No Comment — August 3, 2007, 11:16 am

Judge Fuller and the Trial of Don Siegelman

In the American criminal justice system, in a case presented to a jury, the trial judge is less a searcher in pursuit of truth than a referee. As long experience has shown me, it is a myth that the two forces—prosecution and defense—are equally matched. Not only does the prosecution have greater resources and influence, but the typical juror is likely to view the prosecutor as a public servant crusading for the truth and the defense counsel as a gun for hire.

It’s the responsibility of a judge to ensure balanced and fair combat between the prosecution and the defense, guiding and protecting the jurors from outside and improper influences. A good judge will not only make sure that a balance exists in the courtroom, but will pare back inflated charges, or charges for which there is not enough evidence.

Given these standards of judicial conduct, we can ask: in the case against Don Siegelman, did Mark Fuller perform the essential functions that the citizens expect of a federal judge?

Five Unasked Questions
I can see five major questions that should have been asked before the trial began.

The first question was whether it was appropriate for Judge Fuller to handle the case given his highly partisan political past coupled with his clash with the Siegelman administration over the “salary spiking” case in Coffee County.

The second question is why, given that a case against Don Siegelman had been commenced in Birmingham before Chief Judge U.W. Clemon, ending in a dismissal with prejudice, the federal prosecutors were suddenly before a new grand jury in a new district. Conventionally, criminal claims against a defendant are joined, but here they were not. There seem to be plenty of illegitimate reasons for this strange bifurcation, the most troubling being that the prosecutors were busily shopping for a judge to their liking—a very dubious practice, and something that judges should guard against. But Judge Fuller raised no questions on the matter.

The third question is why the prosecution was permitted to use the Racketeer-Influenced and Corrupt Organizations Act (“RICO”) as the basis for its case against Siegelman. RICO was developed in the late 1960s to provide prosecutors more reach to fight organized crime. The use of this statute in cases involving political corruption charges is problematic for a number of reasons, among them because it begins a process of marking government functions as organized crime—which in itself undermines public confidence in government. As Harvard’s Arthur Maass said, applying RICO in such cases is “unauthorized, out of control, and overall questionable.” For this reason, it has often been urged that the RICO statute be used extremely sparingly, if at all, in political cases. Procedures are in place which limit its use and require approval at a very high level in the Department of Justice in Washington, D.C. In the Siegelman trial, the essence of the prosecution’s case was what Notre Dame law professor G. Robert Blakey, a former prosecutor who wrote the RICO statute, calls the “trashcan theory of prosecution.” The prosecution’s case was, essentially, a dog-and-pony show: countless facts were presented, and the jury was asked to see corruption behind every deed. As Alexander Hamilton once observed, when a prosecutor makes enough claims of wrongdoing against an innocent man, he is very likely to get a conviction on something. The use of RICO in this case is one of the telltale signs that the prosecution is politically motivated and driven. In fact, a former senior Justice Department lawyer who requested anonymity told me:

Congressional investigators need to probe into the process by which the RICO charges were brought in this case. I believe they will find a trail of politically incendiary decision-making in which established practices and procedures were cast to the wayside in a vendetta-like prosecutorial effort.

The fourth question is why the case was built by linking Siegelman to his adversary Richard Scrushy, the notorious executive of HealthSouth. Scrushy had supported Siegelman’s Republican opponent, and was himself a Republican. However, Scrushy had already been tried and acquitted in Birmingham, and many in the state were seething over the botched prosecution. There was a broad public demand for Scrushy’s head. Given this situation, the linkage between Scrushy and Siegelman was weak and highly prejudicial to Siegelman. The judge should have investigated whether prosecutors were attempting to capitalize on public anger against Scrushy to “get” Siegelman—but I can find no evidence at all that Fuller examined this possibility.

The fifth question has to do with press coverage of this case. The leading newspapers in two of Alabama’s major cities—Birmingham and Mobile—are sibling publications under joint ownership. They gave extensive and tendentious coverage of the investigation and prosecution of Don Siegelman. And these papers had access to nearly every aspect of the prosecution’s case, including its witnesses and its evidence. They knew the charges before their formal presentation; they even knew in some detail what transpired before the grand jury. The press is free to make inquiries and publish what it learns, and the more the better. However, the prosecution is obligated to maintain the secrecy of the proceedings, and the disclosure of grand jury secrets by the prosecution is a very serious violation of Rule 6(e) of the Federal Rules of Criminal Procedure. Usually the publication of grand jury secrets in the press is taken as sufficient for a judge to trigger an inquiry into violations of Rule 6(e) by the prosecution. In this case, the federal prosecutors openly and publicly lauded the newspaper reporters who were disseminating their materials. This practice of “poisoning the well” is extremely abusive and the judge should have stopped it. But not Judge Fuller.

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