Archive for the ‘Don Siegelman, Jill Simpson, Priscilla Duncan’ Category

Obama Should Learn From Artur Davis Debacle

June 10, 2010

U.S. Rep. Artur Davis

The full story has yet to be written about last week’s rout of favored Democratic candidate Artur Davis in the Alabama gubernatorial primary.

Little-known Agriculture Commissioner Ron Sparks ran to the left of the better-funded Davis and trounced him by a 62-38 margin even though Davis was his state’s senior Democratic congressman and enjoyed a close relationship with President Obama, whose Harvard Law School studies overlapped by a year.

The corporate-owned media know that the Davis defeat is big news, as shown by two stories in the June 6 Washington Post alone, here and here.

But this is mostly horse-race coverage about winning. The MSM are reluctant to scrutinize the substantive issues, the campaign’s deep intrigues, or the White House view that it should recruit Republican-lite careerists like Davis for open seats in conservative or swing districts. Most of these stories are like a cake missing salt or sugar.

My take:

In one of the reddest of the red states, Sparks ran an issue-oriented campaign that offered solutions to the hopes and fears of voters threatened by further job loss, inadequate health care, gambling as a job-creator and source of government funding, and, most recently, the horror of the BP’s oil drilling catastrophe.

Furthermore, significant segments of the Democratic base suspected Davis of making self-serving deals with their Republican enemies to help his own career.

True, Davis was burdened also as an African-American running in the onetime “Cradle of the Confederacy,” which also has the highest white population percentage of any Deep South state.

But this was not a race-determined election. Sparks managed to beat Davis in many heavily African-American districts. Some were within his opponent’s congressional district, which has been gerrymandered to include Birmingham with the rural Black Belt to help minority candidates.

On June 3, I wrote Why Alabama Democrats Rejected Centrist Artur Davis, Obama’s Pal. It noted that Sparks won the support of all four of the state’s major black political organizations while Davis was winning endorsements for the primary from reliably Republican major newspapers.

Alabama Democratic Conference Chairman Dr. Joe Reed, for instance, was quoted as saying:

It’s no secret that Davis is the preferred opponent of the Republican Party. This may be because he will be the most easily defeated Democrat, or because he is the most Republican of the Democratic candidates.

Also, Davis was too clever by a half in turning his back on Alabama’s most recent Democratic governor, Don Siegelman, after Siegelman was framed by the Bush Justice Department on corruption charges in 2006.

Last summer, I received what I believe to be reliable information that Davis, with encouragement party leaders in Washington, worked out a deal to keep Bush-appointed U.S. attorney Leura Canary running the Middle District office that prosecuted Siegelman. In return, Davis received support for his campaign from her husband Bill Canary, CEO of the Business Council of Alabama (BCA). Davis denied the tale and it never reached mainstream media.

But enough people in Alabama were getting the picture by Internet and word-of-mouth so that I predicted last July that Davis would never be elected Alabama governor.

After my article last week I received as feedback a document written by a well-connected, white Alabama Democrat entitled, “10 reasons Artur didn’t make it, based on voters’ perceptions.” For three years, I’ve found the source to be reliable. So, I pass on the list, edited slightly for space and privacy reasons, and with a warning that I’ve not personally confirmed each claim:

1. He’s arrogant and took black voters for granted.

2. He abandoned Siegelman and quit the House Judiciary Committee. Siegelman is still a hero to black voters.

3. He took money, $4,500, from BCA Leader Billy Canary. Lobbyists have said for two years that Artur would let Leura stay in office until she could get her federal retirement in exchange for a BCA endorsement. Now, Leura is launching new indictments aimed at Democratic officeholders in seats where Republicans may be able to take over. Most Democrats see this as Artur’s fault.

4. Late in the campaign, he was accused of keeping the Middle District U.S. Attorney’s seat open for himself.

5. He didn’t campaign much and sent a flock of young white kids to the Jefferson-Jackson Day event instead of showing up.

6. His rejection of the Health Care bill and its reconciliation companion were shocking to his base.

I’m going to skip my correspondent’s specific allegations in factors No. 7 and 9, which involve widespread rumors (at least among party insiders) of Davis romantic activities outside of marriage, plus his supposed special deference for two major Alabama companies.

The larger point is that politicians now need to understand that allegations once considered off-limits are going to get vastly more scrutiny during times when so many voters are financially devastated, hurt or angry.

And speaking at least for myself, my research has shown that Davis cynically cooperated in a self-serving sellout of Bush-era political prosecution victims now rotting in prison for no good reason. The defendants and their families number far more than just Siegelman, with one study showing them to be 46 percent African American nationwide. So by any reasonable standard of proportionality, whispers about Davis don’t make him a victim.

Another factor in the Davis defeat is the Democratic Party’s get-out-the-vote (GOTV) election-day machinery of the four black political groups and an overlapping network of black churches.

To understand what happened last week, it’s useful also to recall how Davis was propelled into office in a 2002 primary win. Davies won the help of heavy outside financing over black incumbent Earl Hilliard, who was perceived by a number of Israel’s U.S. supporters as not sufficiently supportive.

The fault lines continued Tuesday, with Hilliard’s son Earl Jr. winning both local and the Congressional Black Caucus endorsement to succeed Davis in Congress, but narrowly failing to qualify for a run-off against the better-funded front-runner Terri Sewell, a Harvard Law friend of Davis and a Jefferson County commissioner.

The level of intrigue in Tuesday’s election is illustrated by a news report that fake guide ballots angered Reed and the ADC showing Reed’s picture and Barack Obama’s, along with false endorsements of Davis and a congressional candidate from the fifth district. WHNT-TV in Huntsville reported the story as follows:

The idea of a fake guide ballot really irks Dr. Reed.

“This was an effort on the part of somebody to frustrate the ADC’s endorsement and try to frustrate the people who look to the ADC ballot for guidance,” said Reed, in a phone interview….These evil doers are out there plotting, trying their best to undermine ADC and frustrate black voters….I think we’ve got to expose them and when we can, prosecute them.”

To be sure, it’s not clear who might have distributed the flyers, and elaborate tricks can come from anywhere on election days.

A larger lesson developing from all this is that political leaders in the national Democratic Party – and the pundits who cover them – should understand that the Davis debacle in Alabama illustrates how hungry the public is for real change that helps people.

Democratic leaders who take the base for granted do so at their peril, as House Judiciary Committee Chairman John Conyers said last summer in my blog last summer. I quoted the longtime Democrat from Detroit as predicting a one-term Presidency for his friend Obama unless he adopted harder-hitting and more progressive measures on such issues as health care.

One of the advantages of today updating my initial report from Wednesday on the Davis primary is the opportunity to draw on the apt observations of others. Among the most perceptive is Alabama journalist Glynn Wilson, who wrote a wrap-up for his Locust Fork News-Journal website entitled, “The Big Picture.”

Wilson, whose other stories last week included a breakthrough investigative reporting about how BP is using foreign nationals detained in U.S. prisons as a cost-effective strategy for shoreline oil clean-up, provided a tough verdict on the primary:

The political career of Birmingham Congressman Artur Davis is over. Davis made a show out of trying to become Alabama’s first black governor in one of the most bizarre and ridiculous political campaigns in the state’s history.

“I have no interest in running for political office again,” Davis confirmed to a reporter for a Birmingham paper. “The voters spoke in a very decisive way across every sector and in every section of the state. A candidate that fails across-the-board like that obviously needs to find something else productive to do with his life.”

Years ago as a young newspaper reporter at the Hartford Courant, I came across a group of colleagues bad-mouthing a once prominent publisher who’d just lost his job.

“This is kicking a guy when he’s down,” I remonstrated.

“That’s when you get your best shot at ‘em!!” responded one of the best journalists I’ve ever met.

In that spirit, let me close with an admirably concise overview by Huffington Post political columnist Sam Stein last week.

The strains between Davis and the black community, indeed, ran far deeper than conventional wisdom ever held. So much so that Roland Martin, a prominent CNN analyst, syndicated columnist and television talk show host felt compelled to email the Huffington Post a withering critique of the Alabama Democrat for ducking African-American media.
Davis lost, Martin told Huffington Post, because:

He was arrogant as hell. Davis pointedly refused to do black media. He turned my TV One show down six times; he didn’t do Tom Joyner’s show, with 8 million listeners – TJ is a Tuskegee native; he turned down dozens of requests from Joe Madison of Sirius/XM; and he didn’t do many others. He assumed because of his skin blacks would flock to his campaign. Sparks outhustled him and worked black voters in a major way.

Any smart politician knows to shore up their base. He was advised by top Democratic strategists, from the White House on down, to solidify his base. He never did that.

Last week, Davis was the fall guy for a failed, top-down, “moderate” strategy.

Who’s next?

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Federal Political Prosecutions Probed At March 25 Forum By Amerian University In DC

March 25, 2010

Citizen action to reform abuses in political and other arbitrary prosecutions is the topic of an American University forum that I’ll join March 25, entitled: “Just Justice: Political Actions by the Department of Justice.”

The two-hour session beginning at 5:30 p.m. features victims and independent experts describing how the public is hurt by politically motivated prosecutions against public officials on the local, state and national levels.  The forum is located in Ward Hall 2.  It’s free and open to the public.

I’ll describe why the public needs to energize their media surrogates to provide more oversight on Justice Department (DOJ) decision-making because of failures of courts and Congress.  I’m summarizing government misconduct in DOJ prosecutions of Republican former New York Police Commissioner Bernard Kerik and Democratic former Alabama Governor Don Siegelman that I documented in Harvard University’s Nieman Watchdog:

Prof. Donald C. Shields, Ph.D.

Another speaker will be University of Missouri Professor Donald C. Shields, who undertook the pioneering research that indicated the Bush Justice Department prosecuted Democrats at a 7:1 ratio in official corruption investigations during its first seven years. 

He’ll provide an update on his more recent research covering the full eight years of the administration, including that regarding racial patterns. 

His research includes 2007 testimony (below) before the House Judiciary Committee illustrating problems revealed by hundreds of cases across the nation.  Their targets had scant understanding of the parallels to their cases elsewhere until his research and a documentary film released last year by Project Save Justice, which was researched by its Vice President Gail Sistrunk and noted filmmaker John McTiernan, whose credits include Die Hard and The Hunt for Red October.  A sample of the Shields research is:

Here’s some additional background from a press release.  We need more events like this around the country, and this is a good start!  Contact me if you have ideas for a similar program in your area, and can help make it happen. 

About Prof. Donald C. Shields

Donald C. Shields (Ph.D., University of Minnesota, 1974) is Professor Emeritus, Department of Communication, University of Missouri—St. Louis. He currently serves as a Lecturer in the Department of Communication Studies, University of Missouri—Kansas City. His primary line of research has investigated symbolic convergence theory and communication.  He has authored or co-authored 10 books and more than 35 book chapters, and more than a dozen of his studies have been reprinted in other books and journals.  

About Andrew Kreig and Justice Integrity Project

Andrew Kreig is an attorney, author and commentator listed in Who’s Who in the World since the mid-1990s. As president of the Wireless Communications Association International for 12 years, he helped lead the advance of the broadband wireless industry worldwide.  He founded the Justice Integrity Project as a non-partisan organization to examine misconduct by federal prosecutors and judges and the consequences for the public.  Details.  # # #    

DoJ’s Attack On Former Gov. Siegelman’s Rights Threatens Election Rights For Many Across Nation

September 12, 2009

On Aug. 27, holdover officials from the Bush Justice Department filed 226 pages arguing that former Alabama Gov. Don Siegelman and his co-defendant have presented no evidence since their 2006 bribery convictions that justifies a hearing or new trial.

No evidence?

As too often in the past, DoJ officials look like they’re exaggerating to block justice and to protect themselves. By seeking to imprison Siegelman for 20 additional years, DoJ clearly seeks to end public debate about Alabama’s most prominent Democrat. He held that distinction for years, at least until he narrowly lost re-election in 2002 following still-mysterious Election night switches of 6,000 votes out of his column in a rural county after polls closed.

The all-out federal criminal prosecution launched against Siegelman in 2004 remains the centerpiece of unresolved evidence that Karl Rove used DoJ to target Democratic officials nationwide. In-depth public scrutiny of the DoJ’s high-ranking prosecution teams risks revelations about similar problems in hundreds of other disputed DoJ investigations that altered the nation’s political map during the Bush years.

In the long run, however, DoJ risks even more – including public confidence that it’s protecting our rights to fair elections and trials – if it shirks its responsibility to endorse a full hearing to clear the air.

New evidence since Siegelman’s 2006 trial includes claims of judicial bias and corruption, plus DoJ political prosecution orchestrated by Rove, judge-shopping, jury tampering, failing to comply with prosecutor recusal, firing a DoJ whistleblower, and suppressing evidence that DoJ tried to blackmail its central witness against Siegelman with a sex scandal.

Also, 75 former state attorneys general ─ the chief law enforcers from more than 40 states ─ made a bipartisan filing that is unprecedented in U.S. legal history to argue that Siegelman committed no crime by appointing a donor to a state post. Siegelman’s convictions centered on his 1999 request to HealthSouth CEO Richard Scrushy to donate to a non-profit foundation to improve Alabama’s funding for education via a state lottery.

Scrushy arranged two donations to the foundation. Siegelman reappointed Scrushy to an unpaid state board on which he’d served under three previous governors. A jury that reported deadlock finally found guilt on 7 of 32 bribery-related charges. The defendants received lengthy prison terms and heavy fines.

Last year, Siegelman, now 63, was released on appeal bond after a CBS 60 Minutes exposé about his prosecution. Scrushy, 53, remains in prison, with each of his convictions stemming from the donations to the education foundation that Siegelman helped create to counter millions in spending by casino owners allied with anti-gambling advocates.

Alabama’s Republican Party sniped at CBS reporting.

But former National Press Club President Robert Ames Alden, a Washington Post editor for 48 years who supervised coverage of many major stories before his retirement in 2000, found the coverage compelling. “The Siegelman prosecution,” Alden tells me, “is one of the worst miscarriages of justice that I’m aware of in the past half century in America.”

Denial Under Oath?
DoJ’s most recent filing falsely told presiding federal judge Mark Fuller that Business Council of Alabama CEO William Canary has denied under oath to the House Judiciary Committee that he schemed with “Karl” to remove Siegelman from Alabama politics. But no committee record exists of such a sworn statement, as noted by Alabama reporter Roger Shuler.

Canary, a former Republican National Committee chief of staff, is well-known in relevant quarters of DoJ. Many “loyal Bushies” remain in power after eight years of employment practices that included mid-term firings of U.S. attorneys who failed to use their powers for political prosecutions. News reports and litigation show that the Bush DoJ also relied heavily on politics in hiring and promoting career staff.

Canary is a longtime Rove ally who advised Alabama’s current Republican governor in his successful 2002 gubernatorial campaign against Siegelman. Canary’s wife Leura, shown below in her official photo, is Alabama’s U.S. attorney for the office that is prosecuting Siegelman. She remains in power despite the nation’s tradition that its 93 U.S. attorneys resign after a change of presidents.

Most of those accused of framing Siegelman deny claims by the defense, whistleblowers and investigative reporters. But none of the denials have been in public under oath and subject to cross-examination. Some have been comments to the press, and many others have been in affidavits that can avoid key issues.

Rove and Harriet Miers, the highest-ranking of the Bush White House advisors accused of improperly interfering at DoJ, were interviewed in private this summer by House Judiciary Committee staff and a Congressman from each party. But the interview rules did not require an oath. Upon release of the transcripts Aug. 11, Rove claimed vindication in his Wall Street Journal column.

A Real Probe Needed
But Rove and Miers asserted memory loss many times on key questions during their interviews, and Rove misled his Journal readers by falsely claiming that Alabama whistleblower Dana Jill Simpson has never testified.

An attorney, Simpson voluntarily testified in 2007 under House Judiciary Committee staff cross-examination. Behind closed doors, she swore that a prominent fellow Republican predicted in early 2005 that Siegelman would be re-indicted later that year after collapse of the government’s first case against him. Also, she swore that she heard that Siegelman’s new prosecution would be steered to the Bush-nominee Judge Fuller, who “hated” Siegelman and would “hang” him.

Rove’s spin on these kinds of post-conviction issues shows why this summer’s interviews should be just a first step in a more thorough probe and public hearing.

The Justice Department should live up to its name by welcoming cross-examination of witnesses under oath before a fair judge. Questions about this case and so many like it around the country will not be forgotten simply by imprisoning the defendants. Others care deeply, both because of defendant rights and our own.

My next articles will explore growing concerns around the country about such matters, including those being voiced by Republicans and libertarians. The national magazine for paralegals Know just published my in-depth profile Dissed and Dismissed about the courageous paralegal Tamarah Grimes. Working on the Siegelman case, she was fired by DoJ in June after she went through official whistleblower channels in 2007 to allege DoJ prosecution misconduct.

In the meantime, I read comments with great interest and look forward to learning your suggestions (including, yes, your criticism) and ideas for next steps.

Follow Andrew Kreig on Twitter.

Did DoJ Blackmail Siegelman Witness?

July 21, 2009

The top government witness in the 2006 federal conviction of former Alabama Gov. Don Siegelman on corruption charges is providing new evidence that prosecutors failed to fulfill their legal obligation to provide the defense with all records documenting witness-coaching.

Former Siegelman aide Nick Bailey swears that prosecutors failed to reveal to the defense details of most of his two dozen prep sessions before he became the Bush Justice Department’s key witness that former HealthSouth chief executive Richard Scrushy bribed the former Democratic governor. Scrushy arranged $500,000 in donations to an education non-profit fostered by Siegelman to increase school funding. At trial, Bailey suggested the donations were required by Siegelman to reappoint Scrushy to a state regulatory board. The defendants, bolstered by legal experts and whistleblowers, claim that they were framed to eliminate Siegelman from politics.

Even more explosive than an alleged failure by prosecutors to comply with federal trial procedures is a sworn statement by Bailey’s current employer Luther “Stan” Pate, another Alabama businessman.

“Nick was told that the government was working to prevent the publicizing of an alleged sexual relationship between Nick and Don Siegelman,” Pate wrote. “Nick also told me that one of the agents working the Siegelman/Scrushy prosecution asked him whether he had ever taken illegal drugs with Governor Siegelman or had a sexual relationship with him. These comments had a dramatic effect on Nick, and, in my observation, added significantly to the pressure he felt to go along with whatever the prosecutors wanted him to say.”

Allegations of sexual blackmail by the government are among the evidentiary exhibits that support legal arguments by Scrushy and Siegelman seeking a new trial based on new evidence from whistleblowers and investigative reporters.

The filings reviewed July 20 but filed late June 26 include a report by the Investigative Group International (IGI), which some nickname “The President’s Investigator.” This is because IGI Chairman Terry Lenzner was a Watergate prosecutor of former President Nixon and later helped defend former President Clinton during impeachment. IGI says that it was hired in April “by counsel for the defense.”

IGI Vice Chairman David Richardson’s affidavit said that Bailey told him and Lenzner during meetings in June that Bailey “did not believe that Governor Siegelman had been bribed by Mr. Scrushy,” among other contradictions of Bailey’s themes during Siegelman’s second trial. Bailey, now free after being sentenced to 18 months in prison on bribery charges unrelated to Siegelman, had been facing a far longer term before he agreed to cooperate with prosecutors against Siegelman.

Pate wrote in his affidavit that he befriended Bailey after the former governor’s aide told him in the spring of 2002 that “he was in trouble with the law.”

“It was obvious to me that he was a man in trouble with heavy burdens,” Pate wrote in his affidavit. “I believe in giving people second chances” but “would not condone any breaking or bending of any laws or rules whatsoever….” Pate said Bailey’s office was next to his, and that he observed Bailey on “an emotional roller-coaster” trying to please prosecutors. He said that Bailey feared for his safety both in and out of prison, as well as for the security of his friends and their reputations.

Bailey said in his affidavit that he was brought to Maxwell Air Force Base in Alabama in 2004 some two years after he began cooperating, and was told there by federal prosecutor and Air Force Reserve Col. Stephen Feaga that the government was “starting over” on the Siegelman investigation on the basis of orders from “Washington.”

In 2007, allegations of massive irregularities in the investigation and trial of the Siegelman case became nationally prominent just after the U.S. attorney firing scandal. This was because Alabama attorney and Republican campaign volunteer Dana Jill Simpson filed an affidavit with Siegelman’s sentencing judge, Chief U.S. District Judge Mark E. Fuller of Montgomery. In her sworn statement and in her testimony before the House Judiciary Committee staff, Simpson claimed that fellow Alabama Republicans conspired to remove Siegelman from politics in coordination with what she understood to be White House political strategist Karl Rove and a federal judge who “hated” Siegelman. Rove has denied wrongdoing to the news media. His responses to congressional investigators this month are not yet public.

In February 2008, a CBS 60 Minutes segment featured former Arizona Attorney Gen. Grant Woods, a Republican then co-chairing John McCain’s 2008 GOP Presidential Campaign. Woods said the federal prosecution was clearly political to remove a Democrat from public life. In the show, the then-imprisoned Bailey first made his allegations that he had been coached to provide testimony against the defendants without the required disclosure.

Government officials have maintained throughout the case so far that their conduct has complied with legal and ethical requirements. No officials were available near close of business on July 20 to comment on the allegations by the co-defendants, each of whom is under a seven-year prison sentence, with massive fines. Siegelman is free on bond.

Prosecutors recently asked for a 20-year sentence for Siegelman, 63, upon resentencing by Fuller, who is alleged by the co-defendants to have tolerated prosecution misconduct. Scrushy, 56, is serving his sentence while claiming that he was framed to imprison Siegelman. Scrushy says also that he refused lighten his own sentence by making false accusations against Siegelman.

Events are coming to a head. Fuller has called for final briefs by next week amidst a growing nationwide campaign by grassroots activists and legal experts critical of the prosecution. But an all-Republican federal appeals court panel affirmed the convictions in March, aside from dismissing two of seven charges against Siegelman for lack of evidence. The predominately Republican full court of appeals denied a rehearing.

Huffington Post has published several recent investigative reports on the case. One by me on May 15 was entitled, “Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company.” The article alleged conflicts of interest by Fuller, who was named to preside over Siegelman’s second trial in Montgomery after the government dropped corruption charges in an earlier trial in 2004 before Chief U.S. District Judge U.W. Clemon of Birmingham.

Fuller was a Republican leader in Alabama and CEO of the Air Force contractor Doss Aviation Inc. before his 2002 appointment to the bench. Fuller has said he’s the victim of political criticism, has ruled that he has acted fairly at all times and last month wrote me that his judicial role prevents him from commenting on specifics. The Justice Department has argued that not one reasonable person in the U.S. would question Fuller’s fairness.

After retirement this year, Clemon wrote U.S. Attorney Gen. Eric Holder that the 2004 case against Siegelman was the most unfounded that he’d observed in his nearly 30-year judicial career, and that prosecutors engaged in judge-shopping to steer the case away from him and toward Alabama’s Montgomery-based Middle District.

On June 26 at the National Press Club, Clemon amplified his observations during a three-hour conference about allegations of selective prosecutions by the Justice Department nationally under the Bush Administration. Among the suspicious elements of Siegelman’s prosecution that Clemon cited were changes in Bailey’s testimony between the first and second trials. In nationwide cablecasts, C-SPAN provided video coverage here of the judge’s remarks and 12 other speakers, including me.

On June 1, Justice Department paralegal Tamarah Grimes followed up her 2007 criticisms of the prosecution by writing a nine-page letter to the Attorney General. A Republican, she had served as the government’s top in-house paralegal during the Siegelman/Scrushy prosecution, although she not was not part of the team attending court.

The Justice Department fired her on June 9 after alleging that she made secret tape recordings about her allegations. She has denied making tape recordings, protested what she regards as punitive attempts to indict her on false charges, and is seeking a hearing before House Judiciary Committee officials who have been unsuccessful since last year in asking the Justice Department to respond to her allegations. The Justice Department has said she deserved to be fired, and it will not comment further for privacy reasons.

Among those contacted for comment late today for this story without success were Alabama’s Middle District U.S. Attorney Leura Canary and Acting U.S. Attorney Louis Franklin. Franklin was designated to supervise the Siegelman case in coordination with Washington officials because Canary’s husband William Canary was a longtime political foe of Siegelman. Among claims by Grimes was that Leura Canary remained in charge of the Siegelman prosecution, leading an all-out effort to secure and maintain convictions.

At this point, it might be helpful if I morph from a hard-news reporter (as I was for five years covering the Justice Department fulltime for the Hartford Courant) into an opinion commentator, who has covered this story and its parallels elsewhere around the U.S. for eight months.

First, shame on me for missing these explosive affidavits until now. The affdivaits were docketed three weeks ago as part of the thick defense filings that I read and posted on my website. But I failed to dig a step further into the evidence. Those of us who are web-based journalists commonly dis the mainstream media (aside from scattered exceptions such as the New York Times ) for failing to cover the Siegelman/Scrushy prosecution with any depth. But this time-delay is a reminder that everyone is vulnerable, and that many other stories are doubtless being overlooked.

Second, these allegations of sexual improprieties have been well-known for years by Alabama reporters, sources and outside national investigators, as have many similar claims of sex sandals involving other prominent officials in both parties in the state. That little of it has come out until now should not be construed, in my opinion, to mean that this is a unique situation.

Far from it. Such situations flourish because of the political and journalistic traditions that news of this sort is suitable for insider bargaining and other leverage, not for the public. Powerful people and their organizations collect this kind of rumor and any relevant evidence like kids collect baseball cards. But it’s rarely shared. This is partly because of what military strategists might call “mutually assured destruction.” Partly, it’s because blackmail (or what might be called “protection” in more polite circles) loses its power if too widely disclosed.

But the rules are changing at this particular juncture in the Siegelman/Scrushy case. As the endgame approaches, the stakes include prison for defendants, or the possibility of career disgrace or worse for those in authority. In case you’re wondering, it’s not simply bad manners if authorities frame suspects, send them to prison, and impoverish their families.

The gloves are off. Expect to hear much more about this case in the national media over the next few weeks, with 60 Minutes again working to stay in the lead. Whistleblowers like Tamarah Grimes, Jill Simpson and others have created an extraordinary drama inspiring many other defendants in such cases across the country, as well as their families. These include such Republicans as twice-acquitted former Mississippi Supreme Court Justice Oliver Diaz. These defendants increasingly argue that their prosecutions were political, as Diaz did during his eloquent remarks June 26 at the National Press Club and preserved by C-SPAN.

Part of the drama over the next few weeks in the Siegelman case will be whether the presiding judge Fuller gets out of it quickly by either recusal or by blaming prosecutors for misconduct. Alternatively, he and the Justice Department could continue to stand tough, admitting no error. Up to now, they’ve argued that the public need be concerned only about crimes by Siegelman and Scrushy that deserve long prison time, and no mercy. In 2007, Fuller had the defendants hauled off to prison in shackles in front of news photographers, with Siegelman put in solitary confinement for good measure.

Think about it. You might not want to be Don Siegelman today. But would you like to be one of those who led his prosecution?

As Rove Testifies About Firings At Justice, Why Did DoJ Fire Whistleblower?

July 10, 2009

New questions are surfacing about political intrigue at the U.S. Justice Department after former White House political strategist Karl Rove provided his long-awaited responses to House Judiciary Committee staff Tuesday about allegations that he pressured prosecutors to target Democrats nationally.

Few details have emerged about Rove’s questioning on such topics as the 2006 dismissal of nine U.S. attorneys for political reasons.

By remarkable coincidence, however, the Justice Department separately confirmed that it has fired Alabama whistleblower Tamarah Grimes. She was the top in-house paralegal for the prosecution team that won corruption convictions in 2006 against former Alabama Gov. Don Siegelman, a Democrat, and HealthSouth CEO Richard Scrushy.

Grimes later provided her Justice Department superiors and Congress with evidence that the rights of the defendants were violated. Siegelman and Scrushy cited her revelations heavily in their recent motions for a new trial based on new evidence.

In an interview July 8 for this article, Grimes alleged a bone-chilling conspiracy to frame the defendants for political gain. She says her experiences opened her eyes to parallels outside Alabama and to the ruinous consequences for federal government employees of protesting injustice.

“No one helps you,” says Grimes, who adds that she was browbeaten with threats of false criminal charges by her superiors and investigators alike. She says Congress needs to enhance protections for whistleblowers to prevent wrongdoing by high-level government officials.

Justice Department spokesman Tracy Schmaler responded, “The Department takes seriously its obligation under the whistleblower law, and did not violate it with regards to the termination of this employee. For privacy reasons, it would be inappropriate to comment any further on this personnel matter at this time.”

In related news Tuesday, Alabama’s senior Democratic Congressman Artur Davis denied reports that he seeks to extend the term of Republican U.S. Attorney Leura Canary, Grimes’s boss in the state’s Middle District, in order to win Republican and business support for his 2010 campaign for governor.

Addie Whisenant, the congressman’s press secretary, said any suggestion that Davis wants a Republican is “absolutely absurd.” She said that the state’s two Republican Senators, Richard Shelby and Jeff Sessions, have blocked the congressman’s nominations of Democrats. Whisenant declined to say why Republicans can block Presidential appointments that are typically generated through the state leadership of the President’s party.

Alabama journalist Roger Shuler has written back-to-back stories on his Legal Schnauzer blog summarizing reports of the congressman’s goals, and breaking news of the Grimes firing.

Alabama attorney Dana Jill Simpson – herself a prominent whistleblower after her sworn testimony in 2007 that fellow Republicans framed Siegelman to prevent his re-election as governor – on July 7 urged friends to pressure Davis until he publicly asks the Obama administration to fire Canary. Canary remains in office as one of many Bush holdovers helping run to the nation’s federal justice system despite the tradition that political appointees resign upon a change in administration.

Only seven of the nation’s 93 U.S. attorney posts have Democratic nominees, with none of them confirmed, according to the latest statistics from the Justice Department. This means that 38 of the 93 U.S. attorney offices – which have vast power over civil and criminal litigation in their districts – are still controlled by Bush Presidentially appointed political incumbents who survived its reputed internal political purge in 2006, and last November’s landslide Democratic election victory based on the theme of “change.”

Canary’s husband William is president of the politically powerful Business Council of Alabama, and is one of Rove’s closest friends after many years working together on Republican strategies. And it was Canary whom Simpson identified as leading a conference call in 2002 suggesting that Siegelman would no longer be an election threat to Republicans in Alabama because federal officials would prosecute him.

Siegelman was prosecuted in successive indictments in 2004 and 2005. Canary has denied Simpson’s allegations against him.

Simpson said her testimony about political prosecutions in Alabama encouraged defendant families around the country to contact her with similar tales of abusive prosecutions destroying the defendant’s political careers and family finances for no legal valid reason.

She said she passed on their information for the past two years to the relatively few journalists willing to pursue investigative leads, with law professor Scott Horton of Harper’s providing the most numerous and comprehensive follow-ups.

Horton and I were among 13 speakers speaking June 26 at an unprecedented conference at the National Press Club on selective prosecutions by the Bush Justice Department. Legal experts and defendants said that hundreds of defendants may have been targeted unfairly on corruption charges.

University of Missouri at St. Louis researcher Dr. Donald Shields has published a study finding that the Bush Justice Department investigated elected Democrats by a 7:1 ratio compared to Republicans.
Citing short notice and a need for confidentiality, the Justice Department declined to send a speaker.

But former Reagan Administration Associate Deputy Attorney Gen. Bruce Fein and retired Chief U.S. District Judge U.W. Clemon of Birmingham described widespread abuses of power. Clemon said the 2004 prosecution of Siegelman was the most unfounded criminal case he observed in nearly 30 years on the federal bench.

C-SPAN cablecast the forum seven times, with excerpts available on its website.

In an interview July 8, Grimes said she tried her best to use legally protected channels to assure justice. “I am a Republican. I believe in the U.S. Constitution, and that what happened in Montgomery, Alabama with the Siegelman/Scrushy prosecution is a travesty of justice.”

She said the prosecution’s misconduct included contact with jurors during their deliberations without advising the defense, pressuring of witnesses to change their testimony, and Canary’s continued supervision of the prosecution while publicly claiming that she was recused because of her husband’s longtime political opposition to Siegelman.

“In July 2007, I filed whistleblower disclosures with several agencies,” she said. “My thought was to get the word out to as many oversight agencies as possible.

“When Leura Canary found out which I had done, she was livid. She called me into her office to threaten and intimidate me. It went downhill from there.”

Grimes said that she was continually threatened with criminal prosecution on bogus charges of denying that she had made secret tape recordings, and then was placed on administrative leave. She was fired after writing a letter June 1 to Attorney General Eric Holder outlining prosecution misconduct against Siegelman.

“Selective prosecution is a tool that Leura Canary uses at will,” said Grimes of Canary. “She has enjoyed a great deal of success thus far. No one has been able to overcome what she calls ‘powerful friends’ in Washington. My question is: What is still pulling the strings almost six months into a new administration?”

Simpson says of Grimes, whom she’s never met or tried to contact, “I think that woman’s a hero. She came forward knowing she was going to get fired in all likelihood. Isn’t it amazing that the big-shots who sent innocent people to prison around the country are still on the government payroll?”

Simpson was the original whistleblower bringing national attention to the Siegelman case. In February 2007, she reached out to Scrushy and his legal team as they prepared for sentencing.

Scrushy had been convicted on corruption charges for arranging donations to an education non-profit at Siegelman’s request in 1999 and then being reappointed by Siegelman to a state regulatory board on which Scrushy had served under three previous governors. The defendants have claimed that such appointments are routine in politics and not illegal, but heavily Republican courts have rejected their arguments.

Simpson went public with an affidavit in May 2007 outlining a conspiracy to frame Siegelman by Republicans, for whom she had performed volunteer opposition research for years against such Democratic targets as Siegelman. Rove and each of those that she has named have denied Simpson’s allegations, as previously reported on the Huffington Post.

Despite Simpson’s affidavit, Chief U.S. District Judge Mark E. Fuller of Montgomery sentenced the defendants to prison terms of seven years apiece. The judge ordered the defendants to be taken immediately from the courtroom in shackles to begin serving their terms, with Siegelman put in solitary confinement that limited his contact with the media and supporters.

Siegelman was released on bond pending appeal, and is now facing a sentence of 20 years in prison following denial of his appeals. Scrushy remains in prison.

Siegelman Deserves New Trial Because of Judge’s ‘Grudge,’ Evidence Shows

May 16, 2009

$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.

Outside Experts
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.

What’s Next?
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.” ###

Tech Radio: Federal Grant Update & Alabama Whistleblower Challenges Judge

March 21, 2009

 

WASHINGTON, DC (March 12, 2009) – Today’s wireless edition of My Technology Lawyer Radio will focus on the hot topics of federal applications for stimulus spending grants (partly in such broadband areas as wireless), plus major new developments in the controversial federal prosecution of former Alabama Gov. Don Siegelman on corruption charges.

This week’s guests for the weekly show webcast at 12 noon (Eastern) by co-hosts Andrew Kreig and Scott Draughon will be:

 

Drew Clark, executive director of Broadband Census.com.  It charts broadband deployments and policy throughout the U.S, and focuses on how both incumbent service providers and new market entrants seek a piece of the $7.2 billion federal stimulus funds for broadband.   He’ll describe the federal government’s seminar this week on how to obtain such funds and preview his group’s webinar March 19 on how the money will be allocated.  Also, he’ll comment on the March 11Washington Post story headlined, “Stimulus Applications Could Overwhelm Grants.gov.”

Priscilla Black Duncan, an attorney who represents Alabama attorney and whistleblower Dana Jill Simpson.  Duncan will discuss a federal appeals court decision last Friday confirming most of corruption charges against former Alabama Gov. Don Siegelman despite Simpson’s claims that Siegelman was framed. 

 

My Technology Lawyer Radio will continue with its cutting-edge coverage of Siegelman’s prosecution in Alabama, one of the nation’s most controversial in recent years.  A witness in 2007 before staff of the U.S. House Judiciary Committee, Simpson filed an affidavit nearly two years ago claiming irregularities in the prosecution.  So did a group of 54 former attorneys generals in a friend of the court brief last May urging the appeals court to reverse Siegelman’s conviction. 

Targets have denied the claims, as did the appeals court last week in affirming most of the charges against Siegelman stemming from 1999 when he was Alabama’s last Democratic governor. “This is an extraordinary case,” the Siegelman appeals court judges wrote.  “It involves allegations of corruption at the highest levels of Alabama state government.”

 

Today’s show begins with a round-up of news related to wireless technology law and policy, addressing such issues as  “Obama Signs Spending Bill, Vowing to Battle Earmarks”.

 

A Listen Live! link connects to today’s radio stream, plus archived past shows.  Radio listeners can call-in questions at 866-685-7469 or by email: radio@MyTechnologyLawyer.com. 

 

About Broadband Census.com

BroadbandCensus.com provides news and information about broadband access and deployment.  Founded in January, 2008, it aims to publish the most timely and topical news on broadband, from the broadband stimulus package to proposals for a universal broadband fund.  It provides comprehensive public and transparent collection of data about local broadband speeds, prices, availability, reliability and competition.  Help fill the broadband data gap by “Taking the Broadband Census.”  Details: www.broadbandcensus.com.

About Priscilla Black Duncan

Priscilla Black Duncan is principal at the firm P.B. Duncan & Associates, L.L.C. based in Montgomery, AL.  Before undertaking a practice in criminal and civil law, she was the consumer affairs director for the office of Alabama’s Attorney General, and was an editor and investigative reporter for daily newspapers.

 

About My Technology Lawyer Radio Show

Richard Scott Draughon is host and producer of the My Technology Lawyer Radio Show, which is affiliated with MyTechnologyLawyer.com — an on-demand legal service.  For details, visit: http://www.mytechnologylawyer.com.  Among other projects, he will be organizing cutting-edge sessions at the Technosium on March 26 in San Francisco.  Details: www.technosium.com. 

About Andrew Kreig

Andrew Kreig draws on work in business, law, government and journalism.  Former president of the Wireless Communications Association International from 1996 to last summer, he is an attorney, author and journalist who is a leader in several technology-related public affairs organizations.