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.
Under the long shadow of a years-ago recusal of the US Attorney from the Middle District of Alabama, and just days away from the commencement of a Congressional hearing, Louis Franklin has yet again stepped up to defend and explain the integrity of his District. Almost two years since the indictment was unsealed, over a year after the District won a conviction and months after the defendants have been sent to prison, the prosecutors continue to defend their actions with denials and now childish name-calling instead of open, honest and forthright answers to legitimate questions. The latest proclamation takes aim at a broad range of the questioning voices, but Franklin’s statement is most likely meant to coincide with the publication of national print coverage in Time magazine. The tone and tenor of the various District proclamations has evolved over time regardless of who’s name appears at the top or bottom of the documents, and they appear to be the work of multiple authors. Just as reliable sources have said that the case was pushed from Washington over the early objections of the Middle District prosecutors, there now appears to be an unseen hand pulling the strings and speaking through Mr. Franklin.
Like one of the last soldiers on the rampart, defending the indefensible, it is not that difficult to have some sympathy for Louis Franklin and what lies ahead for him. It is so much better to be on top of the mountain than to be underneath it. And if we look at the piles of unreleased documents, the unanswered questions, the mounting denials without proof, that mountain is becoming formidable and it must be a great weight looming over justice as it is being played out in the Middle District of Alabama. But it is not only Siegelman. Franklin’s lone howling voice, coming from a proclamation of dubious authorship, is even more plaintive, more alone, more weak, more hollow when taking into consideration that Siegelman-like prosecutions seem to be breaking out all over the country. There is Georgia Thompson in Wisconsin; Paul Minor in Mississippi; Geoffrey Fieger in Michigan, and Don Siegelman in Alabama. That is the growing mountain that Louis Franklin and Steve Feaga and Leura Canary find themselves under. There will be more written on The Mountain in coming articles, but all four of these cases share more than a few common threads. (For instance, Noel Hillman’s fingerprints are liberally slathered over all four cases; the cloud created by the Thompson case featured a familiar blueprint of a Republican Congressman running against the Governor on an ethics platform. Before their indictments, Fieger, Minor and Siegelman had all recently taken high profile stands against the current administration, and had demonstrated support for opposing candidates.) This is ultimately not about Republicans or Democrats, because when the already high price attached to the blood sport of politics and public service has been elevated to an individual’s complete destruction, a ruined career, and imprisonment, everyone loses. Everyone.
In this climate, when the denials are backed up with foot-dragging, withheld documents and obfuscation, it is difficult to believe Franklin’s repetitive rhetoric even while it is easy to be sympathetic with the plight he is in, and with his career and professional integrity swaying in the balance. Even though the notes on this site are not likely to show up on the radar, and even though Franklin was most likely taking a preemptive shot at Time Magazine, I still say that it is easy to by sympathetic with the prosecutor even after his latest proclamation has called me an ignorant liar.
The mantle of the “Siegelman supporter:” The observer characterized by Mr. Franklin as the Monday Morning Quarterback or a person who doesn’t have all of the facts. (I generally and usually try to leave myself out of these notes, as I prefer to let the story tell itself. But as Louis Franklin has found it necessary to [repeatedly] respond to what he perceives to be an attack on himself, I likewise feel the need to respond to his attack.]
As before, I feel certain that Louis Franklin has little regard for whatever has been said in these notes, and that his comments were directed more at Scott Horton, writing for Harper’s, and at the coverage and attention that the case has been given by Time Magazine (both print and online versions) and perhaps some of the wide-circulation blogs like the Daily Kos. But nonetheless, I have written some articles critical of DOJ’s efforts in the Middle District of Alabama, and especially as it relates to what appears to be a deliberate effort to blur the lines and to avoid a revelation of the whole truth, in this manner. The media and the Middle District often refer to comments and articles that are published in various places, as being put out by “Siegelman supporters,” with the implication that contrary facts or truth would be overridden by their support for Don Siegelman.
Unlike some people whom Franklin is more likely directing his comments toward, I was at the trial, in the courtroom, every day, including the empanelling of the jury and the sentencing hearing. As some people know, who have frequently read or have stopped by this site for the almost three years that it has been in existence, my original interest was Richard Scrushy, and I have been tracking the twists and turns in his case for over four years now. I came to Montgomery not because there was a political prosecution going on or because Don Siegelman was on trial, but because Richard Scrushy was there. And when I came to Montgomery, I had a completely open mind, and was perfectly willing to listen to the cases of the prosecution and the defense, to see what the outcome would be. Not only was I willing to except a strong prosecution case and a guilty verdict, I expected nothing less. I was aware that Siegelman had been claiming that the case was politically motivated and that Scrushy was likewise claiming that he had been swept into a Siegelman witch hunt, but quite frankly, I was skeptical. I do not easily buy into wild-eyed conspiracy theories as I have a tendency to generally believe our government is on-the-level and honest, even if I don’t always agree with some officials. Politicians often, if not always, claim that charges are politically motivated and in the fast-and-loose unraveling days of HealthSouth, I thought Scrushy could have done something like what he was being charged with.
It was only days into the trial when I first became appalled at the sheer lack of evidence that was being presented against Siegelman, Scrushy and the others. This was the first red flag that went up the pole. It wasn’t the claims of Siegelman or his supporters, it wasn’t any preconceived animosity against Feaga, Franklin, Gonzales or the DOJ, it certainly wasn’t any firm belief in the innocence of Scrushy; but it was the evidence and the manner in which the trial was being conducted. I have always said that I’m not a journalist who needs to sell papers in the morning or next week, but I am more interested in the whole story as it plays itself out. So I then went and read everything I could find about Siegelman—all the Eddie Curran articles, all the articles and legal documents about the first indictment against Siegelman, Hamrick and Bobo, all of the editorials for and against Siegelman—and I found a governor that made mistakes, there is no denying that, and a governor who’s mistakes may have been legitimate campaign issues that would have to be decided by the people. I also found a lot of good things that Siegelman had done, and in a fair and honest election, the people would have to make an informed choice by evaluating his mistakes along side of the positive things he had done for Alabama. But was there anything in these matters that should be elevated to ruining a man’s life and career and putting him in prison? I couldn’t find that. Anywhere. Not in the issues past and present, and not in the evidence presented at the trial. And as the trial wore on, it became painfully apparent and obvious that Hamrick, Roberts and Scrushy were all being used as tools to culminate a six-year investigation with the goal of finally bringing down a governor; it became clear that Nick Bailey was just another tool, and that his misfortunes were being shaped, contrived and molded in order to craft an alternative version of the truth. And once again, I was appalled that our government, my government, would recklessly and malignantly use individuals to satisfy their own selfish goals. In the military, they call this collateral damage and a risk factor is usually assigned that sets a level on how much collateral damage is acceptable, depending on the value and need of taking out a particular target. In Alabama, the lives of at least four people were ruined or seriously harmed. What value did this reckless action have to justice and our country?
In the aftermath of the trial, questions continued to be asked, and more red flags were running up the pole. Besides the wanton use of human collateral damage, and besides a lack of evidence in a case that appears to have been a strident crusade against a former governor, there were many other questions that heightened the suspicion-factor. There was the refusal of the recused US Attorney and the DOJ to turn over supporting documents behind her recusal. US Attorney Leura Canary recused herself because she was involved in the early stages of the investigation, but there are lingering questions effectively hidden by withheld documents about the exact nature of the nascent prosecution. Canary’s husband, Bill Canary, is an associate and one-time partner of Karl Rove, and he has spindly relationships to several people who were either political opponents of Siegelman or were involved in his prosecution, including Bill Pryor, Alabama’s former Attorney General, and Bob Riley, the current governor. Instead of coming clean with the documents behind her recusal, the District is instead relying on the unbacked-up denials of the Acting US Attorney. There is the DOJ’s refusal to turn over any documentation about the process and procedure behind bringing these charges. There is the DOJ’s refusal to investigate documents that could indicate the jury was improperly and illegally in collusion before returning a verdict. There is the judge who has exercised his discretion to make sure the defendants are punished even if they mount an effective and creditable appeal. And with all of these issues outstanding, it is simply difficult not to continue to raise questions over the hollow denials and self-righteous indignation of the Acting US Attorney.
Knowing about the Scrushy situation as well as I did (and having sat through his six month trial in Birmingham) it became apparent that from the DOJ’s perspective, the linking of Scrushy to Siegelman was a brilliant move, and the hopes of the prosecutors were being pinned on parlaying the anger against Scrushy’s acquittal into a cobbled together conviction of an ex-governor. I had this thought throughout the trial, and when it was confirmed by the juror’s emails that Louis Franklin or Leura Canary, or whoever is in charge in the Middle District, refuses to investigate, then the flag pole was getting crowded with all of the red flags fluttering in the breeze.
I am a citizen of this country who is as interested in the truth as Louis Franklin claims to be, and I resent being called a liar and yes, it is difficult for me to accept his version of the truth based on unsupported denials when there is all of the racket from the banners that are fluttering over my head.
It would seem that even the most ardent hope-he-rots-in-prison Siegelman haters would want the clouds and fog that hover over the government’s investigation to be lifted. If everything was put on the table and it turned out that it was a righteous prosecution that was the end result of a forthright investigation, they could claim a victory for the American system of justice, and walk away. If nothing else, putting everything on the table would allow the people who are involved in the investigation and prosecution to quit making contradictory unnervingly absurd statements. Besides the bunker mentality that surrounds and protects the mechanism of the Siegelman prosecution, it is these statements that tend to underscore the official nervousness that is becoming increasingly apparent at the Middle District of Alabama, it is these statements that make it uncomfortable for even true believers of the means, methods and motives of the prosecutors, and it is these statements that fuel the very reasons why questions continue to be asked.
In the last couple of weeks, there have been a couple of glaring examples of the self-contradictory nature of the proclamations from Montgomery’s DOJ outpost:
Years after US Attorney Leura Canary recused herself from the investigation and eventual prosecution of Don Siegelman, she has been making statements about a case that she is not supposed to be participating in. If Leura Canary, wife of one-time Rove associate Bill Canary, had truly dismissed herself from the case for whatever reasons are contained within the over 500 pages of documents that are being withheld despite FOIA requests, then she would not have sufficient knowledge or insight into the mechanisms and development of the case to make any sort of meaningful comment about it. If the case was not being surreptitiously directed by her or by DOJ higher-ups, then it would be impossible for her to comment on the efforts of Acting US Attorney Franklin or AUSA Feaga. But yet she has come to her prosecutor’s defense, offering declarative statements about a case in which she was not supposed to have been any part of. It is an uncomfortably absurd moment not unlike a judge who has recused himself from the bench for a particular case, but continues to comment on points of law and the merits of the various litigants. If Leura Canary was not a participant in the investigation and prosecution of Don Siegelman, then what is the basis of her commentary?
And not to be outdone by the boss, the level of contradiction reached a new high in published quotes attributed to Louis Franklin. When asked about the over 500 pages of withheld documents pertaining to Leura Canary’s recusal, Franklin said: “I don’t know what’s in those pages.” OK, so Louis Franklin is in the dark and the only person that knows the contents of that tome is supposedly the Canary’s and the DOJ keepers who refuse to disclose their contents. But then after making that statement, he is reported to have said there was nothing sinister about Canary’s recusal. And there we fall into that frustrating problem again. If Louis Franklin really doesn’t know what is contained in all of those documents, how could he possibly know there was nothing sinister about the recusal?
Five hundred pages and someone is afraid of something because it doesn’t add up: The prosecutors have continued to argue a case long after the defendants have been sent to prison; the trial’s star witness all but admitting that his testimony was shaped by his prosecutor-handlers, and openly regretting that he had taken a plea deal; Louis Franklin says he doesn’t know what is contained within pages and pages and pages of withheld documents, yet he makes the illogical assertion that there is nothing sinister about the contents or the recusal the documents reference; Leura Canary continues to discuss a case she claims to have not participated in and knows nothing about, and with all of these unsettling contradictions, it is simply difficult to feel comfortable that justice has been served even if we really try.