A Quick End to a Long Trial

Two years to the day (on my birthday) that Richard Scrushy was acquitted of 36 counts of fraud-related charges, he was sentenced along with Don Siegelman to federal prison. Whereas he was the only high ranking executive in the recent era of corporate fraud to not be found criminally responsible for the financial crimes that occurred at his company, the tenacity of the federal government parlayed Alabama passion and a distrust of the Birmingham jury’s verdict into a six year ten month prison term. Tapping into this passion also became the final ingredient in solving the government’s six year odyssey to bring down a former governor.

As most of the observers suspected, it was pretty much a done deal before the three long days of the sentencing hearing. The presentations were occasionally impassioned and dramatic but were mostly tedious, as both sides wanted to put as much verbiage into the official transcript as possible in preparation for the next once-and-for-all battle that will be waged in the 11th Circuit Appellate Court.

The legal teams for both defendants individually argued a handful of objections to the pre-sentencing report filed by Jacquelyn Caple, the probation officer. When these objections were over, Judge Fuller ruled mostly in favor of the prosecution, with the government winning six of seven for Siegelman and eight of nine for Scrushy. After this battle, it led to Fuller setting the base sentence for Siegelman at 10-13 years and 8-10 years for Scrushy.

Both sides often drifted into rehashing some of the contentious issues of the trial and Fuller was visibly bored or annoyed when this happened. At one point prosecutor JB Perrine launched into a closing-argument style litany of everything of all the transgressions of Don Siegelman, but with the absence of the jury, he was preaching to the one-man choir on the bench. As an ominous cloud was beginning to settle over the courtroom, the primary battle settled on two issues: For the Siegeman’s attorneys, it was the prosecution’s use of acquitted conduct (i.e. consideration of charges that he was acquitted of in determining the sentence for charges he was convicted of) and the related realm of relevant conduct, the notion that Siegelman’s obstruction of justice charge (the only non-bribery charge he was convicted of) was a link between the bribery and the conspiracy charges. For the prosecutors, the issue was Siegelman’s acceptance of responsibility, specifically with regard to his contention that he was the victim of a political prosecution.

By lunch time of the final day, most observers including the legal teams were becoming more convinced that the writing was on the wall, and that the end would be swift. Before the afternoon break, Fuller granted the prosecution’s motion for upward departure, taking judicial notice of what has gone on outside the courtroom, including Siegelman’s relentless instance that the trial was a selective political prosecution. The base sentence, for Siegelman, was now set at 15-19 years. The maelstrom had come home and it was clear that even if he were now to show leniency, Judge Fuller would not spare Scrushy and Siegelman from prison. Before the week had begun, very few observers felt that a non-prison sentence was a possibility, but if anyone was holding out a sliver of hope that the door was still open even an inch, it slammed shut in the middle of the afternoon, on June 28th. The maelstrom that swirled around the Siegelman case all came to a head with Fuller’s finding and proclamation: The six year investigation and trial, the charges of a political prosecution that coincided with recent charges of a politicized Department of Justice, the Jill Simpson affidavit, the prosecutor’s complaints of a non-repentant convicted felon, the recent articles in the New York Times, Harper’s and the LA Times, the charges and non-investigation of problems with the jury, and all swirled into the Alabama passion of the people who loved or hated the two men who stood in front of Judge Fuller, on their last day of freedom.

The next person to address the judge was Carmen Hernandez, Scrushy’s sentencing specialist. When she stepped up to the podium, it was kind of like a situation where there are three guys on a bridge, who are having a dispute. One of the guys grabs one of the other two and throws them off the bridge. Then he turns to the other one, and says, “You got something to say to me?”

After Fuller had just set the guidelines for Siegelman at 15 years 8 months to 19 years 7 months, Hernandez was understandably furtive and shaking and stammering as she began to address the judge. After a couple false starts, Judge Fuller recognized the problem, interrupting her to assure her that he did not intend to sentence Scrushy to anything like sentence he had just handed out. So at that time, Scrushy’s family and friends could hold out some hope that the hammer that just squished Siegelman would miss Scrushy. But that didn’t seem likely because even with the departure granted to the prosecution, in Siegelman’s case, the two men still faced similar base sentences.

The last slow meandering speech before everything went into fast forward leading to the abrupt conclusion was an elegant presentation by Siegelman attorney, G. Robert Blakey about setting a reasonable sentence. Blakey went on a tour of crime and punishment as it has played out in Western Civilization, including Judeo-Christian conditions and Hebrew law, and the psychological underpinnings of sentencing as balanced against the needs of a society. Although there was virtually no chance this rendition was going to sway or influence the judge, Blakey’s approach to law and punishment was not specifically tailored to the situation at hand. In conversations with Blakey throughout the trial, it is clear that he is a student of the historic traditions that hold up the foundations of modern law, and he sees current law and legal practices as being a continuum of the evolution of society as a whole. This elegant presentation might have been the kind of thing that might have worked in a precedent-setting situation, like the Supreme Court or an Appellate Court, but at this time, in this court, it was just more verbiage for the record. The only thing concrete, that could have had an effect on the ultimate outcome was a listing of punishment given out to other convicted governors. At the top of the list of 10 was Louisiana Governor Edwin Edwards, who got 10 years, and at the bottom was Alabama’s Guy Hunt, who got 5 years probation. And Blakey made the additional point that all ten of these governors pocketed some sort of personal benefit—from $150k to $2.4 million—but this point did not have much validity since the prosecution has always claimed, and the court has accepted, that Scrushy’s $500k contribution was a personal benefit because it was used to pay a loan that Siegelman had was a guarantor on.
In JB Perrine’s response to Blakey, he provided a humorous moment when he said that we weren’t talking about Hebrew Law or any other country’s law, but we were talking about American Law. This is kind of like saying we’re not talking about speaking English, we’re talking about speaking American. But it didn’t really matter as his response was as extraneous as Blakey’s argument. He provided his own list of comparison cases to go along side of Blakey’s 10 governors. At the top of his list was a crack addicted drug dealing Sherriff. Not exactly a one-to-one correspondence. It is possible that this weak response may have lead to what was going to happen a few hours later, but it is more likely that both sides just made the official transcript longer.

A darker, more direct response to Blakey played itself out during the break. Steven Feaga was hopping mad about Blakey’s talk. This may have stemmed from a reference Blakey made to jackals who want to feed on the carcasses [of Siegelman's career]. He said that Blakey wasn’t a “player” in the case, and that all he wanted to do was come in here so he could go back to tell his law students that he got the judge to change a ruling. He called Blakey a rock thrower and a bottle thrower. It seemed like kind of over-the-top hyperbole from a participant in a case where both sides have been throwing verbal missiles at each other for a year, where tantrums were thrown in motions and where press conferences were often interchangeable with legal arguments. Blakey may not have been a player in the nuts and bolts part of the case, involving the examination of witnesses, but he was brought in as one of the country’s foremost experts on the RICO statutes, the overcharged portion of the trial that Siegelman was acquitted of. With Blakey’s credentials, it didn’t really seem like he would need to brag about anything. On the other hand, Assistant US Attorney is in the swing seat of the legal profession, from there an AUSA like Steven Feaga could become a US Attorney, he could use the position as a launching pad into politics or a judgeship, or to build a portfolio for a lucrative practice in the private sector. If Blakey was the non-player hired gun, than it could be equally argued that Feaga’s role was to drag the trial out past the primary, to take advantage of a lenient judge by introducing redundant and extraneous evidence, and of adopting an aura of innocence while making outrageous statements in open court. In a long trial, the legal teams did what lawyers do, and it is kind of disingenuous to duck the mirror and lob bottles at the other side.

When the final break came, at around 7:00 in the evening, just before Fuller was going to pronounce sentencing, the courtroom began to fill up with US Marshalls. In an ominous ready-for-anything display of force, I counted 12 Marshalls in the room: Two at the door, three or four in the aisle and four or five more in the well of the court, behind the defendants.

Earlier in the day, Scrushy had introduced all nine of his kids and his wife to Judge Fuller, to give him “10 reasons” why he shouldn’t be taken away. Scrushy’s family has made appearances, either in person or by reference, at numerous times throughout both trials. And although it is something that plays well in this country, it has often appeared, to some observers, as if he was habitually using his family to deflect and excuse himself from his own personal problems. It happened several times in the first trial and several times in the second one, culminating in the Disney World incident. His heart may well be in the right place when he does this, but it has always created an appearance problem, and this time, as he introduced each of his children, it looked like Reverend Scrushy was trying one more Hail Mary. But it gave the court a sinking feeling as most of the observers in the room knew that even if Fuller had 1,000 reasons not to send him away, Scrushy’s number was up. I’ve had many letters and comments and conversations with people, over the last several months, that told me they didn’t think Scrushy would ever do a day in prison, but in the 11th hour of that last day, in a courtroom stuffed with US Marshalls, everyone knew that the Teflon CEO of the era of fraud was about to be taken away on the thin evidence of a different crime, chained to the misfortunes of the six year investigation of the former governor of the state, who in a masterstroke for the prosecution, was equally chained back to Scrushy. After the break, the three youngest of Scrushy’s children were not in the courtroom. By that time, everyone knew what was about to take place, and the lawyers had prepared their clients. There was some discussion of whether any of Scrushy’s younger children should have been in the court at all, in light of this knowledge, but it can only be assumed that the severity of the final moments was not fully anticipated by everyone present.

When Judge Fuller pronounced the sentence, he halved the base sentence he had set for Siegelman earlier in the day. The 15-19 year base became an actual sentence of 7 years four months. At that moment, there was a thought that Scrushy may end up with a fairly light sentence, since his base was only 8-10 years. But in the end, his 6 year 10 month sentence varied from Siegelman’s by only six months. Siegelman’s attorney, Hiram Eastland, had prepared an argument to bond Siegelman out, while awaiting his appeal, but most people felt there was only a slight chance Fuller would hear it. When they asked to address the court, Fuller said, “No. We’re done,” and banged his gavel. From the time the sentence was pronounced, to the time the shackled defendants were hustled out the side door was less than thirty seconds elapsed. It was over. For now.

There was both sorrow and jubilation in the courtroom. As Leslie Scrushy was sobbing, there were some broad smiles from those who had waited four years to see Richard Scrushy go to jail. The scene was indicative of the passion I have come to know and expect from Alabama.

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In the aftermath:
As most people know, from the week that has passed since the sentencing: Scrushy and Siegelman are housed in the Federal Penitentiary, in Atlanta.

And a few other things have transpired:
**In a matter that may or may not be related to the situation, Susan James, Siegelman’s sentencing specialist had her client files ransacked in the weekend after the sentence;

**Siegelman’s supporters have continued to push the political angle (I’ll write more about this in another week or so) and their version of a Hail Mary is to somehow hitch the Siegelman-Scrushy matter to the current investigations concerning the politicization of the Justice Department. They began this effort by rubbing sticks together using a pile of suspicious connections and little concrete proof, and although some people still scoff at the notion, the effort has picked up enough steam to garner national coverage.

**Congressman Artur Davis has sent a letter to John Conyers, as chairman of the House Judiciary Committee, asking that the Siegelman case be added to an investigation of politically based selective prosecutions.

**An emergency appeal has been filed to free the defendants on bond (essentially, the argument that Fuller said, “No, we’re done” to).

…and I went on vacation. I am working on other parts of this matter, and I may not do many more blog entries (for now) but I will leave this site up and will continue to update and maintain the Names resources, and will post other resources as they present themselves, or time is available. Thanks to everyone who has stopped by in the past two and a half years, including people who liked what I was doing or the vocal people who didn’t like it, the legal teams, the government people, the media and observers from around the world.