$300 Million in Bush Contracts Enriched Judge’s Private Company
The Alabama federal judge who presided over the 2006 corruption trial of the state’s former governor holds a grudge against the defendant for helping to expose the judge’s own alleged corruption six years ago. Former Gov. Don Siegelman therefore deserves a new trial with an unbiased judge ─ not one whose privately owned company, Doss Aviation, has been enriched by the Bush administration’s award of $300 million in contracts since 2006, making the judge millions in non-judicial income.
These are the opinions of Missouri attorney Paul B. Weeks, who is speaking out publicly for the first time since his effort in 2003 to obtain the impeachment of U.S. District Judge Mark E. Fuller of Montgomery on Doss Aviation-related allegations.
The comments by Weeks come during a momentous week in one of the most controversial U.S. criminal cases of the decade, with public officials and Alabama activists alike claiming Siegelman was targeted for prosecution because of status as Alabama’s most popular Democrat. The Eleventh U.S. Circuit Court of Appeals rejected on May 15 Siegelman’s request for an en banc appeal of his case, thus keeping it in the hands of Judge Fuller. Also, the Obama U.S. Justice Department announced May 12 that it wants Fuller to increase Siegelman’s prison sentence to 20 years on re-sentencing this spring, even though Siegelman now faces two fewer charges than when Fuller sentenced him in 2007 to seven years in prison.
Siegelman, now free on bail, issued this statement on May 15: “The Bush holdovers in the Department of Justice have asked that I be sentenced to an additional 20 years in prison. The Bush-appointed U.S. Attorney, whose husband is Karl Rove’s closest friend in Alabama, joined with the Chief of the Public Integrity Section of D.O.J., also a Bush holdover, in asking for the longer sentence. What makes the request for a longer sentence even more bizarre is the fact that the Bush holdovers are asking my (Bush-appointed) judge to give me 20 years in prison based on charges for which I was found not guilty.”
In 2003, Fuller avoided any public questions about impeachment allegations of Paul Weeks, which were enabled in part by evidence that Weeks obtained from a state district attorney who had been appointed by Siegelman during his gubernatorial term from 1999 to 2003.
With the impeachment complaint by Weeks receiving no media coverage and known only by high-level government and legal insiders, Fuller was promoted to the position of chief judge for Alabama’s middle district. In 2005, he became Siegelman’s judge in one of the most controversial U.S. criminal cases of this decade. After Siegelman was convicted, Fuller sentenced Siegelman in 2007 to seven years in prison amid claims that the White House had pressured prosecutors to frame the Democratic former governor to remove him as a re-election threat. A Republican, Fuller also became wealthy via his reported 44 percent controlling ownership in Doss Aviation, whose work includes training U.S. Air Force flight candidates nationwide and refueling Air Force planes.
“Siegelman deserved a fair judge, and what he got is one who holds a grudge against him for my impeachment effort,” says Weeks. “If Fuller had a trace of honor he would have recused himself immediately. Instead, he’s part of the machine that pounded down the defendant. It makes a huge difference to a defendant whether the judge is protecting your rights, or letting prosecutors stifle them. All Siegelman needs to do to win a new trial is to put my 2003 affidavit on the table as Exhibit A.”
Yet Fuller has repeatedly denied bias in the Siegelman case, and has said that he’s entitled to obtain stockholder benefits from Doss Aviation without recusing himself from the Siegelman case. The judge declined comment this month on a number of questions arising from this investigation. But the judge wrote an opinion in 2007 stating that no qualified, independent person would think he has the appearance of bias. The Public Integrity Section of the Justice Department endorsed that view in 2008 by asserting that no qualified person could doubt Fuller’s fairness.
Similarly, an all-Republican panel of the U.S. Eleventh Circuit Court of Appeals ruled on March 6, 2009 that any claims of bias against Fuller are “untimely.” Thus, Fuller continues to preside over the case. The appeals court also rejected claims of Justice Department misconduct as either unmerited or harmless, aside from two of seven convictions dismissed for lack of evidence. Siegelman asked for a review by all judges of the appeals court, telling the Huffington Post last week, “If we get a rehearing then we have a few months to pursue options with the Department of Justice. If we don’t, then I’m going to be re-sentenced to prison by the same judge and prosecutors, which I say, parenthetically with an exclamation point, is probably the most bizarre twist yet. I’d be still fighting the same right-wing, [Karl] Rove-anointed and Bush-appointed prosecutors even with [Barack] Obama and [Eric] Holder in charge.”
The unanimous appeals court decision in March vindicating the judge and prosecution failed to quiet escalating complaints about the case. Last month, the New York Times reported that 75 former state attorneys general urged the Justice Department to probe Siegelman’s conviction.
Allegations of prosecutorial misconduct have prompted a nationwide letter-writing campaign this spring by Siegelman supporters to the Justice Department to drop all charges against Siegelman. Vacating charges would parallel Department actions in the prosecution last fall against then- U.S. Sen. Ted Stevens, the Alaska Republican. The Obama Justice Department dropped charges against Stevens in April after the trial judge protested the unfairness of prosecutors.
Siegelman’s supporters claim the same kind of misconduct against him. Last year, for example, congressional investigators demanded an explanation of why a whistleblower in the Justice Department said federal prosecutors communicated with Siegelman jurors during deliberations without notifying the defense. A CBS 60 Minutes exposé earlier in 2008 alerted a national television audience to many more questions about Siegelman’s prosecution, including the prosecutors’ coaching of the key witness against Siegelman in 70 practice sessions without providing interview notes to the defense before trial, as required.
The May 5, 2009 decision by Senate Republicans to name Alabama Sen. Jeff Sessions as their top-ranking member on the Judiciary Committee also raises a question about his oversight in sponsoring Fuller for the federal bench. On Oct. 7, 2002, Sessions detailed for his Senate colleagues Fuller’s experience, and strongly supported the nominee’s qualifications. But Sessions failed to notify his colleagues that Fuller had been working from 1989 until mid-2002 as chairman and CEO of Doss Aviation. That overlapped since 1997 with the nominee’s full-time job as an Alabama district attorney supervising work in two counties.
Sessions also failed to notify his colleagues of Fuller’s involvement in a pension-related dispute in Alabama that would soon spark heavy criticism of Fuller in the Alabama press, and within months lead directly to impeachment effort by the Missouri attorney Paul Weeks.
In fact, not one senator from either party mentioned anything during Fuller’s confirmation hearing about the nominee’s military work or the pension controversy. And, according to Weeks, not a single senator on the Senate Judiciary Committee ever contacted him for a follow-up inquiry on the 180-pages of evidence that Weeks hand-delivered to each office in 2003 seeking Fuller’s impeachment.
“U.S. Senators, including Senator Sessions, have insisted that Congress strictly enforce the Constitution’s Good Behaviour Clause and impact and remove any federal judge whose conduct does not meet exacting standards,” Weeks wrote in 2003, quoting a law review co-authored by Sessions on the topic. “The evidence strongly suggests that Judge Fuller has failed Senator Session’s exacting standards of good conduct.”
The public is, of course, the ultimate judge in the vital process of lifetime appointment for the judiciary, as well as the more specific controversies regarding the fairness of Fuller’s continued oversight of Siegelman’s fate. What follows is an overview of these matters, which extend back over a decade. Many are currently in dispute. The issues include a long-running battle by the House Judiciary Committee to compel responses by former White House advisor Karl Rove about his purported role in the Siegelman case and similar prosecutions across the United States.
This research project’s revelations about the Justice Department’s prosecution of former Gov. Don Siegelman are organized into the following chapters:
• Siegelman Case Recap
• Meet Judge Fuller
• 2003: Enter Paul Weeks
• Weeks Obtains Fuller’s Recusal
• Siegelman Indicted
• 2007: Fuller Imposes Sentence
• Follow the Money
• Legal Rules for Recusal
• Outside Experts
• What’s Next?
For additional articles, charts and photos, visit: http://www.eagleviewdc.com/ to see:
• Key Dates
• Who’s Who
• Expert Opinions
• Judge Fuller’s Other Recusal Cases
Whistleblower Paul Weeks is resuming his effort to obtain the impeachment of Chief U.S. District Judge Mark E. Fuller, and will respond to media questions by tele-conference on Monday, May 18 at 10 a.m. (Eastern Time). The judge and a spokesman for the U.S. Department of Justice are being invited to participate also. Dial (213) 443-4974#. The conference code is: 2026380070. Those asking questions should first identify themselves.
Siegelman Case Recap
Don Eugene Siegelman is now 63. A Rhodes Scholar, Siegelman was elected as Alabama’s attorney general in 1978 and as the state’s governor 10 years later. But he was defeated in a 2002 re-election vote that was so close he was declared the winner on Nov. 3 until a reported software glitch during a controversial rural county recount cost him 6,000 votes and thus the election. Even after defeat, he remained Alabama’s leading Democrat and the only official in Alabama state history from either party ever elected to all four of its statewide offices.
The Bush Administration’s Justice Department announced Siegelman’s indictment in May 2004 on multiple charges of conspiring in health care frauds while governor. Preparing for trial, prosecutors unsuccessfully argued that Birmingham-based Chief U.S. District Judge U.W. Clemon should be removed from presiding because of alleged anti-prosecution bias. Clemon was a Democrat who joined the federal bench in 1980. Failing to obtain the judge’s removal, prosecutors dropped their own case against Siegelman early during trial, in October 2004.
But on May 17, 2005, Bush Administration prosecutors obtained a new and sealed indictment of Siegelman in the different judicial district of Montgomery. Fuller, by then chief judge of Alabama’s district based in Montgomery, was secretly named to preside over a sealed indictment that was unknown to defendants until October.
On Oct. 26, the Justice Department announced a superseding indictment of 32 corruption counts against Siegelman and three co-defendants. This was as Siegelman geared up for his 2006 re-election effort. Siegelman and his co-defendants began trial on May 1, 2006, a month before the Democratic primary that he lost amid adverse news coverage from long-running prosecution and trial.
Siegelman’s trial prompted many complaints of prosecutorial misconduct that were mostly absolved by Fuller. Prolonged and almost deadlocked jury deliberations ended with a split verdict on June 29.
The jury acquitted on 25 of the 32 counts. The guilty verdicts centered on two $250,000 donations that then-HealthSouth Inc. CEO Richard Scrushy arranged for the non-profit Alabama Education Foundation in 1999 and 2000. Prosecutors called the donations bribes. They said it was a deal whereby Siegelman would reappoint Scrushy in 1999 to Alabama’s Certificate of Need board, on which Scrushy had served under three previous governors before resigning.
Scrushy unsuccessfully argued that he knew nothing about the non-profit foundation’ finances, and so couldn’t have been trying to bribe Siegelman by helping it. “I might be the only person in the United States who has ever been convicted for making a charitable contribution,” Scrushy said after trial. Also, the jury convicted Siegelman for obstruction of justice for writing $2,973 check allegedly intended to cover up a gift from a lobbyist.
On June 28, Fuller sentenced the defendants to approximately seven years in prison apiece. The judge ordered the defendants taken from the courtroom in shackles, and denied them an appeal bond. Siegelman served a month of that time in solitary confinement. An all-Democratic appeals court panel freed Siegelman on bond nearly nine months later. Siegelman has said he was innocent of wrongdoing, with the prosecution intended to thwart his 2006 re-election campaign. Scrushy, 56, remains in prison.
Controversy in the Siegelman prosecution is rivaled by only a few criminal cases this decade in the U.S. On May 21, 2007, attorney Jill Simpson reluctantly stepped forward to file a sworn statement with Fuller alleging that fellow Republicans had used the Bush Justice Department to eliminate Siegelman as a Democratic re-election threat in Alabama. This created a sensation in political and criminal circles beyond the Alabama case because it coincided with more general allegations that spring of White House involvement in firing U.S. attorneys for political reasons.
The Republicans named have denied Simpson’s allegations, as amplified below. In recent interviews for this report, Simpson concurred with Weeks, to whom she has never spoken, that Siegelman and Scrushy deserve a new trial because of prosecutorial misconduct.
Also, she says that she is prohibited by Alabama bar association rules from criticizing a judge outside of court. But the record in the case indicates that she sought to fulfill her other bar obligation to prevent wrongdoing by volunteering extensive information to defense attorneys in February 2007 about Doss Aviation finances. Her information was the basis for an unsuccessful defense argument to Fuller in April that his Doss Aviation holdings should disqualify him from the case, as amplified below.
Meet Judge Fuller
Mark Everett Fuller, now 50, was nominated by to the federal bench by President Bush on Aug. 1, 2002 following a successful career in business, state office and volunteer efforts. According to disclosure documents for his Senate confirmation, Fuller became chief executive officer and chairman of the Colorado-based federal contractor Doss Aviation in 1989, four years after graduation from the University of Alabama law school.
Those disclosure records show that Fuller also served from 1997 until mid-2002 as Alabama’s district attorney for the Twelfth Judicial Circuit, overseeing that office’s work for two counties surrounding his hometown of Enterprise.
Among his civic volunteer efforts, Fuller served on the Alabama Republican Party Executive Committee from 1992 to 1998. He thus played a leadership role in the Republican Party’s transformation of the state’s office-holders from being predominately Democrat to Republican. Also, Fuller was the campaign manager for his namesake and hometown Congressman Terry Everett, the former Republican chairman of the Strategic Forces Subcommittee on the House Armed Services Committee. [Editor’s Note: The confirmation hearings require very long download time, with more than 1,300 pages covering multiple judicial nominees.]
Fuller promised on his nomination questionnaire always to report any possible conflict of interest and to recuse himself, according to his disclosure reports, summarized by Weeks as Exhibit 21 of his affidavit.
Alabama’s two Republican Senators, Sessions and Richard Shelby, recommended Fuller during his confirmation hearing on Oct. 7, 2002. Shelby made his recommendation “without reservation.” Sessions said of Fuller, “He has served as chairman of Character and Fitness Committee for the Alabama State Bar, which is an important office and reflects the respect the bar has for him.”
Committee Chairman Pat Leahy, a Democrat from Vermont, focused his questions on Fuller’s legal views. Leahy asked whether the nominee would promise to be fair as a judge. Fuller responded that “one of the worst things I can think of is to have an innocent person in prison.” None of the senators asked about the nominee’s longest period of employment, his 13 years leading Doss Aviation as chairman and CEO, extending to only a few months before the hearing in 2002.
Judiciary Committee ranking Republican Orrin G. Hatch of Utah introduced Fuller’s credentials to the Senate on Nov. 14, 2002. Hatch’s strong recommendation mentioned such qualifications as the nominee’s two years as a law firm associate. Like his fellow senators, Hatch completely ignored the Doss Aviation work. Fuller was approved by a voice vote that evening, and received his judicial commission on Nov. 26.
2003: Enter Paul Weeks
Paul Benton Weeks III of Springfield, Missouri is a 1981 University of Virginia Law School graduate with 28 years experience. This includes successes in complex litigation, and in defending a Missouri client against a corrupt Missouri state court judge forced from the bench by Weeks for misconduct. Separately, Weeks for many years represented a plaintiff in a class action lawsuit Murray v. Scott being litigated in Montgomery, Alabama, and in 2001 help win the recusal of a presiding judge for alleged conflict of interest [Weeks Exhibit 13].
On Dec. 5, 2002, the newly confirmed Fuller was assigned to preside over the Murray case, which is unrelated to the criminal prosecution of Siegelman that began in 2004. Weeks undertook what he calls a routine background check of Fuller by reading newspaper clips.
Some clips reported on controversial extra pay that Fuller had authorized in his district attorney’s office for his chief investigator, age 49, who wanted to retire. Fuller boosted the investigator’s pay from $80,000 to $152,000 per year because of what Fuller called extra work assignments writing office manuals. As early as 2001, Fuller was trying to persuade the Retirement Systems of Alabama (RSA) to use the higher salary as a basis for calculating the investigator’s retirement pay. Fuller’s former law firm Cassady & Cassady ─ whose senior partner Joe C. Cassady reportedly owned 25 percent of Doss Aviation ─ represented the investigator before the pension board. [See Weeks Exhibits 14 and 19]
On Dec. 4, the campaign for more retirement pay for the investigator resumed with the new federal judge’s testimony to the RSA board arguing that the investigator deserved the extra money. But regulators denied request, saying that their obligation was to prevent unmerited pay spikes, (which are sometimes called “backlogging”). RSA projected that the cost to the state pension system would be $330,000 in unmerited payments to Fuller’s investigator over the course of the retiree’s lifetime, thereby hurting other state pension beneficiaries. [Exhibits 14-18]
Fuller’s actions prompted several newspaper articles and editorials read by Weeks chastising the new judge, and praising the retirement board. Newspapers also reported more general criticism of Fuller’s office by Circuit Judge Gary McAliley, who had overseen that district attorney’s office as judge for 28 years. Alabama’s Enterprise Sun, for example, reported on Dec. 11, 2002 that McAliley wrote Siegelman that he was willing to take cut in a pay and rank to succeed Fuller because he believed allegations of financial irregularities in Fuller’s office needed correction. [Exhibit 16]
“Terrible things have come to exist in that office,” McAliley told then-Gov. Siegelman in a letter. “If allowed to continue, public trust will be destroyed and the people will not best be served.” McAliley also was quoted as saying he was concerned about cutbacks in spending for what he regarded as vital community legal services, such as enforcement of child-care support orders.
Suspicions aroused, Weeks drove from Missouri to Alabama for an in-depth review that included discussions with public employees. He obtained a sworn statement from McAliley, a Democrat whom Siegelman appointed in December 2002 to succeed Fuller. McAliley’s affidavit says that he was told by one of the pension board attorneys “that not one single Board member believed Mark Fuller was not lying” when the newly confirmed judge testified to the board under oath in December 2002. [Exhibit 19]
Weeks Obtains Fuller’s Recusal
Weeks put his evidence into a comprehensive filing to Fuller on July 25, 2003. The filing alleged “clear evidence of criminal misconduct” by Fuller both before and after he became a federal judge. Weeks wrote, “The evidence of criminal wrongdoing identified in this affidavit implicates lying and perjury; criminal conspiracy and criminal attempt to defraud the Retirement System of Alabama (RSA) of approximately $330,000; and, misuse of the office of district attorney and federal judge in furtherance of a criminal conspiracy and criminal attempt to defraud.”
Weeks wrote that Fuller should recuse himself because he could not be trusted to preside over the Murray lawsuit. Additionally, Weeks wrote that Fuller should be impeached by the U.S. Senate and prosecuted by the Justice Department. Weeks documented his allegations in a 39-page, single-spaced affidavit, plus its 22 exhibits totaling 140 pages more of evidence.
According to Weeks’s statement, the problem was Fuller’s cozy arrangement with his state staff that enabled him to lead Doss Aviation in Colorado Springs while also drawing a full-time salary as state district attorney in Alabama. Weeks suggested that the pay raise and pension fight for the investigator were, in effect, hush money.
Weeks promptly won Fuller’s recusal with his filing, with no reasons given in court dockets. The affidavit by Weeks and relevant attachments are available via electronic links to this author’s website www.eagleviewdc.com, but they are not electronically searchable via the federal court’s PACER system for court filings. Instead, the court system keeps the information compiled by Weeks in a “separate” binder, according to a cryptic comment on the Murray docket .
Weeks says he believed so strongly that Fuller should be impeached as well as recused that he drove from Missouri to Washington, D.C. to deliver copies of his 180-pages of evidence against Fuller to the office of every member of the Senate Judiciary Committee, which has initial jurisdiction over impeachment actions. Weeks also delivered about 30 more copies to the House Judiciary Committee leadership from both parties, as well as to federal judicial, Justice Department and bar association authorities in a fruitless attempt to obtain the judge’s removal.
Weeks says he never heard a request for further information from any of the oversight authorities, and so he let the matter drop. In 2007, however, he read about Siegelman’s sentencing by Fuller. Via word-of-mouth in legal circles, Harper’s columnist Scott Horton learned of the 2003 affidavit, and obtained a copy that was used for several hard-hitting columns targeting Fuller beginning in October 2007. But Weeks himself has not commented until now.
Weeks is a political independent who has never met Siegelman or tried to contact him, according to a series of exclusive interviews that Weeks granted for this article. To help this research, Weeks also loaned his only remaining copy of his 140-page evidence portfolio, whose most relevant Exhibits 14 to 22 are excerpted in weblinks.
“I just wish I had known about Siegelman’s case before his trial so they [defendants and attorneys] could have been able to understand the kind of animus Fuller has to have for Siegelman,” Weeks says. “I guarantee that Fuller blames Siegelman for my affidavit. If you look at how Fuller treated Siegelman, he clearly hates him.”
“What’s remarkable is that Siegelman has never been given a real chance to show why it’s not appropriate for Fuller to be his judge,” Weeks says. “The material I produced was never available. I think it was put into a separate file to keep it hidden.”
Even a defendant as experienced as Siegelman says that he’s had to learn vital new information along the way. Siegelman says that he never heard of the allegations made by Weeks against Fuller until after his conviction. Siegelman says a retirement board official later reminded him about the controversy over Fuller’s effort to win extra pension money for a staffer. But the former governor says he had no idea that complaints about the pension had evolved into an impeachment effort involving Weeks’s accusations regarding Fuller’s government contracts work.
Responding to a question for this article, Siegelman recently wrote, “I appointed Judge McAliley because he told me, ‘I’m the only one strong enough to clean up Mark Fuller’s mess.’ With his commitment, I appointed Gary.”
Fuller has never publicly addressed Weeks’s affidavit. But the judge has said to a Dothan television station that he “left the district attorney’s office in sound financial condition, and comments made to the contrary are politically motivated.” More generally, Fuller has denied any pro-prosecution tilt in his trial oversight, or any reason to remove himself from the Siegelman case or similar cases because of his Doss Aviation holdings or on other fairness grounds.
Fuller received a two-page letter this month inviting him to comment about the allegations raised in his article. He declined to respond, and in a follow up phone call an office staffer said the judge does not make comments to the news media or make his photo available.
Follow the Money
Simpson, a government contracts attorney by profession and an “opposition research” volunteer for Republicans against Democrats by preference, alerted Scrushy’s counsel in February 2007 to Fuller’s Doss Aviation holdings that she had heard about through her contracting and political circles. She says that she felt obligated as an attorney to try to stop wrongful imprisonments of the defendants, but hoped to avoid any public visibility. Simpson says that neither she nor Scrushy’s defense lawyers knew anything at the time about the Weeks affidavit documenting Fuller’s role with Doss Aviation.
After confirming Simpson’s information with independent research, Scrushy alleged in an April 17, 2007 filing that Fuller’s extra-judicial Doss Aviation income and huge growth in the value of his shares created the potential for bias in favor of the federal government ─ by far his company’s primary customer. Scrushy cited documents stating, for example, that Fuller owned 43.75% of Doss Aviation shares. The only other Doss Aviation shareholder with more than a 6.25 per cent share was Fuller’s former law partner Cassady, who was listed as owning a 25 percent share according to state corporation records.
Scrushy argued that Fuller thus benefitted greatly from federal contract awards. Among them was a $178 million U.S. Air Force deal announced in April 2006 whereby Doss would train Air Force flight candidates nationwide in a 10-year deal renewable yearly, thus providing Fuller an incentive to remain in the Bush administration’s good graces.
The latest Fuller financial disclosure documents available to Scrushy at the time were from 2005, which showed a potential range of income for the judge from Doss Aviation holdings of $200,000 to $2 million during the 2005 year. Fuller’s financial disclosure statements for 2006 and 2007 show his Doss Aviation income valued in an unspecified range between $1.1 million and $6 million each year.
Recent additional research by the Schuster Institute for Investigative Journalism at Brandeis University found that Doss Aviation has been awarded more than $300 million in federal awards since Fuller began presiding over the Siegelman case in 2005. The scope of Doss Aviation’s work is illustrated by the company’s website, www.dossaviation.com. Among other things, it displays a photo of Doss Aviation refueling the presidential plane Air Force One as part of its extensive refueling work for the Air Force. The website also describes the company’s vital role in training Air Force pilots, and in manufacturing uniforms for federal military and civilian employees.
Legal Rules for Recusal
Upon receiving Scrushy’s filing in 2007, Fuller ordered it sealed and denied a defense request to provide additional evidence. Federal law requires that a “judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The issue defers to the opinion of an ordinary informed person. Further, it does not require proof of actual bias, only “significant doubt.”
The judge’s decision said that “no objective, disinterested lay observer….” would entertain a “significant doubt” about his impartiality. The judge declined to rule on whether Scrushy’s recusal motion had been timely.
After seeing Scrushy’s motion rejected and knowing that he and Siegelman faced sentencing in June by Fuller, Simpson filed her whistleblowing affidavit with Fuller on May 21. In it, she alleged that fellow Republicans such as Business and Economic Council President William Canary conspired to use the criminal justice system to remove Siegelman from public office. Canary is a former chief of staff for the Republican National Committee who worked closely in Washington with his friend Karl Rove beginning in the late 1980s. Canary’s wife Leura remains (as of this writing on May 15, 2009) as the Bush administration’s U.S. Attorney for Alabama’s Middle District.
More specifically, Simpson claimed that she heard Canary say during a post-election conference call in 2002 that “Karl” would be contacted to take care of Siegelman in the future. In the context of the conversation, she interpreted that to mean then-White House adviser Karl Rove, a longtime player with Canary in Alabama’s political transformation from predominately Democrat to Republican office-holders.
Rove has denied any involvement Siegelman’s prosecution, and the Canarys have denied any improper role in Siegelman’s prosecution. Simpson went on to give sworn testimony to House Judiciary Committee staff on September 14, 2007, and appear on a CBS 60 Minutes program in February2008. For the latter, she says she wore a brown hair disguise after her home and computers were destroyed by a suspicious fire in 2007, and she was deliberately run off the road, resulting in a total wreck of her car.
Her targets have vigorously disputed her claims in affidavits or media interviews. In a House Judiciary Committee hearing in 2007, for example, Alabama’s Gov. Bob Riley’s son Robert “Rob” Riley and former Alabama Supreme Court Justice Terry Butts released sworn statements saying they were not on the November 2002 conference with Simpson. This is the call conference that she had said focused on Siegelman as a political threat.
In her congressional testimony, she said that her fellow Republican volunteer and occasional business colleague Rob Riley had told her in early 2005 that Fuller “hated” Siegelman for getting him audited in the pension “backlogging” case. “He said that Don Siegelman has caused Fuller to get audited,” she testified of her conversation with Riley. “That’s what Fuller thought. He hated him for that.” Simpson’s testimony was that Riley also told her during that that Fuller was going to be picked as judge to “hang” Siegelman ─ a claim denied by Riley in his affidavit, where he said he’s never met Fuller.
Fuller Imposes Sentence
After rejecting claims of bias, Fuller on June 26, 2007, sentenced each defendant to terms of approximately seven years in prison apiece, with no credit for any good works in their long careers.
Saying Siegelman deserved no leniency or consideration even for the jury’s many “not guilty” verdicts, Fuller ordered the defendants’ immediate removal from the court in shackles, photos of which were widely disseminated by Alabama’s news media. Fuller also forbade the customary appeal bond for white-collar defendants or the chance for Siegelman and his co-defendant to say farewell to their families.
Two weeks later, 44 former attorneys general representing 40 states petitioned Congress to investigate the Siegelman case just two weeks after Fuller sentenced the defendants.
In February 2008, a CBS 60 Minutes segment featured both Simpson and Arizona Attorney Gen. Grant Woods, a Republican then co-chairing John McCain’s 2008 GOP Presidential Campaign.
Woods and CBS reporting provided much of the program’s impact. “I haven’t seen a case with this many red flags on it that pointed towards a real injustice being done,” Woods told the CBS audience. “I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair-and-square. This was a Republican state, and he was the one Democrat they could never get rid of.”
Also, CBS reported a misconduct allegation against the prosecution regarding its star witness, a former Siegelman aide named Nick Bailey who was seeking leniency from his 10-year sentence for unrelated bribery convictions. CBS quoted Bailey as saying prosecutors coached him 70 times pre-trial for his testimony with none of the interview notes provided to the defense, as legally required.
Siegelman, who was placed in solitary confinement for a month, and his co-defendant Scrushy have found continuing support by the former attorneys general. Woods and 53 other former top state law enforcers argued unsuccessfully to the appeals court last year that the kind of donations arranged by Scrushy to a non-profit followed by a government appointment have not been considered criminal in the past.
But in 2008, the Bush Justice Department endorsed Fuller’s argument that no qualified person would question the judge’s fairness. The brief was co-signed by Alabama prosecutors and the Department’s Public Integrity Chief William Welch II. Welch is the same official whose office led the prosecution against former Alaska Sen. Ted Stevens on corruption charges. The Stevens conviction was dismissed after U.S. District Judge Emmet G. Sullivan, a Democrat, sharply criticized prosecutors.
On March 6 of this year, the Eleventh Circuit appeals court vindicated the Siegelman prosecution by affirming five of seven jury convictions. The all-Republican panel dismissed as “untimely” claims that Fuller might be biased, without addressing the substance of the claims. The panel wrote just over a page of its 68-page decision on the recusal issue. It said, “Scrushy’s motion was untimely, based upon information readily available to him prior to trial, and has all the earmarks of an eleventh-hour ploy based upon his dissatisfaction with the jury’s verdict and the judge’s post-trial rulings.”
One of the judges writing the unsigned opinion was Chief Judge James L. Edmondson, who in 2003 had signed the transfer that removed Fuller from the Murray case following Weeks’s affidavit demanding that Fuller recuse himself because of backlogging stemming from the same Doss Aviation connections that Scrushy learned about only in 2007 after his trial.
To analyze the judicial conflicts issue two years ago, Harper’s columnist and Columbia University law professor Scott Horton interviewed Georgetown University Law Center Professor David Luban, a legal ethics expert. “What amazes me about these facts,” Luban said, “is that they combine past political activism against the governor, a possible grudge against the governor, and the judge’s company’s financial dependence on the government’s good graces.”
Of the various claims against the judge, Luban concluded: “Taken together, we have a perfect storm. Under these circumstances, impartiality would take superhuman self-control, and we don’t expect judges to be superhuman. The recusal standard is designed so that we don’t have to expect it.”
Fuller seems to have ignored this and a dozen other Harper’s on-line columns by Horton under such titles as, “Judge Mark Fuller: A Siegelman Grudge Match?” and the “The Pork Barrel World of Mark Fuller” criticizing Fuller’s decision to remain on the Siegelman case.
Horton mocked the judge’s claim that he held a routine, passive investment in a company that happens to receive contracts that are competitively awarded: “Fuller would have us believe that the process of issuing these contracts is divorced from the political world in Washington. That’s absurd.” Horton’s 2007 work also reported Weeks’s 2003 affidavit. Horton wrote that he sought a response from Fuller on the allegations but could not obtain one.
Yet Fuller’s position and the federal appeals court opinion rejecting bias on timeliness grounds find at least some support from outside observers.
Gillers, a law professor at New York University School of Law and a legal ethics expert, says that defendants bear a heavy burden: They must show that they could not reasonably have been expected to learn the relevant scope of Fuller’s financial interests from his judicial disclosure forms or elsewhere and then follow the leads. Gillers described a half-dozen relevant questions to ask in deciding whether in the Siegelman case the failure to seek recusal sooner should be excused and, if so, whether reversal is then warranted: First is whether Fuller’s interests in his companies could reasonably have been discovered by looking at judicial disclosure forms pre-trial. Even if the forms would not have alerted Siegelman to Fuller’s interests, Gillers says, that would only excuse his pre-trial failure. A court would then want to know the sizes of the companies’ deals at the time of trial and Fuller’s personal financial stake in these deals. Other expert views, including excerpts from the court opinions and litigant filings in the Siegelman case, are summarized in a separate article at http://www.eagleviewdc.com.
On the political front, the House Judiciary Committee continues its investigation of vehement allegations that the Bush White House targeted and fired Democratic district attorneys around the country and pushed political prosecutions such as Siegelman’s. The committee is expected to interview Bush adviser Karl Rove in June about allegations he helped orchestrate politically motivated prosecutions of Siegelman and others across the nation. Rove reportedly testified today, May 15, to a federal grand jury investigating the firing of U.S. attorneys nationally. That investigation is led by Connecticut’s Republican-appointed U.S. Attorney Nora Dannehy.
Siegelman supporters have launched a nationwide letter-writing campaign begging the Obama administration’s new Attorney General Eric Holder and Congress to provide parity between their oversight of the Ted Stevens and Siegelman cases. Holder said during an April 9 press conference that he didn’t have any reviews underway of Siegelman’s prosecution. Siegelman himself is spearheading that intensifying lobbying effort to persuade the Justice Department to intervene.
And yet, despite his pleas, federal intervention seems unlikely, as reported last week by the Huffington Post. The Justice Department was quoted as saying there is virtually nothing it can do when it comes to Siegelman’s appeal. “Because Mr. Siegelman has requested the full Eleventh Circuit Appeals Court to review the recent ruling by the three-judge panel, the Department will continue to litigate this matter in the courts, not in the media,” said DOJ spokesperson Laura Sweeney. “The decision whether to hold an en banc hearing is the court’s, not DOJ’s.”
Weeks believes that Attorney General Holder finds it politically indelicate so far to step into Siegelman’s case, especially so soon after he condemned the prosecution of former Sen. Stevens. “If it’s one case of misconduct, authorities can look like heroes for investigating it. If it’s two, they’re opening the floodgates for reviews of all their questionable conduct.”
But regardless of what happens to Siegelman’s case politically or legally, Weeks says Fuller’s position as a judge still needs to be investigated to determine whether he should be impeached.
“There needs to be oversight beyond that appeals court,” Weeks concludes. “They really contained the problem pretty well up to now. But there’s no statute of limitations for impeachment, and this case shouldn’t end with a new judge and new trial, or dropped charges against Siegelman and Scrushy,” he says.
“I’ve been a fan of good judges for my entire 28 years as a lawyer,” he says. “But when you get a bad one, with all the power that they hold, that’s about as close to the devil here on earth as you can find.” ###