Report from Birmingham

The shouting has barely died down from the election of Barack Obama—whether it has come from the noisy rounds of tears, or teeth-gnashing or cheers or sobs—when in a quiet courtroom in downtown Atlanta, three judges sat to hear thirty-minutes of oral arguments in the matter of the United States of America v. Scrushy and Siegelman.

It has been a pair of cases that have been running, in one form or another, for over five years. And in those long years, the strands of the two legal cases have become a hydra that has gone in many directions and has had many heads. Corporate fraud and political corruption are simple concepts that want for simple explanations and simple solutions. In our staccato well-connected lives, we almost demand this kind of easily digestible news stories, so we can move on. Scrushy was an Alabama icon who was supposed to be too rich to be caught up in a fraud scheme and had too much of a brazen swagger to be acquitted when the feds swooped in. But he was. Siegelman was the unlikely populist democrat who was the governor of a red state, and he was—and still is—loved by throngs of people while at the same time was—and still is—hated by a large crowd who think the state would be better off with Siegelman in jail or otherwise removed from the political process. And both men liked to walk right along the edge, the no-man’s land at the outer limits of what the rest of us would consider safe and secure. Indeed, they thrived on it. And that is where the nuances lie. As a hydra, the two now-fused cases have had many dimensions too numerous and detailed to be outlined at this time in this short space, but it is in the nuances that Donald Siegelman could never be painted as Ron Blagojevich and Richard Scrushy could never be a Bernard Madoff.

About once a year, since this has been going on, it is like reassembling the gang, this time in the somber oak and marble great chamber of the 11th Circuit Appellate Court, in Atlanta. Four years ago, in Birmingham, there was the assembly that began with the home-grown defense team and the out-of-place looking Justice Department attorneys from Washington, and there were the various news outlets whom I knew more by their affiliations in lieu of their names. The AP-guy, Bloomberg, USA Today. Kim Chandler for the Birmingham News, Kyle Whitmire for the Birmingham Weekly. And award-winning journalist Eddie Curran, now on leave from the Mobile Press-Register to write his book about breaking the stories that led to these periodic assemblies. Sometimes the national guys would show up and would make the local press titter a little bit, like John Helyar from Fortune or the guy from the Wall Street Journal.

And it assembled again for a couple of months in Montgomery, an effort that famously ended with smiles and posed pictures, and the atmosphere of a college dorm at the end of a semester. A ’see you next time’ kind of jocularity. There was also that. And a year later, there would be another meeting for the three-day affair that ended when Scrushy and Siegelman were jerked out of the courtroom and hustled off to prison. That gathering was the beginning of an 8-month odyssey for Siegelman but has turned into a multi-year stretch for Richard Scrushy. Something about a yacht.

So most of the familiar faces were here once again, in Atlanta. It has been over four years and we still don’t talk or associate much because what they do and what I do are rather different and discordant, for whatever each-side’s contributions may be worth. I still can remember that cold day in Birmingham, on the first day of the Scrushy fraud trial, and a reporter was telling me in disgust that she would rather be at home watching Teletubbies than being stuck in a courthouse downtown. I didn’t bother to tell her that I drove over 500 miles and that I was ready to live in a hotel for six months, just to be there. That too. People still ask question that have no real answers.

So it all winds and rolls and ends up in Atlanta. Besides having the local press corp make a road trip, what happened this time?

After a short power outtage, the day’s docket began with three cases which were probably being argued on behalf of people who were just as anxious as those who awaited the outcome of this proceeding. There was a question concerning someone who committed fraud against FEMA; there was the question of someone who wanted to revisit the issues of his case on the basis of a motion submitted after the time he could appeal had expired; there was a question about the money seized in a Montgomery drug case, something that the defense lawyer hinted was akin to a DOJ money-laundering scheme. And then the people arguing on behalf of Siegelman and Scrushy were allowed to address the court for their ten minutes at the bar.

The oral arguments highlighted three main issues: 1) The obstruction of justice charge which was the one (non-Scrushy) bribery charge Siegelman was convicted of. This had to do with the sale of a motorcycle that the government contended was to cover-up part of the alleged Lanny Young-Bailey-Siegelman pay-for-play scheme. 2) The quid po quo issue, specifically whether or not Judge Fuller gave the correct interpretation of a quid pro quo to the jury. From a legal standpoint, this issue has always been the crux of the matter in terms of how this case was prosecuted; and 3) The issue about the emails that were supposedly sent between jurors that proved there was juror misconduct in the form of obtaining information from outside sources and engaging in ex-parte deliberations about the subject, along with clear evidence that at least some of the jurors were not truthful about their prejudices.

Beginning with the obstruction of justice charge, the prosecution’s focus on this particular charge is interesting because it highlights competing legal strategies. Although Siegelman’s attorney argued against both the quid pro quo aspect and the obstruction count, the government’s attorney argued almost exclusively in support of the obstruction charge, and said nothing about the quid pro quo. There may be at least two reasons for this: 1) The judges seemed to at least be mulling over the obstruction charge. One of the questions they asked Siegelman’s attorney was: “Did the jury not believe Bailey,” indicating that if it came down to the juror’s impressions, then it was not a matter that would have legal standing in the appellate court. Siegelman’s primary argument, about this charge, was that Bailey’s testimony indicated that the sale of the motorcycle was his own idea, and that his actions regarding Bailey would not meet the legal standards of being persuaded. 2) The prosecution may have focused on the obstruction charge in the event that the quid pro quo count may merit a hearing by the Supreme Court. Legal sources tell me that if the appellate court does not overturn the lower court’s ruling on the quid pro quo charge (i.e. the Scrushy-Siegelman C.O.N. Board bribery charge) AND they let the obstruction of justice charge stand, then the Supreme Court won’t hear the case. The Supreme Court would likely only hear the case if there is only the one outstanding issue, hence this may give a strategic reason behind focusing only on the obstruction charge.

With the above caveat in mind, however, the judges seemed to have some favor for the defense’s quid pro quo argument, or at least they may not be in unanimous agreement against the argument. Questions asked by the judge, on this matter, included: “Can you prove violation of a statute by circumstantial evidence,” and “Did a contribution take place to get a specific action?” The defense conclusion was that there was insufficient evidence to prove this, and that Bailey’s “What’s he going to want?” and his responses seem to prove that there was no quid quo quo. On this issue, one of the judges proved how well he knows this case, via the transcripts, when he helped out Siegelman attorney Sam Heldman by correcting his recitation of Bailey’s words (Heldman misquoted Bailey by saying, “What’s he going to want for that?”and the judge pointed out that Bailey’s comment was ambiguous and that he never said: “for that.”) Although their probing questions seemed to indicate they had not made up their minds, on this issue, it did appear that they felt Siegelman’s arguments were somewhat valid. However, although the judges were skeptical of the quid pro quo charge, they seemed to be determined to find Richard Scrushy guilty of something. They asked some questions that appeared to somewhat isolate Scrushy in that they pertained to actions that the C.O.N. board took after Scrushy had left it to his HealthSouth successor. This fixation on these actions seemed to deviate from what anyone else was arguing.

And finally, there was the question of the emails. Although the defense raised some valid points, notably 1) That Fuller didn’t ask the jurors the right questions; 2) That Fuller should have called for a thorough investigation into the matter; and 3) That a limited investigation was apparently going on without the knowledge of the defense. But during these arguments, it became relatively clear to me—at least from a view from the gallery—that the emails were probably bogus. It appears to me that someone attempted to spam the coworkers of the jurors in question in order to get the incriminating email in the right box. And then produce a copy of the incriminating email that was allegedly on the juror’s computer. This observation doesn’t invalidate the need for an investigation, and it is true that Fuller should have given more weight to the matter, but it seems that the outcome of such an investigation would only bolster the prosecution’s contentions. Indeed, the defense argued that Fuller had not asked a pertinent question that the prosecution was not opposed to. It is true that the judge didn’t, and he should have, but it is also likely that the prosecution was not opposed because they knew the question would only verify their assertions. And to veer away, just for a moment, in consideration of these emails, it is worth looking back at the long history of Richard Scrushy (those five years and beyond). It is quite possible that his reputation precedes him (as it might have done in consideration of the aforementioned questions from the Appellate Justice) and it has once again hurt him, as it did with the yacht incident. One of the judges made the seemingly innocuous comment that many of “Scrushy’s friends” had written letters to Congress and others. In mulling this over, the implication might have been that Scrushy attracts a lot of overzealous people, and they might be the ones who were behind the juror emails. And this has always been one of the problems with tracking Richard Scrushy as these things are among the many nuances that live along the edge. People with a long (or perhaps not so long) memory might remember the stories and legends about Scrushy—and particularly surrogates on his behalf—tracking down detractors on the Internet. It is worth noting that for at least some of this activity, they were entirely justified and were doing it for good cause, as there were people spreading slanderous lies about Scrushy, but then there were people who were saying that something was going on with the stock at HealthSouth, and these people were as zealously hunted as the people who were actually spreading slander. It is this duality that has always made the Scrushy story hard to track. And now there are three judges on an Appellate Court in Atlanta who are scratching their heads. Welcome to the club.

In the end, there were no long eloquent speeches, no thunderous pleas as were often the rhetorical diet du jour of the District Court. That time has passed. All of that is gone and this is just a brief assembly to inch a little closer to a final resolution. There was nothing in the hearing about a politically motivated prosecution or Karl Rove; or about Leura Canary and a DOJ agenda. It was not that time or the place. In the end we want the easy answers of the crusader that we can plug into easy solutions. Not this time. Not in Atlanta.

There is still very much to say about this situation but it is still very much an ongoing process. The fact that the pervasive fear and hatred has seeped into the Appellate Judges consciousness is a tribute to what this case means to all of us, and a monument to how successful the government was in using an innocent man to satisfy the desires of the mob while achieving their own selfish-interests. The further evidence of how well this was achieved is the lack of coverage given to Scrushy by the press. Most of the press thinks Scrushy is guilty. They mostly think he should be in jail. Yet at the same time, they make a case that Siegelman was set up, that he was targeted by a politically motivated prosecution. The flimsy nature of the case and the paucity of evidence have made me believe this version since I saw it with my own eyes, in court. But it also means that if Siegelman was victimized then Scrushy was too. (This is of course not meant to be a blanket endorsement of everything-Scrushy. I understand why many people hate him and understand why there are many people who have feared him and fear him still. And I still have questions that I hope to have answered before I’m done with all of this. But there was a ton of reasonable doubt in Birmingham.) It is a further tribute to the government’s success that Siegelman is still one-off from a hushed courtroom, speaking through legal mouthpieces, instead of riding the crest of a wave of a pubic that wants to know how this could happen, that wants to know—once and for all—if the political arguments that were subjugated under the legal technicalities of a quid pro quo, have any merit and should be allowed to stand in America.

Stay tuned.