Posts Tagged ‘Justice Department’

Jan. 28 Update Hosts ‘Three Felonies A Day’ Author Harvey Silverglate

January 27, 2010

On radio Jan. 28, I’m interviewing longtime Boston litigator and civil rights expert Harvey Silverglate to discuss his pioneering new book Three Felonies A Day on the DC Update edition of My Technology Lawyer Radio.

Listeners can access the show nationwide beginning at noon via the link at www.MyTechnologyLawyer.com/update, which also provides archives of previous shows I co-host with the show’s founder Scott Draughon.

The book’s subtitle is How the Feds Target the Innocent.  The theme is: The average professional in this country is unaware that he or she has likely committed several federal crimes each day.

Why unaware? Modern federal criminal laws have exploded in number, and have become impossibly broad and vague. National Journal legal columnist Stuart Taylor, Jr. comments, “Abetted by compliant courts and easily gulled media, the feds brand as criminals good people who intended no crime.”

The book shows how the federal executive branch is able to exercise a disturbing form of social control via selective prosecution. The book is winning praise from experts across the political spectrum, and deserves the attention of anyone worried that loss of constitutional rights affects politics and business. 

The show’s founder, business radio pioneer Scott Draughon, will begin the show with an overview of Washington policy news affecting business, politics and quality of life.  Scott’s asked me to join him in an additional a special hour-long discussion at 4 p.m. Jan. 28 because of major recent developments in Washington and around the nation.

Our very accomplished noon guest Harvey Silverglate summarized his book’s themes in testimony last September before a House subcommittee.  

“This book is written from the perspective of a trial lawyer who has seen these statutes wreak havoc with the law and with people’s lives, and threaten the balance between governmental authority and civil society,” he testified.  “The book contains some legal analysis, but primarily it is meant as a description of how vague statutes function, in practice, as a tool of terror and true prosecutorial harassment in the lives of ordinary as well as extraordinary people.” 

Silverglate continued:

I was readily able, from my own litigation experience as well as from research done on other cases, to pinpoint myriad inappropriate prosecutions of many an unwary innocent citizen in the medical  community, the medical device and pharmaceutical manufacturing industry, investment houses, bankers, lawyers, accountants and auditors, academics, artists, newspaper reporters, merchants, as well as public officials.  

The time has come, it seems to me, to reduce or eliminate – rather than to enlarge – the number of these affronts to liberty and fair treatment of our citizens.

I hope you can join us for an especially important program.  Your calls or email questions are welcome, of course.  Call-in with questions at 866-685-7469, or send emails to radio@MyTechnologyLawyer.com.  

Three Felonies A Day author Harvey Silverglate is counsel to Boston’s Zalkind, Rodriguez, Lunt & Duncan LLP. He is founder and co-chairman of the Foundation for Individual Rights Education, a columnist for the Boston Phoenix and a Cato Institute fellow.  His congressional testify last fall is available here.  In 1999, he co-authored The Shadow University. For details, visit here. Three Felonies a Day is available via Amazon.com here.

Listener advisory: Mac Listeners need the tool “Parallels” to access the Windows Media Player.

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Why Did Feds Persecute Celebrity Expert Cyril Wecht For Using Fax Machine? Who’s Next?

October 7, 2009

Like many government employees, Allegheny County Coroner Dr. Cyril Wecht of Pittsburgh sometimes sent faxes from his office on personal matters. On Feb. 12, 2002, for example, he sent a New Jersey group a bill for a speech.

Four years later, the Justice Department used that fax for one of 84 felony charges against Wecht, thereby forcing his resignation after 20 years. The charges included 27 felonies for sending personal faxes, along with allegations over mileage vouchers, office stationary, permission for students to study autopsies, and requests for staff help.

Nationally, more than 95% of those who are federally accused in the U.S. now plead guilty. But Wecht, widely known as a TV analyst on celebrity deaths, had the means to fight hard to clear his name and stay out of prison.

Dr. Cyril Wecht

Dr. Cyril Wecht

Court rulings and prosecution errors ended Wecht’s ordeal last June. By then, the 78-year-old had spent $8 million on legal fees over three years, putting him $6 million in debt currently. Authorities dropped the majority of charges against him just before trial in 2008.

Thus, most of the charges were about 23 faxes, whose total out-of-pocket cost to the county was calculated by the defense as $3.96.

Cases like this are creating bipartisan alarm nationally among legal experts who believe that DoJ increasingly abuses its vast powers. I’ve seen the change after covering DoJ fulltime as a newspaper reporter from 1976-1980 in DoJ’s better days, and now as a researcher of such cases nationally. Wecht and former Alabama Gov. Don Siegelman were among panelists at a recent forum on the topic, with video here.

Fear of DoJ abuses was also the theme of a remarkable conference I attended last week hosted by the free-market Cato Institute. A video of speakers is posted here. It’s well worth watching.

The conservative Washington Times columnist Tony Blankley introduced two authors of recent books about such problems. A former prosecutor, Blankley said that political leaders from both parties have for years enabled federal prosecutors to use vague laws to target individuals in an arbitrary fashion.

The most detailed evidence came from Boston defense attorney Harvey Silverglate, author of Three Felonies A Day: How the Feds Target the Innocent and a congressional witness Sept. 29.

His theme: The average U.S. professional unwittingly commits three felonies daily ─ thus enabling Feds to pick and choose whom to prosecute, with scant review by courts, defense attorneys and the news media. His book provides compelling case studies illustrated by defendants fighting to prevent their ruin from “creative” prosecutors using vague or seldom-enforced laws in health care, high-tech, legal affairs, financial services, labor, media and national security.

Another dimension comes from a recent Obama administration legal opinion that reaffirms government authority to review a federal employee’s electronic messages.

This suggests that the Feds will find it even easier than in a “fax” case to gather evidence against those who use workplace computers, cellphones and email for personal messages. Any probes would obviously capture evidence also about those who receive messages from government workers.

And this is not just at the federal level. We know from the Wecht case that the Feds assert jurisdiction to monitor employee messages within a county that receives $10,000 or more in federal funds. There’s scant reason to think the Feds wouldn’t scrutinize targets also at the city or town level.

Celebrity Death Expert
A Democrat, Wecht formerly chaired his party’s county committee and ran for the U.S. Senate. For more than 35 years, Wecht has also been providing TV commentary about the deaths of celebrities spanning the demise of Elvis Presley and Michael Jackson. Often controversial, he’s contradicted official reports that President Kennedy was assassinated by a lone gunman, and he suggests that JonBenet Ramsey’s father was a sex deviant involved in her death.

His blunt comments on local issues clearly irritated some officials who chafed also at his overlapping roles as a coroner, consultant, political organizer and medical school professor. As coroner, he earned $64,000-a-year, and resigned promptly after indictment. His successor’s pay was $175,000. That difference pays for lots of faxes and stationary.

As context, the Justice Department’s longtime official policy is to use its authority in careful proportion to the public interest. In a famous 1940 speech, Attorney Gen. Robert Jackson warned the nation’s U.S. attorneys against “the most dangerous power of a prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”

Jackson later served as chief U.S. prosecutor for World War II crimes and as a Supreme Court justice. Those positions provide long-term authority for his guidance, which remains widely quoted.

Wecht’s attorneys from the powerhouse firm K&L Gates included former U.S. Attorney General Dick Thornburgh, a Republican. In 2007, Thornburgh testified to the House Judiciary Committee that Wecht’s prosecution was “political” and based on “trivial ” clerical oversights.

Nonetheless, DoJ forced Wecht and his attorneys to prepare for 250 witnesses until the government dropped more half the charges just before trial. Also, Wecht felt he needed many appeals to get a fair shake from his federal trial judge, a former law partner of his prosecutor’s husband.

At trial in 2008, the jury deadlocked after 10 days of deliberations. Most jurors voted for acquittal. DoJ promptly announced a second trial, with the FBI contacting jurors to question them about their failure to convict. “It’s a bizarre ending to one of the most unfair trials in history,” commented lead defense counsel Jerry McDevitt.

A bipartisan coalition of community leaders protested Wecht’s retrial. Then a new judge ruled that government’s original search warrant in 2005 was illegal. The waste of taxpayer funds must have been astronomical given Wecht’s own spending of $8 million.

Why was Wecht indicted on the fax charges? He says the Bush DoJ targeted him for his politics. This coincides with a nationwide study that showed a 7:1 pattern of DoJ investigating Democrats.

Additional support for the theory comes from a 2005 memo by DoJ’s chief of staff to the White House calling for additional “loyal Bushies” in the U.S. attorney jobs to ensure optimal political results. That memo and other machinations led to an unprecedented mid-term purge the next year of nine U.S. attorneys who had been appointed earlier by the Bush administration.

Contrary to the public focus on those fired, the real story has always been the impact on the public of the super-loyalists who were retained in such a culture. The Wecht prosecution illustrates that impact.

As it turned out, Wecht drew Republican as well as Democratic support. Unlike most defendants, Wecht received fair coverage from both of his hometown’s dailies, including that owned by conservative Richard Mellon Scaife. A bipartisan coalition of community leaders protested his retrial to DoJ.

U.S. Attorney Mary Beth Buchanan

U.S. Attorney Mary Beth Buchanan

As for the prosecutor who made life hell for Wecht and his family? Western Pennsylvania’s U.S. Attorney Mary Beth Buchanan is a partisan Republican who had led DoJ’s office overseeing U.S. attorneys nationwide until mid-2005.

She denounced Wecht this summer even after being forced to drop the case. I contacted her and her media representative with a list of questions this week but didn’t receive responses before publication. In the past, she’s denied allegations that the Wecht prosecution was unfair or that she helped DoJ and White House colleagues plan DoJ’s purge before she went to Pennsylvania.

Like nearly one-third of the 93 Bush-appointed U.S. attorneys, she remains in office today despite a U.S. tradition that top prosecutors resign soon after voters change the president’s political party.

Who’s Entitled To Use The Office Fax?
Another of those retained is Patrick Fitzgerald, the famed U.S. attorney in Chicago. But Fitzgerald is not without critics. In fact, Fitzgerald used his office fax machine this year to send HarperCollins a threat that he’d sue on a personal basis if the company failed to destroy copies of the book Triple Cross that contained criticism that he considered defamatory.

A personal fax? When questioned, DoJ says it approves incidental personal use of fax machines by government employees.

Case closed.

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On Oct. 1, DoJ announced a revamped website that enables your comments on Facebook, Twitter, MySpace and YouTube. DoJ’s announcement says it won’t be collecting data from the sites. That’s good to know, isn’t it? Especially if you’re thinking of using a government device to send your messages.

Siegelman DoJ Paralegal’s Story: From Justice Dream Job To Nightmare

September 13, 2009

As federal prosecutors prepared in 2006 for the corruption trial of Alabama’s former Gov. Don Siegelman, Justice Department paralegal Tamarah Grimes thought she was progressing well in her career. She was past beginner stage after three years at the Middle District U.S. Attorney’s office helping prepare federal cases in the state capital of Montgomery.

Indeed, she was the government’s top in-house paralegal in one of the country’s most important federal prosecutions, which targeted an iconic former governor along with one of their state’s richest businessmen.

But a year later, the prosecution’s all-out effort to convict Siegelman and HealthSouth CEO Richard Scrushy brought Grimes to a career crisis as a legal professional.

Tamara Grimes

Tamarah Grimes

In July 2007, Grimes stepped forward to allege that her colleagues had violated basic legal protections to ensure a fair trial. She claimed, for example, that that prosecutors had communicated with jurors and that pro-conviction jurors had privately strategized by email outside the jury room to obtain guilty verdicts — all without required notification to the defense.

Also, she complained of being the victim of sexually offensive comments by colleagues, particularly in an off-site prosecutors’ office that was entirely devoted to what they called “The Big Case.”

In using the authorized procedures for such complaints, she turned her career dream into a nightmare. What follows is her story. It led to more than a year of threats that she would be prosecuted herself for denying that she had made audiotapes of colleagues.

After she wrote the Obama administration’s Attorney General Eric Holder on June 1 outlining misconduct allegations and asking for his help the Justice Department fired her seven days later for failure to retain a security clearance – which DoJ itself had removed in 2008. At the same time, she was regarded elsewhere as one of the nation’s leading whistleblowers for shedding light on the Siegelman conviction, which has become the most controversial criminal prosecution of the entire Bush administration.

“I did nothing to justify termination,” she told KNOW. “I was a loyal, exemplary employee with no discipline problems and many performance-based awards prior to my complaints during the prosecution of the Scrushy/Siegelman matter.”

But in July 2007, Grimes stepped forward precisely when her office was basking in the victory against Siegelman, Alabama’s leading Democrat for two decades after election as attorney general in 1978. Her criticism had the potential to ruin all the hard work of convicting him.

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For the full story, read the September edition of KNOW: The Magazine for Paralegals. My article is entitled, “From Justice Dream Job to Nightmare…Exclusive Interview With Tamarah Grimes, Justice Department Paralegal…Why This Whistleblower Was Dissed & Dismissed.”

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.

Siegelman, Wecht To Lead Netroots Forum Aug. 15 Reporting About DoJ’s ‘Rove’ Prosecutions

August 7, 2009

Netroots Nation hosts an unprecedented forum on Aug. 15 in Pittsburgh to help journalists learn how Bush administration prosecutors altered the U.S. political map by corruption investigations of Democrats, who were targeted by at least 5:1 ratios.

Former Alabama Gov. Don Siegelman and former Pennsylvania Allegheny County Coroner Dr. Cyril Wecht will show how “selective prosecution” unfairly ruined careers and poses an ongoing threat to our legal system.

The forum is, “Reporting DoJ Misconduct Scandals: Why Netroots Remains Last Hope for Justice.” The title reflects largely failed oversight by courts, Congress and traditional media – and the breakthrough reporting opportunity right now for others, based on major recent revelations.

I’m moderating the forum after investigating mid-term dismissals U.S. attorneys in 2006. White House political advisor Karl Rove helped remove nine U.S. attorneys in mid-term, including seven on one day. As documented in hearings, “Loyal Bushies” destroyed a U.S. tradition that justice system office-holders are barred from such political hit jobs as pre-election indictments.

High Stakes
But the 84 remaining U.S. attorneys have created their own history, much of it tawdry. That’s why Siegelman, Alabama’s governor from 1999 to 2003, continues to stress an ongoing threat to the country, not simply ruin of his own career and family.

Siegelman’s convictions in 2006 were essentially because he urged HealthSouth CEO Richard Scrushy in 1999 to donate to a non-profit that advocated better school funding. The governor then reappointed Scrushy to a state regulatory board. Now 63 and free on bond, Siegelman faces 20 years in prison when he returns for sentencing before Middle District Chief U.S. District Judge Mark Fuller, a Republican who is reputed to hate Siegelman. Scrushy, a Republican who says he was framed in a “vendetta” against Siegelman, is serving a seven-year sentence.

Wecht, a law school graduate and a national leader in forensic medicine, also seeks better oversight of DoJ. The 78-year-old Democrat is now $6 million in debt from legal bills.

DoJ’s 84 felony charges against Wecht were politically motivated and based on “trivial” matters, according to 2007 congressional testimony by former U.S. Attorney General Dick Thornburgh, a Republican and member of Wecht’s defense team. Authorities charged Wecht with 24 felonies, for example, involving his use of a fax machine in the coroner’s office.

Republican U.S. Attorney Mary Beth Buchanan dropped charges in June for lack of evidence, but continued to denounce Wecht. Remarkably, Buchanan and Alabama Middle District U.S. Attorney Leura Canary remain in office despite a tradition that U.S. attorneys resign when their party loses power. Canary’s husband William is a close friend of Rove and a longtime political opponent of Siegelman.

Change?
No Obama nominees for U.S. attorney have yet taken office, 10 months after elections. As the Senate prepares for its month-long recess today, Bush holdovers continue in many other influential DoJ jobs. One is Public Integrity Section Chief William Welch. He co-signed a July 28 legal argument that no reasonable person in the U.S. would think that Siegelman and Scrushy deserve a hearing to explore their new evidence.

DoJ’s argument rings false. DoJ’s prosecution was already the nation’s most controversial of the decade before evidence in June that prosecutors tried blackmail their chief witness without required disclosure to the defense. And Welch, whom DoJ does not make available for comment, is under court-ordered criminal investigation for the misconduct of his trial team last fall in convicting U.S. Sen. Ted Stevens (R-Alaska).

In 2007, University of Missouri at St. Louis Professor Donald Shields found that elected Democrat officials were targeted by a 5:1 ratio over Republicans. New research shows even higher rates, with some prosecutions of Republicans also questionable.

Penetrate the Secrets
To explore these patterns, the Netroots forum features Wecht’s lead trial attorney Jerry McDevitt of K&L Gates. McDevitt will describe how prosecutors can secure advantage in subtle ways at every stage of a proceeding from investigation through appeals.

Gail Sistrunk, vice president and executive director of the educational group Project Save Justice, will summarize national abuses portrayed in its recent documentary video entitled, “The Political Prosecutions of Karl Rove.”

House Judiciary Committee Chairman John Conyers (D-Michigan) is invited. The Justice Department declined to send speakers, even for a separate segment with no opposing view.

These topics are undoubtedly sensitive. The Siegelman case alone includes three public-spirited individuals (none Democrats) who’ve paid huge career costs because of their belief that legal ethics required them to report to authorities their evidence of wrongdoing. One is Missouri attorney Paul B. Weeks, who unsuccessfully sought Fuller’s impeachment in 2003. Another is Alabama attorney Dana Jill Simpson, who swore in 2007 that fellow Republicans plotted to frame Siegelman. Also in 2007, Justice Department paralegal Tamarah Grimes protested to DoJ misconduct on the prosecution team. DOJ then threatened her for a year with criminal prosecution, and fired her in June.

I’ve reported their stories here, here and here with responses by authorities.

So have others who are mostly web-based journalists providing effective big picture and local angles. Harper’s, CBS 60 Minutes and the New York Times have been among leaders in traditional media in breaking new ground. But most traditional news organizations avoid this story, which risks antagonizing powerful officials – including at parent companies seeking the goodwill of government policymakers.

This is not just a story about a few well-known political leaders forced to defend themselves. It’s about many others targeted around the country along with their devastated families, thereby affecting the policy agenda of localities and regions. Let’s compare notes in Pittsburgh. And please pass this on to interested friends. This is a good fight, and a big one.

Alabama Decisions By Siegelman’s Judge Illustrate Abuses of Judicial Power Affecting Many

June 10, 2009

The plight of litigants who face a biased judge is illustrated by the track record of a prominent Alabama federal judge, as well by major recent decisions requiring new trials in West Virginia and Georgia courts.

The track record of Chief U.S. District Judge Mark E. Fuller of Montgomery, Alabama shows that he continues to supervise cases compromised by his personal, financial or political interests despite his promise at his 2002 confirmation hearing to recuse himself from any conflicts.

Exposure of Fuller’s record is timely because of the Senate’s forthcoming hearings for Obama administration judicial nominees, and because of growing concerns about the recusal standard. These include the U.S. Supreme Court’s 5-4 ruling June 8 that a West Virginia Supreme Court judge should have recused himself from a case involving a major contributor to his judicial election campaign. Also, a federal judge in Georgia admitted last month that he shouldn’t have tried and sentenced a high-profile political adversary who now seeks dismissal of the charges.

The right to an impartial judge is worth understanding because so many of us are likely to be in court one day, or at least to care about a friend or family member’s civil or criminal case. The federal legal standard requiring recusal centers on whether an ordinary informed person might think a judge’s impartiality might be questioned. In contrast, the vast majority of legal issues are primarily for legal specialists, whether lawyers or judges. And most of these experts clearly are reluctant to provide the laity with the kind of information below in an analysis of six Fuller cases.

In Alabama, Fuller has declined to recuse himself from the Justice Department’s prosecution of former Alabama Gov. Don Siegelman, a longtime personal and political foe. On May 15, my Huffington Post columndocumented this under the title, “Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company.” Others have published many criticisms of Siegelman’s prosecution by the U.S Justice Department, making it the nation’s most controversial criminal case of the past decade.

“The conduct in the federal court in Montgomery is an unprecedented disgrace,” wrote Harper’s columnist and Columbia University Law School professor Scott Horton, for example, in January 2008.

Yet there’s always two sides to a story, even in an opinion column such as this. In that spirit, here is the core of an email that Judge Fuller sent me this week after I requested his perspectives: “However, I cannot comment on any pending case and as much as I would like for the record to be set straight, I will not become involved in responding to accusations about any pending matter. I appreciate your desire to seek the truth in an unbiased way and I wish you the best of luck.”

That’s a nice note under the circumstances. Additional reader views and news tips are welcome in the comment section below, including from the judge’s defenders.

But today’s column focuses primarily on questions about the justice system. In this, it draws on the advice I received in 1976 on the first day of my five years reporting about the federal justice system for the Hartford Courant, Connecticut’s largest newspaper. “Remember in your reporting, the government is always right!” said a smiling young prosecutor named Paul E. Coffey. He would go on to win a pioneering prosecution against the mob in Hartford, and then lead the Justice Department’s nationwide organized crime strike force that would smash the Mafia’s power, thereby helping the country immeasurably.

A different tone my first day came from my Courant predecessor on the justice beat Thomas “Dennie” Williams when he took me aside in a courthouse hallway at the end of his introductory tour to meet federal judges and prosecutors. “Don’t ever forget,” he advised, “that for some of the people coming through this court, you’re the last chance they’ve got.” Williams is still at it, reporting in a 2006 Truthout article about one of nation’s most comprehensive studies of public complaints about federal judges. The findings? That only six of the nearly 4,300 public complaints over a six-year period resulted in any action by higher authorities. Five judges received the lowest forms of public or private censure, and one received a secret response.

Focusing on Alabama, Harper’s columnist Scott Horton has calledfor congressional oversight of Fuller and potential removal of the judge and the most devious of the federal prosecutors from “their sinecures.” Horton has authored more than two dozen such columns about Fuller since mid-2007. Most of them criticized the judge’s activism in helping Bush administration prosecutors in 2006 in their all-out effort to convict the Democrat Siegelman on corruption charges in 2006. A few columns reported on the judge’s cozy relationships with powerful elected officials who are in a position to help his business interests, as well as the unwillingness of local media barons to scrutinize those situations.

Yet Fuller’s power — like that of other federal and state supreme court judges — extends far beyond criminal cases such as Siegelman’s to broader issues that directly affect the quality of life in his state.

A review of Fuller’s track record since his lifetime appointment in 2002 shows many instances of his judicial activism that helped himself and also raised serious questions of conflict of interest. The summary below of six controversial cases is long. In fact, it’s remarkably long for a judge who’s been in office just six and a half years since his nomination by President Bush and his recommendation by Alabama’s two Republican Senators, Richard Shelby and Jeff Sessions. The Senate recommendations, available here for review, focused upon Fuller’s work as a full-time district attorney for the state of Alabama, supervising an office serving two counties.

Sessions is the most senior and otherwise influential Republican on the Senate Judiciary Committee. As such, his opinions of nominees are highly influential in the current review of Supreme Court nominee Sonia Sotomayor and what will soon become a flood of other Obama nominees for judgeships and posts at the U.S. Department of Justice around the country.

What’s At Stake?
Illustrating the enormous public interest in keeping judges fair and honest — whether in Alabama, West Virginia or elsewhere — is legal work by the Retirement Systems of Alabama (RSA) to protect the pensions of state employees. RSA’s longtime chairman is Dr. David G. Bronner. He is highly regarded in Alabama for increasing the employee pension fund from $500 million in 1973 to an estimated $32 billion by the end of 2007.

In 2002 and 2003, RSA and Bronner challenged Fuller’s integrity in two disputes that were widely reported in the local press and in back-to-back editorials that Bronner wrote for RSA’s monthly newsletter for retirees, The Advisor.

The first controversy was to prevent a money grab by Alabama criminal investigator Bruce DeVane, who worked for Fuller in the district attorney’s office. In 2000, Fuller raised DeVane’s annual pay from $80,307 to $152,014. That new pay grade was nearly $60,000 more than Fuller’s own pay of $92,169 from the state that year as DeVane’s boss. DeVane, 49, then sought to retire and use the higher salary as his pension base for the rest of his life.

After assuming his federal judicial office on Nov. 26, 2002, Fuller used the prestige of his judicial status on Dec. 4 to testify in support of DeVane’s claim, even though section 2B of the Code of Conduct for U.S. Judges discourages testimonials. The judge cited DeVane’s hard work in writing office manuals as a key reason for the raise. RSA opposed what it projected to be $330,000 in unmerited payments based on Fuller’s “salary spike” for DeVane just before retirement.

In another court dispute at the same time, RSA was alleging fraud against the bankers and financial advisors for Enron, Inc., following the largest bankruptcy in U.S. history. RSA sought reimbursement to protect retirees. Separately, federal prosecutors were on the way to winning criminal convictions against Enron’s top management.

In 2007, RSA’s chairman summed up these disputes in a front-page editorial in The Advisor. “The RSA had to go through the entire state court system to prevent Judge Fuller’s buddy from ripping off the RSA,” Bronner wrote. “Shortly thereafter, Judge Fuller tried to sandbag the RSA by preventing our claim (by doing nothing) against the ultimate crook ─ Enron! Fortunately, the RSA prevailed on both issues.”

Based in part on evidence from the RSA case and from a state district attorney, Missouri attorney Paul B. Weeks, representing a plaintiff before Fuller in the separate civil lawsuit Murray v. Scott, drew up a motion in 2003 to force Fuller to recuse himself from Murray.

Weeks alleged that the pension and Enron cases were part of a Fuller criminal conspiracy. Its essence, Weeks said, was to force the state to provide hush money for DeVane because the investigator knew that Fuller spent so much of his time out-of-state as the chief executive officer of the Colorado-based military contractor Doss Aviation, Inc. “If so,” Weeks wrote in his filing, “this would be a judicial infamy of historic dimension: a federal judge who waited only 9 days after taking office before committing crimes and violating laws he swore to uphold” [emphasis in the original].

Weeks delivered copies of his sworn statement, motion and evidence totaling 180 pages to Fuller and to the U.S. Department of Justice Public Integrity Section, among others. Weeks obtained Fuller’s recusal from the Murray suit, but with no written explanation for the reasons. Holding the view that Fuller was so dishonest that he should never preside over another litigant, Weeks also asked the Public Integrity Section to prosecute Fuller for perjury and conspiracy to defraud RSA of $330,000 in pension funds.

Weeks now says that the Public Integrity Section’s failure to disclose Fuller’s status means that the judge should have announced his status to litigants in the Siegelman case and recused himself if he failed to secure a waiver from them to continue. His theory was that the Justice Department potentially controlled the judge because it could prosecute the judge himself at any time for conduct far worse than alleged against the defendant Siegelman.

The Justice Department declined to confirm or deny any investigation of Fuller. The Department and Fuller have maintained at other times that their decisions are justified, with Fuller saying criticism is “politically motivated.” DeVane’s attorney Joe C. Cassady failed to respond to a request for comment. Fuller, before his government work, had been a partner in Cassady’s law firm in Enterprise, Alabama.

Recusal Overview
Fuller’s proceedings show that he sometimes recuses himself, sometimes not. Sometimes he writes an opinion justifying his actions, sometimes not. What’s consistent is that his actions have prompted a remarkable level of controversy by litigants and outside critics accusing him of abusing his powers since he took office.

Recusal occurs when a judge decides not to preside over a particular case. Once a judge recuses, the case is then sent to another judge who then, in turn, assigns the case to a new judge who is qualified to preside. If granted in a criminal matter after conviction it typically requires a new judge and a new trial. Federal law requires recusal if an “objective, disinterested lay observer” would have a “significant doubt” about a judge’s impartiality. This legal standard is distinctive in its reliance upon the views of the ordinary person.

The standard creates a particular drama in the Siegelman case. This is because Fuller and the Justice Department have maintained that not a single objective and informed person in the U.S. might think the judge biased. This is despite a public protest that is almost unprecedented this decade anywhere else about the fairness and legality of this case, including the judge’s supervision.

Judges are supposed to initiate their own recusal if circumstances warrant under a leading U.S. Supreme Court case. In Liljeberg v. Health Svcs. Acq. Corp, the court ruled in 1988 that a Louisiana judge inexcusably failed to remove himself from a case when he knew he was a trustee of a hospital involved. The case and its applicability to Fuller were described in a May 18 article by Alabama journalist Roger Shuler quoting Weeks entitled, “Siegelman Judge Committed Fraud on the Court.”

As one of the recent cases keeping recusal in the news: the Supreme Court ruledJune 8 in Caperton v. A. T. Massey Coal Co. that West Virginia’s chief justice must recuse himself from a $50 million case against a coal company whose chief executive had spent $3 million to elect him. Thirty-nine states elect at least some of their judges, according to a New York Times report. See Court opinion.

That decision followed one last month by Georgia federal judge Dudley Bowen, who admitted that he never should have presided over the corruption trial of former Georgia senate leader Charles Walker because “impartiality might reasonably have been questioned.” Walker, a former state senate majority leader and a publisher of Georgia newspapers that are aimed at blacks, had opposed Bowen’s judicial appointment three decades ago because of Bowen’s membership in clubs that restricted membership to whites. Walker’s prosecution on 142 counts of fraud primarily stemmed from claims that his newspapers fooled advertisers by exaggerated circulation totals, which is not uncommon among publications.

Critics of the prosecution such as Horton and Walker’s son Charles “Champ” Walker, a radio show host, have cited the case as closely comparable to Siegelman’s as an example of an all-out effort by Bush administration Justice Department to target Democrats. The Georgia case was different from Siegelman’s, however, because the defendant’s judge had been nominated by a Democrat. But evidence leading to the recusal showed the additional factor that the judge was friendly with a newspaper publisher in Augusta who competed with the defendant.

“There’s absolutely no doubt that my father’s case must be retried or his sentence vacated and rights restored,” Champ Walker wrote me on June 10 as he planned a trip to Washington, DC this month to seek Department of Justice review. “We will never stop fighting for him or for the others that have been wronged. I ask the question: How could the DOJ not intervene with the evidence that Judge Dudley Bowen recused?”

The Alabama Cases
Below is a sample of Fuller cases, including two excerpted above, that raise questions about potential judicial bias forbidden by the Code of Conduct for U.S. Judges if it might constitute “impropriety or the appearance of impropriety.” The critical year for decision-making is in parenthesis.

Murray v. Scott (2003). On July 25, 2003, Paul Weeks filed his affidavit seeking Fuller’s recusal from Murray, as described above and in my May 15 Huffington Post article. Source materials, including his exhibits and relevant court rulings on this and other cases below, are available here. The Weeks filing was based in significant part on state proceedings involving RSA. Weeks claimed that Fuller’s motivation was to keep DeVane quiet about the specifics of Fuller’s two concurrent full-time jobs from 1997 to 2002. Fuller was chairman and chief executive officer of Colorado-based Doss Aviation from 1989 to 2002. That overlapped since 1997 with Fuller’s state district attorney post.

Weeks promptly won Fuller’s recusal from Murray. But neither Fuller nor Eleventh U.S. Circuit Court of Appeals Chief Judge James L. Edmondson described the reasons for the recusal. Furthermore, the legal arguments and evidence submitted to the court system by Weeks were placed in a “separate binder” that is not readily available to other litigants via the federal court system’s electronic document retrieval system PACER.

Weeks says that court officials apparently wanted his evidence hidden from any future litigants facing Fuller. If so, Fuller’s duty to disclose his conflicts under the Liljeberg Supreme Court case would be especially strong. Siegelman and his co-defendant Richard Scrushy say they never knew before their trial that Weeks had made wide-ranging allegations against Fuller, or that the judge was the largest stakeholder in a military contractor whose revenue depended on government contracts.

Retirement Systems of Alabama v. Merrill Lynch & Co. (“RSA-Enron Case”) (2003). In March 2002, Alabama’s state pension fund RSA filed suit in Alabama’s state court in Montgomery to recover $65 million lost in the “death spiral” of Enron in 2001. RSA requested that Fuller stop trying to assert federal jurisdiction over the case to affect its outcome, and instead let the case remain in its proper venue in state court.

During this period in 2003, Weeks filed his affidavit in the Weeks case, saying, “As I understand it, Judge Fuller refused to recuse himself from the RSA-Enron case. This is a very troubling situation” [emphasis in the original].

“The evidence strongly suggests that Fuller and DeVane committed serious crimes against the RSA,” Weeks continued. “By refusing to recuse himself from the RSA’s case against Enron, Judge Fuller is positioned to taint the RSA and any RSA official who may testify against Fuller should Fuller ever be prosecuted for his crimes against the RSA [emphasis in the original]. In the RSA-Enron case, Judge Fuller will rule against the RSA on some important issue. Then, if Fuller is ever criminally prosecuted for his crimes against the RSA, Fuller can claim that any RSA official who testifies against Fuller is doing so in retaliation for a court ruling Fuller made against the RSA.”

“Thousands of Alabamians rely on RSA for their pensions,” wrote Alabama journalist Roger Shuler on his blog in 2007. “And yet Weeks’s affidavit presents overwhelming evidence that Fuller first tried to defraud RSA and then wrongfully ruled against RSA in retaliation for the pension fund having the audacity to defend itself from an attempt at fraud. Does Mark Fuller sound like the kind of person who should be in any position of authority? Does he sound like the kind of person who should have been overseeing the trial of former Governor Don Siegelman?”

In the end, RSA was able to transfer its Enron suit away from Fuller to state court. A settlement announced in 2005 by RSA’s law firm was that five financial advisors and fund-raisers for Enron agreed to pay RSA $49 million. The settlement of the state case allowed RSA to recoup the vast bulk of the money that it lost in its Enron investments.

U.S. v. Siegelman (2007). Don Siegelman was Alabama’s governor from 1999 to 2003. He and former HealthSouth CEO Richard Scrushy were indicted in secret on May 17, 2005, with the case assigned to Fuller. Prosecutors announced the charges and Fuller’s assignment on Oct. 26, 2005 in a superseding indictment. The key allegation was that the wealthy Scrushy arranged $500,000 in donations to the Alabama Education Foundation. Siegelman supported the foundation’s advocacy for better schools through a state lottery so strongly that he personally signed a loan guarantee for its debt. Siegelman then reappointed Scrushy to a volunteer state board on which Scrushy had served under three previous governors. In 2006, the defendants were convicted on seven of 32 counts on corruption charges.

In February 2007 as sentencing before Fuller approached for the defendants, Jill Simpson alerted Scrushy’s attorneys that her work as an attorney representing government contractors enabled her to know that Fuller received massive non-judicial income from Doss Aviation and its affiliates.

Simpson was also a longtime volunteer in opposition research to help Republican candidates against Siegelman and other Democrats. She testified later in 2007 to congressional staff that she was worried before the Scrushy and Siegelman sentencing that she was obligated as an attorney to prevent the defendants from being wrongly framed and imprisoned. She said she had heard clues about a plot among fellow Republicans to prevent Siegelman from running for re-election in 2006, and was later appalled to see something like it unfold. Republicans have denied her allegations.

In April 2007, Scrushy and his attorneys filed a motion asking Fuller to recuse himself. The brief alleged that Fuller’s 43.75 percent ownership in Doss Aviation reported in state corporation filings was a conflict of interest because of the company’s dependence on contracts from the same federal government they said was wrongfully prosecuting Scrushy. Fuller’s closely held company had six other shareholders. The only one with more than a 6.25 percent share was Fuller’s former law partner, Joe C. Cassady, Sr., with 25 percent.

Frank G. Hunter, Fuller’s successor as Doss Aviation chairman and CEO, was later quoted as saying that Fuller’s stake has been lowered to 30 percent. Doss officials failed to respond this week to a request to comment on Fuller’s current stake in the company, which has received more than $300 million in federal military contracts since the beginning of 2006. The multiyear contracts are for such tasks as training U.S. Air Force pilots nationally, providing the military and such civilian agencies as the FBI with uniforms and safety gear, and refueling Air Force planes, including Air Force One.

Fuller rejected the recusal motion, saying that no reasonable person would think he might be biased. He went on to sentence the two co-defendants in June 2007 to seven years in prison apiece, denying them the appeal bonds that usually are granted to white-collar defendants and ordering them to be sent immediately from court to prison in shackles. Siegelman, 63, later won freedom from an all-Democratic appeals court ruling after nine months in prison, a month of it in solitary confinement. Scrushy, 56, remains in prison.

An all-Republican panel of the federal appeals court affirmed Fuller’s jurisdiction on March 6, 2009, saying that Scrushy’s argument was “untimely.” The appeals court also affirmed five of Siegelman’s seven convictions of the 32 charges originally brought by prosecutors. The court dismissed allegations of prosecutorial misconduct and ordered the defendants to reappear before Fuller for re-sentencing.

The mostly Republican full appeals court affirmed the three-judge decision. The Obama Justice Department, which includes many holdover political appointees from the Bush administration in key positions in Alabama and elsewhere, has requested that Fuller increase Siegelman’s sentence to 20 years. The reasons for the Justice Department’s recommendation are in a letter to the U.S. Probation Department that the Department has declined to discuss.

Gustafson v. Johns (2006). On May 22, 2006, Fuller was one of three judges on a special three-judge panel of the federal court of appeals who dismissed a constitutional challenge by 19 Alabama voters alleging that Alabama’s 2001 redistricting was partisan gerrymanderingthat deprived voters of their rights to fair elections. unanimous decision by two Republicans and a Democrat was that the case should be dismissed because it was so similar to previous litigation.

Redistricting decisions such as this can have enormous impact because the process typically occurs just once every 10 years and carves up congressional districts in convoluted ways to benefit the powerful.

The appeals court judges noted that Gustafson was brought by Republicans, and had its roots in early 1990s activities of the executive committee of Alabama’s Republican Party. Fuller himself had served from 1992 to 1998 on that same Republican executive committee.

During that period, the Republican leadership worked with such political strategists as William Canary and his close friend Karl Rove to transform Alabama’s state office-holders from primarily Democratic to primarily Republican. The notable exception was Siegelman, the only politician in Alabama’s history to hold all four of its top elected statewide offices and serving almost continually in statewide office from 1979 to 2003.

The docket in Gustafson shows no effort to recuse Fuller because of his 1990s Republican political leadership. His work included serving as the campaign manager for longtime Alabama Congressman Terry Everett, a newspaper tycoon from Fuller’s district who was one of the most powerful Republican leaders of the House Armed Services Committee until retirement this year.

In sum, the Republican Gustafson plaintiffs lost with Fuller’s concurrence, and no one asked for Fuller’s recusal. But the case illustrates federal judicial authority over an important dimension of public life, as well as the reluctance of judge and litigants alike to put potential conflict of interest problems on the record.

U.S. v. Stayton (2007). This is another Fuller case involving a recusal that didn’t happen, at least not for a year. The case centers on events near Fuller’s hometown Enterprise, which is located in south-central Alabama. Nearby is Fort Rucker, the nation’s primary flight training base for Army Aviation.

On March 1, 2006, federal prosecutors announced the indictment on corruption charges of William C. Childree, CEO of Enterprise-based Maverick Aviation, and Jeffrey Stayton, an official at the army test and evaluation command center in Enterprise. The government charged that Childree bribed Stayton to help Maverick obtain a $4.7 million contract to modify two Russian helicopters for the U.S. government’s use. This was a small part of what was reportedly a much broader campaign to buy Russian helicopters for use in Iraq. Part of that was described in a Wired article this spring by Sharon Weinberger, “How To Get A No-Bid Contract for Russian Choppers.”

Much of the case remains secret because of national security. But this much is known: Fuller and his former law partner Joe C. Cassady, Sr. together owned 69 percent of Doss Aviation, according to 2003 Maine corporation counsel records, with total apparently reduced over time. But Fuller waited more than a year after the indictment before recusing himself on March 18, 2007 because of the relationship of Maverick and Doss Aviation. A jury later convicted the defendants before another judge.

The Justice Department’s Public Integrity Section pressured Fuller behind-the-scenes to remove himself from the Maverick case after a year of presiding, according to two sources. One of them, Jill Simpson, says, “It shows that Public Integrity knew exactly what kind of guy Fuller was, and had to even figure a way to get him out.” But that account is disputed. “The Department of Justice plays no role in the selection of trial judges,” according to Department spokeswoman Laura Sweeney, “nor did it take a position for or against any possible recusals in the case you reference involving Maverick Aviation.”

The matter could be of continuing interest in the oversight investigations now occurring regarding several of the Justice Department’s high-profile prosecutions. The Public Integrity Section is led by William M. Welch, II. He was the department’s top official who signed its appeals court brief in the Siegelman-Scrushy in 2008 arguing that not a single informed U.S. citizen might think Fuller biased because of his Doss Aviation status. Welch also led the prosecution effort last fall against then-U.S. Sen. Ted Stevens, the Republican from Alaska whose conviction on corruption charges was vacated this year because of allegations of prosecutorial misconduct.

“The recusal order is under seal,” commented the Alabama blog Grievance Project, written under a pseudonym by an Alabama attorney, “making it impossible to learn what conflicts the parties saw in the matter, nor why Judge Fuller felt free to handle the case for some time before withdrawing. It could be legitimate, or it could be a cover-up, and there is no way to find out with the seal in place.”

Walton v. Neptune Technologies (2009). This case illustrates the potential risk for attorneys, private investigators and litigants when researching the background of a judge.

Priscilla Black Duncan of Birmingham, an active Democrat, is a sole practitioner whose clients include Jill Simpson and her friend Mark Bollinger. Bollinger, with 35 years of law enforcement experience, used his account with the data service ChoicePoint to help her research a question about Doss Aviation in February 2007 for Scrushy’s unsuccessful motion asking Fuller to recuse.

Also, Duncan represents Rebecca Walton, who filed a job bias and sex harassment suit in 2005 against her former employer Neptune Technologies. In March 2009, Duncan requested that Fuller recuse himself from Walton on the grounds that “he would find it impossible to be fair,” given her other clients Simpson and Bollinger.

In her legal brief, Duncan noted Simpson’s research exposing Fuller’s finances and her congressional testimony in 2007. In that testimony, Simpson alleged that a Republican friend had predicted in early 2005 that Siegelman would be indicted and that Fuller would be assigned the case to “hang” the defendant. Simpson said she was told that Fuller “hated” Siegelman because of the circumstances of the RSA pension case.

Regarding Bollinger, Duncan’s brief cited email correspondence suggesting that ChoicePoint cut off Bollinger’s subscription to ChoicePoint’s 17 billion records because of the judge’s complaint about Bollinger’s help for Simpson and Scrushy.

Neptune responded by arguing that Fuller should be able to retain jurisdiction over the job bias plaintiff Walton. On April 15, 2009, Fuller ruled that he would continue to preside over Walton because she had not objected to him in a timely manner. Also, Fuller wrote that he would have denied Walton’s motion even it had been on time, saying he “has no financial or other personal interest in the actions of any of Duncan’s clients.”

The judge praised Neptune for the quality of its legal arguments in arguing for his continued oversight, and he ordered all attorneys to prepare for Neptune’s request that the court dismiss Walton’s lawsuit before trial.

Summing Up
As noted above, the legal standard for recusal relies on the views of ordinary people, not on judges and other legal experts. In empowering a public that can be increasingly well-informed by Internet research, this legal standard reduces the traditional power of judges to pressure attorneys, who typically need to foster good relations with the most important judges in their districts.

Yet it’s ultimately judges themselves who interpret the legal standard, and the legal system virtually immunizes judges from scrutiny except in the most clear-cut cases, as noted in the Truthout report by my Hartford Courant courthouse mentor Dennie Williams in his article “Who Is Judging The Judge?”

From this perspective, the federal judiciary’s self-protection mechanisms show an awesome power over litigants, with information about finances doled out only long after the fact and in generalities by the Administrative Office of the U.S. Courts. Its spokesperson says, for example, that it does not make public individualized financial reports of judges that are due each May, and it advises interested parties to request the information from the judges. Fuller failed to respond to my requests for his current financial information on Doss Aviation and other holdings.

The power and secrecy of the judiciary dwarfs even the capabilities of a Siegelman, a Rhodes Scholar elected as Alabama’s attorney general in 1978. Siegelman says he knew nothing until after his conviction in 2006 about his judge’s Doss Aviation holdings and the corruption allegations unearthed by the six months research of Missouri attorney Paul Weeks. Siegelman relied on the 2007 recusal motion by his co-defendant Scrushy, but failed to join it. Courts and the Justice Department, as noted above, have rejected the Scrushy motion as “untimely,” with scant comment on the merits.

So what’s the lesson for any reader with an important case along with a fear that your judge might be compromised and your attorney too timid, too busy or too conflicted to speak up?

You could start your own in-depth investigation of the judge, making sure that your findings are on record with a formal complaint before any major judicial decision. Or you could encourage oversight bodies to do the job that they’re supposed to be doing.

If not you could end up like many others before you: Too late, too bad and sadly out of luck. ###

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.” ###