships with powerful elected officials who are in a position to help his business interests, as well as the unwillingness of local media barons to scrutinize those situations.
Yet Fuller’s power — like that of other federal and state supreme court judges — extends far beyond criminal cases such as Siegelman’s to broader issues that directly affect the quality of life in his state.
A review of Fuller’s track record since his lifetime appointment in 2002 shows many instances of his judicial activism that helped himself and also raised serious questions of conflict of interest. The summary below of six controversial cases is long. In fact, it’s remarkably long for a judge who’s been in office just six and a half years since his nomination by President Bush and his recommendation by Alabama’s two Republican Senators, Richard Shelby and Jeff Sessions. The Senate recommendations, available here for review, focused upon Fuller’s work as a full-time district attorney for the state of Alabama, supervising an office serving two counties.
Sessions is the most senior and otherwise influential Republican on the Senate Judiciary Committee. As such, his opinions of nominees are highly influential in the current review of Supreme Court nominee Sonia Sotomayor and what will soon become a flood of other Obama nominees for judgeships and posts at the U.S. Department of Justice around the country.
What’s At Stake?
Illustrating the enormous public interest in keeping judges fair and honest — whether in Alabama, West Virginia or elsewhere — is legal work by the Retirement Systems of Alabama (RSA) to protect the pensions of state employees. RSA’s longtime chairman is Dr. David G. Bronner. He is highly regarded in Alabama for increasing the employee pension fund from $500 million in 1973 to an estimated $32 billion by the end of 2007.
In 2002 and 2003, RSA and Bronner challenged Fuller’s integrity in two disputes that were widely reported in the local press and in back-to-back editorials that Bronner wrote for RSA’s monthly newsletter for retirees, The Advisor.
The first controversy was to prevent a money grab by Alabama criminal investigator Bruce DeVane, who worked for Fuller in the district attorney’s office. In 2000, Fuller raised DeVane’s annual pay from $80,307 to $152,014. That new pay grade was nearly $60,000 more than Fuller’s own pay of $92,169 from the state that year as DeVane’s boss. DeVane, 49, then sought to retire and use the higher salary as his pension base for the rest of his life.
After assuming his federal judicial office on Nov. 26, 2002, Fuller used the prestige of his judicial status on Dec. 4 to testify in support of DeVane’s claim, even though section 2B of the Code of Conduct for U.S. Judges discourages testimonials. The judge cited DeVane’s hard work in writing office manuals as a key reason for the raise. RSA opposed what it projected to be $330,000 in unmerited payments based on Fuller’s “salary spike” for DeVane just before retirement.
In another court dispute at the same time, RSA was alleging fraud against the bankers and financial advisors for Enron, Inc., following the largest bankruptcy in U.S. history. RSA sought reimbursement to protect retirees. Separately, federal prosecutors were on the way to winning criminal convictions against Enron’s top management.
In 2007, RSA’s chairman summed up these disputes in a front-page editorial in The Advisor. “The RSA had to go through the entire state court system to prevent Judge Fuller’s buddy from ripping off the RSA,” Bronner wrote. “Shortly thereafter, Judge Fuller tried to sandbag the RSA by preventing our claim (by doing nothing) against the ultimate crook ─ Enron! Fortunately, the RSA prevailed on both issues.”
Based in part on evidence from the RSA case and from a state district attorney, Missouri attorney Paul B. Weeks, representing a plaintiff before Fuller in the separate civil lawsuit Murray v. Scott, drew up a motion in 2003 to force Fuller to recuse himself from Murray.
Weeks alleged that the pension and Enron cases were part of a Fuller criminal conspiracy. Its essence, Weeks said, was to force the state to provide hush money for DeVane because the investigator knew that Fuller spent so much of his time out-of-state as the chief executive officer of the Colorado-based military contractor Doss Aviation, Inc. “If so,” Weeks wrote in his filing, “this would be a judicial infamy of historic dimension: a federal judge who waited only 9 days after taking office before committing crimes and violating laws he swore to uphold” [emphasis in the original].
Weeks delivered copies of his sworn statement, motion and evidence totaling 180 pages to Fuller and to the U.S. Department of Justice Public Integrity Section, among others. Weeks obtained Fuller’s recusal from the Murray suit, but with no written explanation for the reasons. Holding the view that Fuller was so dishonest that he should never preside over another litigant, Weeks also asked the Public Integrity Section to prosecute Fuller for perjury and conspiracy to defraud RSA of $330,000 in pension funds.
Weeks now says that the Public Integrity Section’s failure to disclose Fuller’s status means that the judge should have announced his status to litigants in the Siegelman case and recused himself if he failed to secure a waiver from them to continue. His theory was that the Justice Department potentially controlled the judge because it could prosecute the judge himself at any time for conduct far worse than alleged against the defendant Siegelman.
The Justice Department declined to confirm or deny any investigation of Fuller. The Department and Fuller have maintained at other times that their decisions are justified, with Fuller saying criticism is “politically motivated.” DeVane’s attorney Joe C. Cassady failed to respond to a request for comment. Fuller, before his government work, had been a partner in Cassady’s law firm in Enterprise, Alabama.
Fuller’s proceedings show that he sometimes recuses himself, sometimes not. Sometimes he writes an opinion justifying his actions, sometimes not. What’s consistent is that his actions have prompted a remarkable level of controversy by litigants and outside critics accusing him of abusing his powers since he took office.
Recusal occurs when a judge decides not to preside over a particular case. Once a judge recuses, the case is then sent to another judge who then, in turn, assigns the case to a new judge who is qualified to preside. If granted in a criminal matter after conviction it typically requires a new judge and a new trial. Federal law requires recusal if an “objective, disinterested lay observer” would have a “significant doubt” about a judge’s impartiality. This legal standard is distinctive in its reliance upon the views of the ordinary person.
The standard creates a particular drama in the Siegelman case. This is because Fuller and the Justice Department have maintained that not a single objective and informed person in the U.S. might think the judge biased. This is despite a public protest that is almost unprecedented this decade anywhere else about the fairness and legality of this case, including the judge’s supervision.
Judges are supposed to initiate their own recusal if circumstances warrant under a leading U.S. Supreme Court case. In Liljeberg v. Health Svcs. Acq. Corp, the court ruled in 1988 that a Louisiana judge inexcusably failed to remove himself from a case when he knew he was a trustee of a hospital involved. The case and its applicability to Fuller were described in a May 18 article by Alabama journalist Roger Shuler quoting Weeks entitled, “Siegelman Judge Committed Fraud on the Court.”
As one of the recent cases keeping recusal in the news: the Supreme Court ruledJune 8 in Caperton v. A. T. Massey Coal Co. that West Virginia’s chief justice must recuse himself from a $50 million case against a coal company whose chief executive had spent $3 million to elect him. Thirty-nine states elect at least some of their judges, according to a New York Times report. See Court opinion.
That decision followed one last month by Georgia federal judge Dudley Bowen, who admitted that he never should have presided over the corruption trial of former Georgia senate leader Charles Walker because “impartiality might reasonably have been questioned.” Walker, a former state senate majority leader and a publisher of Georgia newspapers that are aimed at blacks, had opposed Bowen’s judicial appointment three decades ago because of Bowen’s membership in clubs that restricted membership to whites. Walker’s prosecution on 142 counts of fraud primarily stemmed from claims that his newspapers fooled advertisers by exaggerated circulation totals, which is not uncommon among publications.
Critics of the prosecution such as Horton and Walker’s son Charles “Champ” Walker, a radio show host, have cited the case as closely comparable to Siegelman’s as an example of an all-out effort by Bush administration Justice Department to target Democrats. The Georgia case was different from Siegelman’s, however, because the defendant’s judge had been nominated by a Democrat. But evidence leading to the recusal showed the additional factor that the judge was friendly with a newspaper publisher in Augusta who competed with the defendant.
“There’s absolutely no doubt that my father’s case must be retried or his sentence vacated and rights restored,” Champ Walker wrote me on June 10 as he planned a trip to Washington, DC this month to seek Department of Justice review. “We will never stop fighting for him or for the others that have been wronged. I ask the question: How could the DOJ not intervene with the evidence that Judge Dudley Bowen recused?”
The Alabama Cases
Below is a sample of Fuller cases, including two excerpted above, that raise questions about potential judicial bias forbidden by the Code of Conduct for U.S. Judges if it might constitute “impropriety or the appearance of impropriety.” The critical year for decision-making is in parenthesis.
Murray v. Scott (2003). On July 25, 2003, Paul Weeks filed his affidavit seeking Fuller’s recusal from Murray, as described above and in my May 15 Huffington Post article. Source materials, including his exhibits and relevant court rulings on this and other cases below, are available here. The Weeks filing was based in significant part on state proceedings involving RSA. Weeks claimed that Fuller’s motivation was to keep DeVane quiet about the specifics of Fuller’s two concurrent full-time jobs from 1997 to 2002. Fuller was chairman and chief executive officer of Colorado-based Doss Aviation from 1989 to 2002. That overlapped since 1997 with Fuller’s state district attorney post.
Weeks promptly won Fuller’s recusal from Murray. But neither Fuller nor Eleventh U.S. Circuit Court of Appeals Chief Judge James L. Edmondson described the reasons for the recusal. Furthermore, the legal arguments and evidence submitted to the court system by Weeks were placed in a “separate binder” that is not readily available to other litigants via the federal court system’s electronic document retrieval system PACER.
Weeks says that court officials apparently wanted his evidence hidden from any future litigants facing Fuller. If so, Fuller’s duty to disclose his conflicts under the Liljeberg Supreme Court case would be especially strong. Siegelman and his co-defendant Richard Scrushy say they never knew before their trial that Weeks had made wide-ranging allegations against Fuller, or that the judge was the largest stakeholder in a military contractor whose revenue depended on government contracts.
Retirement Systems of Alabama v. Merrill Lynch & Co. (“RSA-Enron Case”) (2003). In March 2002, Alabama’s state pension fund RSA filed suit in Alabama’s state court in Montgomery to recover $65 million lost in the “death spiral” of Enron in 2001. RSA requested that Fuller stop trying to assert federal jurisdiction over the case to affect its outcome, and instead let the case remain in its proper venue in state court.
During this period in 2003, Weeks filed his affidavit in the Weeks case, saying, “As I understand it, Judge Fuller refused to recuse himself from the RSA-Enron case. This is a very troubling situation” [emphasis in the original].
“The evidence strongly suggests that Fuller and DeVane committed serious crimes against the RSA,” Weeks continued. “By refusing to recuse himself from the RSA’s case against Enron, Judge Fuller is positioned to taint the RSA and any RSA official who may testify against Fuller should Fuller ever be prosecuted for his crimes against the RSA [emphasis in the original]. In the RSA-Enron case, Judge Fuller will rule against the RSA on some important issue. Then, if Fuller is ever criminally prosecuted for his crimes against the RSA, Fuller can claim that any RSA official who testifies against Fuller is doing so in retaliation for a court ruling Fuller made against the RSA.”
“Thousands of Alabamians rely on RSA for their pensions,” wrote Alabama journalist Roger Shuler on his blog in 2007. “And yet Weeks’s affidavit presents overwhelming evidence that Fuller first tried to defraud RSA and then wrongfully ruled against RSA in retaliation for the pension fund having the audacity to defend itself from an attempt at fraud. Does Mark Fuller sound like the kind of person who should be in any position of authority? Does he sound like the kind of person who should have been overseeing the trial of former Governor Don Siegelman?”
In the end, RSA was able to transfer its Enron suit away from Fuller to state court. A settlement announced in 2005 by RSA’s law firm was that five financial advisors and fund-raisers for Enron agreed to pay RSA $49 million. The settlement of the state case allowed RSA to recoup the vast bulk of the money that it lost in its Enron investments.
U.S. v. Siegelman (2007). Don Siegelman was Alabama’s governor from 1999 to 2003. He and former HealthSouth CEO Richard Scrushy were indicted in secret on May 17, 2005, with the case assigned to Fuller. Prosecutors announced the charges and Fuller’s assignment on Oct. 26, 2005 in a superseding indictment. The key allegation was that the wealthy Scrushy arranged $500,000 in donations to the Alabama Education Foundation. Siegelman supported the foundation’s advocacy for better schools through a state lottery so strongly that he personally signed a loan guarantee for its debt. Siegelman then reappointed Scrushy to a volunteer state board on which Scrushy had served under three previous governors. In 2006, the defendants were convicted on seven of 32 counts on corruption charges.
In February 2007 as sentencing before Fuller approached for the defendants, Jill Simpson alerted Scrushy’s attorneys that her work as an attorney representing government contractors enabled her to know that Fuller received massive non-judicial income from Doss Aviation and its affiliates.
Simpson was also a longtime volunteer in opposition research to help Republican candidates against Siegelman and other Democrats. She testified later in 2007 to congressional staff that she was worried before the Scrushy and Siegelman sentencing that she was obligated as an attorney to prevent the defendants from being wrongly framed and imprisoned. She said she had heard clues about a plot among fellow Republicans to prevent Siegelman from running for re-election in 2006, and was later appalled to see something like it unfold. Republicans have denied her allegations.
In April 2007, Scrushy and his attorneys filed a motion asking Fuller to recuse himself. The brief alleged that Fuller’s 43.75 percent ownership in Doss Aviation reported in state corporation filings was a conflict of interest because of the company’s dependence on contracts from the same federal government they said was wrongfully prosecuting Scrushy. Fuller’s closely held company had six other shareholders. The only one with more than a 6.25 percent share was Fuller’s former law partner, Joe C. Cassady, Sr., with 25 percent.
Frank G. Hunter, Fuller’s successor as Doss Aviation chairman and CEO, was later quoted as saying that Fuller’s stake has been lowered to 30 percent. Doss officials failed to respond this week to a request to comment on Fuller’s current stake in the company, which has received more than $300 million in federal military contracts since the beginning of 2006. The multiyear contracts are for such tasks as training U.S. Air Force pilots nationally, providing the military and such civilian agencies as the FBI with uniforms and safety gear, and refueling Air Force planes, including Air Force One.
Fuller rejected the recusal motion, saying that no reasonable person would think he might be biased. He went on to sentence the two co-defendants in June 2007 to seven years in prison apiece, denying them the appeal bonds that usually are granted to white-collar defendants and ordering them to be sent immediately from court to prison in shackles. Siegelman, 63, later won freedom from an all-Democratic appeals court ruling after nine months in prison, a month of it in solitary confinement. Scrushy, 56, remains in prison.
An all-Republican panel of the federal appeals court affirmed Fuller’s jurisdiction on March 6, 2009, saying that Scrushy’s argument was “untimely.” The appeals court also affirmed five of Siegelman’s seven convictions of the 32 charges originally brought by prosecutors. The court dismissed allegations of prosecutorial misconduct and ordered the defendants to reappear before Fuller for re-sentencing.
The mostly Republican full appeals court affirmed the three-judge decision. The Obama Justice Department, which includes many holdover political appointees from the Bush administration in key positions in Alabama and elsewhere, has requested that Fuller increase Siegelman’s sentence to 20 years. The reasons for the Justice Department’s recommendation are in a letter to the U.S. Probation Department that the Department has declined to discuss.
Gustafson v. Johns (2006). On May 22, 2006, Fuller was one of three judges on a special three-judge panel of the federal court of appeals who dismissed a constitutional challenge by 19 Alabama voters alleging that Alabama’s 2001 redistricting was partisan gerrymanderingthat deprived voters of their rights to fair elections. unanimous decision by two Republicans and a Democrat was that the case should be dismissed because it was so similar to previous litigation.
Redistricting decisions such as this can have enormous impact because the process typically occurs just once every 10 years and carves up congressional districts in convoluted ways to benefit the powerful.
The appeals court judges noted that Gustafson was brought by Republicans, and had its roots in early 1990s activities of the executive committee of Alabama’s Republican Party. Fuller himself had served from 1992 to 1998 on that same Republican executive committee.
During that period, the Republican leadership worked with such political strategists as William Canary and his close friend Karl Rove to transform Alabama’s state office-holders from primarily Democratic to primarily Republican. The notable exception was Siegelman, the only politician in Alabama’s history to hold all four of its top elected statewide offices and serving almost continually in statewide office from 1979 to 2003.
The docket in Gustafson shows no effort to recuse Fuller because of his 1990s Republican political leadership. His work included serving as the campaign manager for longtime Alabama Congressman Terry Everett, a newspaper tycoon from Fuller’s district who was one of the most powerful Republican leaders of the House Armed Services Committee until retirement this year.
In sum, the Republican Gustafson plaintiffs lost with Fuller’s concurrence, and no one asked for Fuller’s recusal. But the case illustrates federal judicial authority over an important dimension of public life, as well as the reluctance of judge and litigants alike to put potential conflict of interest problems on the record.
U.S. v. Stayton (2007). This is another Fuller case involving a recusal that didn’t happen, at least not for a year. The case centers on events near Fuller’s hometown Enterprise, which is located in south-central Alabama. Nearby is Fort Rucker, the nation’s primary flight training base for Army Aviation.
On March 1, 2006, federal prosecutors announced the indictment on corruption charges of William C. Childree, CEO of Enterprise-based Maverick Aviation, and Jeffrey Stayton, an official at the army test and evaluation command center in Enterprise. The government charged that Childree bribed Stayton to help Maverick obtain a $4.7 million contract to modify two Russian helicopters for the U.S. government’s use. This was a small part of what was reportedly a much broader campaign to buy Russian helicopters for use in Iraq. Part of that was described in a Wired article this spring by Sharon Weinberger, “How To Get A No-Bid Contract for Russian Choppers.”
Much of the case remains secret because of national security. But this much is known: Fuller and his former law partner Joe C. Cassady, Sr. together owned 69 percent of Doss Aviation, according to 2003 Maine corporation counsel records, with total apparently reduced over time. But Fuller waited more than a year after the indictment before recusing himself on March 18, 2007 because of the relationship of Maverick and Doss Aviation. A jury later convicted the defendants before another judge.
The Justice Department’s Public Integrity Section pressured Fuller behind-the-scenes to remove himself from the Maverick case after a year of presiding, according to two sources. One of them, Jill Simpson, says, “It shows that Public Integrity knew exactly what kind of guy Fuller was, and had to even figure a way to get him out.” But that account is disputed. “The Department of Justice plays no role in the selection of trial judges,” according to Department spokeswoman Laura Sweeney, “nor did it take a position for or against any possible recusals in the case you reference involving Maverick Aviation.”
The matter could be of continuing interest in the oversight investigations now occurring regarding several of the Justice Department’s high-profile prosecutions. The Public Integrity Section is led by William M. Welch, II. He was the department’s top official who signed its appeals court brief in the Siegelman-Scrushy in 2008 arguing that not a single informed U.S. citizen might think Fuller biased because of his Doss Aviation status. Welch also led the prosecution effort last fall against then-U.S. Sen. Ted Stevens, the Republican from Alaska whose conviction on corruption charges was vacated this year because of allegations of prosecutorial misconduct.
“The recusal order is under seal,” commented the Alabama blog Grievance Project, written under a pseudonym by an Alabama attorney, “making it impossible to learn what conflicts the parties saw in the matter, nor why Judge Fuller felt free to handle the case for some time before withdrawing. It could be legitimate, or it could be a cover-up, and there is no way to find out with the seal in place.”
Walton v. Neptune Technologies (2009). This case illustrates the potential risk for attorneys, private investigators and litigants when researching the background of a judge.
Priscilla Black Duncan of Birmingham, an active Democrat, is a sole practitioner whose clients include Jill Simpson and her friend Mark Bollinger. Bollinger, with 35 years of law enforcement experience, used his account with the data service ChoicePoint to help her research a question about Doss Aviation in February 2007 for Scrushy’s unsuccessful motion asking Fuller to recuse.
Also, Duncan represents Rebecca Walton, who filed a job bias and sex harassment suit in 2005 against her former employer Neptune Technologies. In March 2009, Duncan requested that Fuller recuse himself from Walton on the grounds that “he would find it impossible to be fair,” given her other clients Simpson and Bollinger.
In her legal brief, Duncan noted Simpson’s research exposing Fuller’s finances and her congressional testimony in 2007. In that testimony, Simpson alleged that a Republican friend had predicted in early 2005 that Siegelman would be indicted and that Fuller would be assigned the case to “hang” the defendant. Simpson said she was told that Fuller “hated” Siegelman because of the circumstances of the RSA pension case.
Regarding Bollinger, Duncan’s brief cited email correspondence suggesting that ChoicePoint cut off Bollinger’s subscription to ChoicePoint’s 17 billion records because of the judge’s complaint about Bollinger’s help for Simpson and Scrushy.
Neptune responded by arguing that Fuller should be able to retain jurisdiction over the job bias plaintiff Walton. On April 15, 2009, Fuller ruled that he would continue to preside over Walton because she had not objected to him in a timely manner. Also, Fuller wrote that he would have denied Walton’s motion even it had been on time, saying he “has no financial or other personal interest in the actions of any of Duncan’s clients.”
The judge praised Neptune for the quality of its legal arguments in arguing for his continued oversight, and he ordered all attorneys to prepare for Neptune’s request that the court dismiss Walton’s lawsuit before trial.
As noted above, the legal standard for recusal relies on the views of ordinary people, not on judges and other legal experts. In empowering a public that can be increasingly well-informed by Internet research, this legal standard reduces the traditional power of judges to pressure attorneys, who typically need to foster good relations with the most important judges in their districts.
Yet it’s ultimately judges themselves who interpret the legal standard, and the legal system virtually immunizes judges from scrutiny except in the most clear-cut cases, as noted in the Truthout report by my Hartford Courant courthouse mentor Dennie Williams in his article “Who Is Judging The Judge?”
From this perspective, the federal judiciary’s self-protection mechanisms show an awesome power over litigants, with information about finances doled out only long after the fact and in generalities by the Administrative Office of the U.S. Courts. Its spokesperson says, for example, that it does not make public individualized financial reports of judges that are due each May, and it advises interested parties to request the information from the judges. Fuller failed to respond to my requests for his current financial information on Doss Aviation and other holdings.
The power and secrecy of the judiciary dwarfs even the capabilities of a Siegelman, a Rhodes Scholar elected as Alabama’s attorney general in 1978. Siegelman says he knew nothing until after his conviction in 2006 about his judge’s Doss Aviation holdings and the corruption allegations unearthed by the six months research of Missouri attorney Paul Weeks. Siegelman relied on the 2007 recusal motion by his co-defendant Scrushy, but failed to join it. Courts and the Justice Department, as noted above, have rejected the Scrushy motion as “untimely,” with scant comment on the merits.
So what’s the lesson for any reader with an important case along with a fear that your judge might be compromised and your attorney too timid, too busy or too conflicted to speak up?
You could start your own in-depth investigation of the judge, making sure that your findings are on record with a formal complaint before any major judicial decision. Or you could encourage oversight bodies to do the job that they’re supposed to be doing.
If not you could end up like many others before you: Too late, too bad and sadly out of luck. ###