It is the day after Veterans Day, a holiday originally set aside to commemorate the end of World War I, but was later generalized to honor all veterans who have served our country. Because it fell on Sunday, the banks, some schools and the delivery of the US Mail are shut down today. Courts too. There will be no decisions today. As of Veterans Day, 2007, it has been about four and a half months since Don Siegelman and Richard Scrushy were hauled off to prison, and it has been about four months since emergency appeals were filed on their behalf, appeals that could free them while they await disposition of the appellate process that could take up to two years.
In the early evening of June 28, 2007, after a three-day sentencing hearing, Judge Fuller pronounced the sentences on Siegelman and Scrushy and they were hustled out the door and shackled before they could even kiss their wives goodbye. In the scant seconds between Fuller’s sentence and when the Federal Marshall’s closed in, two attorneys with motions and prepared arguments in hand, rose for each of the defendants. Carmen Hernandez for Scrushy and Hiram Eastland for Siegelman. Eastland asked to be recognized by the court and Fuller said sternly, “No. We’re done here.” The rebuke was louder than his gavel and it was clear to the courtroom, to the media and to the world beyond that Siegelman and Scrushy were going to be punished regardless of any issues that yet remained to be solved.
That was four and a half months ago, and by Veterans Day, it has been four months since an Emergency Appeal was filed on behalf of both defendants. Three months later, the 11th Circuit Court of Appeals acted on the “Emergency Appeal” by sending it back to Judge Fuller and directing him to give the reasons he was recalcitrant to give at the end of that long day, in June. About a week later, apparently mindful that this was an “Emergency Appeal,” Judge Fuller replied to the court that the issue was whether or not Siegelman’s appeal would raise enough significant matters of law or fact that could result in a reversal of his conviction. And he preceded to tell the 11th Circuit that he thought about this and believes Siegelman doesn’t have a case, but because it is an “emergency,” he is not going to give them any reasons. And time passes. About a month later, the Court of Appeals returned Fuller’s lob with a volley of their own, telling the District Court that having some reasons might be helpful in order to rule on the defendant’s “emergency appeal.”
Siegelman’s motion for release was 80 pages long; it raised at least five substantial First Amendment issues, it challenged that a necessary quid pro quo arrangement was ever proved in the District Court, it challenged the nature of the obstruction of justice count and cites numerous facts to challenge the government’s theory that was presented to the jury. Eighty pages and Fuller summarily tells the Appellate Court that he thought about it and doesn’t buy the arguments even though Siegelman’s document appears to address plenty of substantial facts that go right to the heart of the case, so much so that if just one of these were found to have merit, the case could be overturned.
The Meaning of Emergency
One of my legal sources told me recently that there are indeed different meanings for the word ‘emergency’, depending on if you are a member of the lay community or of the legal community. To most of us, emergency means an urgent, usually unexpected occurrence that requires immediate action. But the 11th Circuit uses a different definition. To them it means that since we are appointed for life, as long as we rule before we die, it is a timely decision. That’s one meaning, but are there others? Federal Courts have some latitude on granting appellate bonds as the defendant must show that there are substantial matters that are at issue, and that a favorable resolution of these matters would likely result in a successful appeal. This rules out a defendant bonding out on a technical matter that would merely result in a trivial correction that would not affect the status of the defendant’s trial or of his sentence, and it would rule out a defendant remaining free with the sole purpose of delaying his inevitable prison term. But in this case, substantial questions abound. Even if an observer’s gut-feeling says that Siegelman and Scrushy are criminals, and they are exactly where they should be, it would be hard pressed for that observer to give a legal explanation to justify their internal feelings, based on what happened in the trial in Montgomery. And if that is true, why should Judge Fuller be so untroubled by the issue that he would be openly belligerent to the higher court?
There have recently been issues raised about Fuller’s ability to be impartial. Harper’s reported about another case where he was forced to recuse himself after documents and affidavits were filed that showed that he had some serious ethical and possibly criminal problems. And before the sentencing I talked with people who anonymously told me various things about Fuller that revealed, if nothing else, he may have exhibited some suspiciously furtive disclosure practices. There is also the matter of the grudge he was said to have against Don Siegelman, dating back to when Fuller was a DA. I have known most of these things for some time but have not given them as much weight as I have given to the paucity of evidence in the matter at hand. I have never wanted to believe that a Federal Judge could be so reckless and vindictive to be a party in the ruination of another man’s life, much as I previously had not wanted to believe that the Justice Department of the United States of America could become a political tool to be used to dispatch and destroy political enemies. It is with these things in mind, and the sheer lack of sensible reasons for Judge Fuller’s actions, that raises the possibility of a Federal Judge using his bench to hurt and destroy someone that he doesn’t like in an extra-legal sort of way. Did Fuller intentionally cut off the attorneys from speaking on June 28, 2007 and then belligerently disobey the higher court’s order, to make sure that Don Siegelman would be punished for questioning his integrity in the past and speaking out about his case in the present?
And there is also the forgotten-man factor. The man who was once the Chairman and CEO of HealthSouth now finds himself in federal prison and all but forgotten in the state of Alabama. Did Scrushy, who adeptly managed to beat the rap in Birmingham, become first a pawn that was used by the Justice Department as the final ingredient of a seven year quest to bring down a governor, and then was used yet again by a Federal Judge bent on imposing vindictive sanctions on a defendant in his court? If the outcry over the Siegelman investigation and trial has any merit, and if it turns out he was vindictively attacked and hurt by a willfully capricious prosecution, then Mr. Scrushy, the forgotten man, was also a victim. Fuller knew that he could not face the people at the country club if he became the second judge to let Scrushy escape from his courthouse, and he also must have known that he could impose vindictive sanctions on Siegelman because few people, in the State of Alabama, would rush to Scrushy’s defense; and questions asked about this application of justice, in the case of Siegelman, could be dismissed as partisanship. As it was the dearth of evidence in the trial that gave credence to charges of a Justice Department agenda driven by Washington, it is the similar lack of reasonable explanations behind the behavior of the Honorable Mark Fuller that likewise bolsters a notion that there was an external human element behind the application of justice in the Middle District of Alabama, and that the blindfold worn by Lady Justice might have slipped a little bit, allowing her to peek at a pre-determined outcome.
Holding the Fort in Montgomery
Meanwhile, back in Montgomery, odd nervous statements continue to be churned out of the Middle District of Alabama, supposedly emanating from lead prosecutor Louis Franklin. Scott Horton, writing for Harper’s, cites unnamed Justice Department sources as saying that Franklin has been told by Washington to stop granting interviews. Indeed, there might be good reason for this and it couldn’t come too soon for the DOJ. It seems that just when the earnestness and self-righteous rhetoric of Feaga and Franklin make an observer almost willing to give them the benefit of a doubt and buy into their impassioned circle-the-wagons defense, one of them invariably says one thing too many and it can only make the observer doubt everything. Like dominos tumbling and triggering a regressive algorithm, suddenly the lingering unanswered questions about Leura Canary’s recusal, the uninvestigated allegations of Lanny Young, the affidavit and testimony of Jill Simpson, the questions about the exact proximities of Rob Riley or Dan Gans or Claire Austin, the specter of the pre-Judge Bill Pryor, the election of 2002, the involvement of Michael Scanlon and ultimately the activities of Karl Rove, all come lurching back into view. This time, the moment arrived when Louis Franklin was quoted as saying that they were debating, in 2004, about whether or not Don Siegelman and Richard Scrushy could be convicted. Is he kidding? Franklin’s memory might contain something about a debate, but it could not possibly be this one.
Let’s go back in the time machine to 2004 to see what the merits of this “debate” might have been. Midway through 2004, Don Siegelman was indicted with Philip Bobo and Paul Hamrick by prosecutors in the Northern District of Alabama, who apparently were not a party to the debate over convicting a former governor. During the prelude to the trial that was eventually thrown out of court, the prosecution leaked much of the investigation to the press, included many allegations that Siegelman was not charged with. If Don Siegelman’s popularity was not brought down enough via his indictment, public opinion was dragged down even further by the circus-like free-for-all created by these leaked allegations. Much of this information would end up as charges that made up the 2005 indictment, charges that he was eventually acquitted of even after the public had been hearing about them for almost two years. As for Scrushy, it was only one year after HealthSouth was raided and before Scrushy’s fraud trial (in January, 2005). It is safe to say that Scrushy could not have been less popular, in 2004, and there were few people in Alabama—even amongst supporters—who did not think he would eventually be convicted of something, and that he would wind up in prison. So Franklin claims—apparently with a straight face—that they were having a debate over whether or not two of the most unpopular men in the state could be convicted by the Justice Department.
If officials in Washington have actually asked Louis Franklin to please shut up, then it is possible that they may have made this request or given this order a couple of weeks too late. When people are involved in a secret organization or are involved in a clandestine meeting, and someone asks them what was discussed, a simple truthful answer or a “no comment” might be sufficient to keep the proceedings secret, but when the answer turns out to be a lie or stretches the credulity of the public beyond the limit of the believable or possible, it again casts doubt on the nature of the speaker’s version of the truth.
So Veterans Day passes by. The “emergency” appeal is languishing in Atlanta and people are still holding the fort in Montgomery.