SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
Over the last two months I have examined many different aspects of the Justice Department’s prosecution of former Governor Don E. Siegelman. The controversy around Karl Rove and the Justice Department is often cast as a scandal concerning the U.S. attorneys and the prosecutorial function. But the scandal actually has more to do with the administration of justice—and thus with the role of the judiciary.
As I noted, four federal judges have played a role in the Siegelman case—two of them served as prosecutors, building and bringing the case, and two in hearing the charges. Of the latter group, the one who claims title to being “Siegelman’s judge” is Mark Everett Fuller. Fuller presided over Governor Siegelman’s trial and sentenced him to prison.
In a series of posts starting today and continuing over the next couple of weeks, I am going to examine Fuller’s role in the Siegelman case: who is he? How did he come to be a federal judge? How did he conduct the trial? The Siegelman case, I believe, offers us great insight into the broader issue of the politicization of the criminal justice process, an issue that is front and center in the American political dialogue today.
First, Some Background
In 2002, Don Siegelman lost the governorship of Alabama to Bob Riley by 3,000 votes, raising suspicions of electronic vote tampering. According to an affidavit
In November 2003, one year after Siegelman’s defeat, the Mobile Press-Register published a poll showing that in the event of a rematch between Riley and Siegelman, Siegelman would prevail.
The Tuscaloosa Case
In May 2004, Alice Martin brought the case on claims that Governor Siegelman, with two other men, had been involved in an effort to rig bids on a state project in Tuscaloosa. After a series of recusals, the case came before the Chief Judge of the Northern District, U.W. Clemon, in Birmingham. As reported in the Montgomery Advertiser, Martin was opposed to Clemon handling the case and attempted to force his recusal. Clemon, however, rejected the Justice Department’s request that he step aside. He also refused to allow the defense to portray the proceedings as a “political conspiracy,” but also expressed skepticism that the government had enough evidence to make out a case of conspiracy, which was the principal count. In my analysis of the case, I found that Clemon asked penetrating questions of the prosecutors, and when their answers reinforced his suspicions, he demanded that they present a prime facie showing of their case before allowing the matter to proceed. When they were unable to do this, Judge Clemon dismissed the conspiracy case with prejudice, and with that, the first effort to prosecute Siegelman imploded in October 2004.
Enter Mark Fuller
But there was more to come. In October 2005, federal prosecutors indicted Siegelman on new corruption charges in Montgomery, Alabama, a different judicial district distinct from the Northern Alabama district in which Clemon had previously dismissed similar charges without prejudice. In theory, federal judges are assigned to cases at random. But according to a well-placed Alabama GOP source who wishes to remain anonymous, some senior figures in the Alabama GOP appear to have known from the start that this case was going to be handled by a man they counted a friend, namely, George W. Bush–appointee Mark Fuller. Regardless of whether the GOP had the power to influence case assignments, Mark Everett Fuller was in fact assigned as judge who presided over the grand jury proceedings in this second effort to prosecute Siegelman.
Fuller was born in 1958 into a well-to-do family with an entrenched position in Alabama Republican politics. I spoke with some of his former college classmates, none of who wanted to be named. They described him as a decent student—though never an intellectual standout. Fuller was a member of the Tuscaloosa chapter of the Kappa Sigma fraternity. He is repeatedly described as being right at the center of the University of Alabama’s fraternity culture, and all who recall him remember that he was very deeply involved in Alabama Republican politics.
Fuller was nominated by President Bush and confirmed to the federal bench in November 2002. His nomination proved completely uneventful, and he was whisked through the review process. While Washington, D.C.-based organizations like People for the American Way and the Alliance for Justice were prepared for battle over Bush judicial nominations, Fuller himself was not a target.
Prior to his appointment in 2002, Fuller had no meaningful judicial experience, but he had served for five years as a prosecutor as District Attorney for Alabama’s 12th Judicial Circuit. So while his qualifications were fairly thin—he had neither judicial nor federal prosecutorial experience, which are usually considered desirable for candidates for a federal judgeship—his experience met the minimal threshold for a federal judgeship. Significantly, he had solid backing from the Alabama Congressional delegation—from its two Republican senators, and from Alabama’s powerful Second District Congressman, Terry Everett, Fuller’s mentor.
Evan Magruder contributed to this post.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
Number of U.S. congressional districts in which trade with China has produced more jobs than it has cost:
Young bilingual children who learned one language first are likelier than monolingual children and bilingual children who learned languages simultaneously to say that a dog adopted by owls will hoot.
An Oklahoma legislative committee voted to defund Advanced Placement U.S. History courses, accusing the curriculum of portraying the United States as “a nation of oppressors and exploiters.”
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”