No Comment — October 22, 2007, 12:27 am

A Further Ethics Assessment on Judge Fuller and the Siegelman Case from Prof. Luban

Back on August 7, we asked Professor David Luban, one of the nation’s leading legal ethicists, to take a look at the motion which had been filed for the recusal of Judge Fuller in the Siegelman case, the Government’s response, and Judge Fuller’s ruling and then also to consider a number of further facts unearthed by our investigative series. The result appeared here. Since that time the Weeks affidavit, which evidently had been ordered placed under seal by Judge Fuller in an effort to prevent it from becoming public knowledge, has become known. I therefore asked Professor Luban to supplement his prior interview with a review and comment on the allegations contained in the Weeks affidavit.

luban-bw

7. Professor Luban, since our initial interview, an affidavit has surfaced in which a Missouri lawyer lodges, under oath and with substantial corroboration, a series of extremely serious accusations against Judge Fuller. In particular, the charges include perjury, criminal conspiracy, a criminal attempt to defraud the Retirement System of Alabama, misuse of office as a District Attorney, and an obstruction of his background check by the FBI in connection with the review of his appointment by President Bush to the bench. The affiant charges that he lied under oath in connection with the RSA claim, and notes that a former judge who succeeded him as district attorney and all of the trustees of the RSA shared that assessment. This affidavit was submitted to the Public Integrity Section, the same entity which was at that time prosecuting the Siegelman case before Judge Fuller, and which aggressively (and with extraordinarily sharp and contentious language) opposed the motion for Judge Fuller’s recusal. That motion was based on Fuller’s business dealings with the government through his closely-held company, Doss Aviation. It appears that Siegelman’s counsel were unaware of the Weeks’s affidavit. Indeed, the affidavit appears to have been placed under seal by order of Judge Fuller so as to block the public from gaining knowledge of it. Do these facts affect your analysis of whether Judge Fuller should have heard the case? Should Public Integrity have informed the parties of the fact that it had charges against Fuller before it?

As you say, the affidavit levels serious charges against Judge Fuller, and the lawyer who wrote it offers evidence to back them up. It’s written as a request to federal officials to investigate those charges. To be perfectly fair, I have to observe that the affidavit is very much an advocacy document, and a lot of it represents the lawyer’s opinions and speculations – as the author himself makes clear. It would be a bad mistake, and very unfair to Judge Fuller, to assume that these charges are true. But there certainly is enough there to warrant an investigation, if only to clear the judge’s name.

In answering your previous questions, I’ve already said that Judge Fuller should have disqualified himself from the Siegelman case. This affidavit doesn’t change that diagnosis. Does it make it stronger? Not at first glance, because the new charges in the affidavit don’t have anything to do with the Siegelman case.

But at second glance, I’m not so sure. The affidavit quotes a 2002 Alabama newspaper story saying that Judge Gary McAliley applied to Siegelman for the DA’s job that Fuller vacated – and he did so because of “questionable practices” in the DA’s office under Fuller. (¶ 63 of the affidavit.) Siegelman appointed McAliley to the DA’s job. That certainly gives Fuller a reason to be angry at Siegelman – even more so when Fuller received the affidavit and read in ¶ 74 that McAliley had started to investigate him and thought Fuller had lied. The possibility of personal anger against Siegelman on Fuller’s part is just the kind of thing that the judicial disqualification law tries to guard against. You simply can’t preside over a criminal case against somebody who appointed a DA to investigate you!

What’s even more startling is that the lawyer sent this affidavit to the Justice Department’s Public Integrity Section in 2003 – so that at the moment that PIN was signing papers in the Siegelman case attesting to Fuller’s judicial rectitude, it had in its possession a 39-page detailed accusation against Fuller that gives ample grounds for PIN to investigate him. And, as I suggested, once PIN took a public position in the Siegelman case about Judge Fuller’s rectitude, it became harder for PIN to do its job of investigating Siegelman in the other matter.

And, what’s worse, one of the accusations in the affidavit is of exactly the same kind of misbehavior that Siegelman was protesting: refusing to disqualify himself from hearing a case when a reasonable person would question his impartiality in that case. Take a look at paragraphs 95 and 96. The Retirement System of Alabama – the RSA – turned down Fuller’s request for a $70,000 raise for one of his employees, and in the course of doing so questioned the integrity of Fuller’s reasons for making the request. In an entirely different matter, RSA is suing Enron, and Judge Fuller was hearing the case. RSA apparently moved to have him disqualify himself on grounds of possible bias against RSA, and Judge Fuller refused. That’s just what happened in the Siegelman case.

My question is this: Having this affidavit in their possession, with this particular accusation in it, why did PIN go out of their way to support Judge Fuller’s decision not to disqualify himself in the Siegelman case? At the very least, it shows remarkably bad judgment on the part of PIN.

I want to emphasize that I don’t have any idea whether the charges in the affidavit are true. The affidavit is very one-sided, and its author puts the most sinister interpretation on all the facts he cites. Maybe he’s right, maybe he isn’t. My point isn’t about the new charges, but about the way that both Judge Fuller and PIN responded to the affidavit – or rather, failed to respond to it.

lubanbook_004

David J. Luban is the author of a number of important books on law and legal ethics, including, most recently, Legal Ethics and Human Dignity published by Cambridge University Press, which can be ordered here.

“If the rule of law is a necessary condition for human rights and human dignity, lawyers in all fields will play a vital role in securing these goods. And the ethical character of the legal profession – the commitment of lawyers to the rule of law and the human dignity it helps secure – will determine whether the rule of law is anything more than a slogan.” David Luban in Legal Ethics and Human Dignity (2007).

Share
Single Page

More from Scott Horton:

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

September 2015

Weed Whackers

= Subscribers only.
Sign in here.
Subscribe here.

Tremendous Machine

= Subscribers only.
Sign in here.
Subscribe here.

A Goose in a Dress

= Subscribers only.
Sign in here.
Subscribe here.

The Genealogy of Orals

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Romancing Kano·

= Subscribers only.
Sign in here.
Subscribe here.

I recently spent a semester teaching writing at an elite liberal-arts college. At strategic points around the campus, in shades of yellow and green, banners displayed the following pair of texts. The first was attributed to the college’s founder, which dates it to the 1920s. The second was extracted from the latest version of the institution’s mission statement:

The paramount obligation of a college is to develop in its students the ability to think clearly and independently, and the ability to live confidently, courageously, and hopefully.

leadership
service
integrity
creativity

Let us take a moment to compare these texts. The first thing to observe about the older one is that it is a sentence. It expresses an idea by placing concepts in relation to one another within the kind of structure that we call a syntax. It is, moreover, highly wrought: a parallel structure underscored by repetition, five adverbs balanced two against three.

Article
The Prisoner of Sex·

= Subscribers only.
Sign in here.
Subscribe here.

“It is disappointing that parts of Purity read as though Franzen urgently wanted to telegraph a message to anyone who would defend his fiction from charges of chauvinism: ‘No, you’ve got me wrong. I really am sexist.’”
Illustration by Shonagh Rae
Article
Gangs of Karachi·

= Subscribers only.
Sign in here.
Subscribe here.

“In Karachi, sometimes only the thinnest of polite fictions separates the politicians from the men who kill and extort on their behalf.”
Photograph © Asim Rafiqui/NOOR Images
Article
Weed Whackers·

= Subscribers only.
Sign in here.
Subscribe here.

“Defining 'native' and 'invasive' in an ever-shifting natural world poses some problems. The camel, after all, is native to North America, though it went extinct here 8,000 years ago, while the sacrosanct redwood tree is invasive, having snuck in at some point in the past 65 million years.”
Photograph by Chad Ress
Article
The Neoliberal Arts·

= Subscribers only.
Sign in here.
Subscribe here.

“College is seldom about thinking or learning anymore. Everyone is running around trying to figure out what it is about. So far, they have come up with buzzwords, mainly those three.”
Artwork by Julie Cockburn

Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:

65

An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.

A naked man believed to be under the influence of LSD rammed his pickup truck into two police cars.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today