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The Curious Case of the Missing Transcript
As we have often noted, absolutely nothing about the Siegelman case is “normal.” Now we learn from the Associated Press notes that Governor Siegelman’s appeal to the Eleventh Circuit is being held up because there is no transcript.
The bulky transcript from the two-month-long trial has not been completed and must be available before attorneys for Siegelman and Scrushy can appeal the convictions to the 11th U.S. Circuit Court of Appeals in Atlanta. The delay was caused partly by the death earlier this year of Jimmy Dickens, the court reporter who recorded the trial, which included dozens of witnesses and mounds of physical evidence.
Siegelman and Scrushy have asked the appellate court to release them from prison while they are waiting for a final decision on the appeal — a decision Siegelman’s attorneys say might be a year or even two years away. Siegelman attorney Vince Kilborn said the delay in the appeal adds to his argument that the former governor should be out of prison while the sentence is appealed.
“I’m firmly convinced the 11th Circuit is going to reverse this case. The travesty is that we’ve got an innocent client sitting in federal prison with no hearing in sight on his appeal,” Kilborn said.
Whose fault is this? The answer to that question is simple: Judge Fuller. Under Canon 3 of the Code of Judicial Conduct, a judge is required to promptly dispose of the business before the court, and this includes an obligation to insure that a transcript is promptly prepared in any case in which a transcript is needed (as is the case with an appeal). That doesn’t mean that Judge Fuller has to prepare the transcript, of course. But it does mean that he must take the steps necessary to insure that a transcript is done and available.
Judge Fuller, however, has now engaged in systematic conduct designed to obstruct the right of the defendants to take a timely appeal from his decisions. In addition to failing to insure the availability of a transcript, he has also failed to make a proper ruling on Siegelman’s motion for release pending appeal. Indeed, his misconduct on that front has been breath-taking and has now led him into direct conflict with the Court of Appeals.
Fuller’s On-Going Wrangle With the Court of Appeals
In public integrity cases, it is conventional that defendants be granted release pending exhaustion of their appeals. In fact the cases in which this does not occur are extremely rare.
Indeed, Prof. Robert Sigler, a retired criminal justice professor at the University of Alabama Law School, put it just right in an interview he gave the Associated Press this summer:
“It’s extraordinarily unusual for people like this not to be allowed to remain free and given a reporting date or an appeals bond.”
Sigler said it appears that Siegelman and Scrushy were rushed off to prison to ensure that they would receive some punishment, even if their convictions were overturned on appeal. Otherwise, he said, “they might have never gone to prison.”
Note the source: Prof. Sigler is very close to Alabama’s Republican Governor, and Siegelman rival, Bob Riley. He has no interest in shaving things to Siegelman’s advantage.
However, fair application of the rule would have gotten in the way of the theatrics that Judge Fuller had planned for sentencing day. As that day commenced, the Montgomery court room was packed with U.S. Marshals who had been summoned by Fuller. After sentencing, Fuller directed that Siegelman be placed in manacles and dragged before the camera to provide full propaganda benefit for the Alabama Republican Party, on whose Executive Committee he had previously served (a fact the defense didn’t know until it was disclosed this summer in this space). Indeed, the event appears to have been well coordinated with the Alabama G.O.P., which immediately exploited it in press releases. Siegelman however had no prior warning and was caught by surprise. He was not even permitted to say his farewells to his wife and daughter in the courtroom.
In his haste to gain partisan propaganda benefit from the event, Fuller neglected even to rule on the motion for release, gaveling down Siegelman’s lawyer when she pressed him for a ruling.
Siegelman’s counsel then applied to the Eleventh Circuit in Atlanta for his release appending appeal, and the appellate judges, reviewing the record, found that Fuller had never even made a ruling on the motion. They sent the matter back to him for a ruling with an explanation for his decision.
Fuller responded with a terse, one-paragraph order in which he denied the motion and stated that the defendants did not have substantial prospects for success on appeal.
The Court of Appeals was not amused by Fuller’s flouting of their request. They have now issued a second order remanding the matter back to Fuller and requiring him to explain himself. The Associated Press reports:
U.S. 11th Circuit Court of Appeals Judges Susan Black and Stanley Marcus said the explanation given last month by U.S. District Judge Mark Fuller was not sufficient. The appellate judges said their review has shown that the Siegelman case is complex.
“We believe … that a more detailed explanation of the district court’s reasoning would facilitate meaningful review,” the judges said in their order, which concerned Siegelman and did not mention co-defendant Richard Scrushy, the former HealthSouth CEO who is also seeking release on appeal.
Now Governor Siegelman is cleaning latrines in Louisiana as a result of a court process which an increasingly large part of the public and Congress believe was corrupt. And Fuller continues to sit on his release.
I can posit three separate reasons for Fuller’s characteristically injudicious conduct:
The first is the point made by the Tuscaloosa News in their editorial on Friday, commenting on the growing stench from this case: “it looks like Siegelman was rushed off to prison to ensure that he would receive some punishment, even if his conviction was overturned on appeal.” Fuller was eager to have Siegelman rushed off to prison and punished precisely because he suspects, as do most observers at this point, that the conviction is going to be overturned and he wants to insure that Siegelman is punished anyway.
The second is that Fuller is eager, as the exposure of his misconduct and that of the prosecutors proceeds, to insure that Siegelman is gagged–unable to speak to the media. And indeed, the way Siegelman was moved—with no notice being loaded onto a plane with a brown paper bag and two bologna sandwiches and flown off around the country to prisons which weren’t prepared to receive him—reads like a modern retelling of the Man in the Iron Mask. Siegelman finally landed in Oakdale, Louisiana, chosen because of its distance from his family and lawyers. And while there, the Department of Justice has repeatedly refused media requests for interviews—insuring that he is, in fact, gagged.
The third is that the appeal, when it does go forward, is going inevitably to focus just as much on the misconduct of Mark Fuller as it does on Don Siegelman. Why did he fail to recuse himself when he bore a grudge against Siegelman? Why did he fail to disclose his tight associations with the Alabama G.O.P., including his service on the G.O.P. Executive Committee, and his involvement in campaigns against Siegelman? Why did he fail to disclose that, in a case brought by the Public Integrity Section of the Justice Department, it was sitting on a 39-page attorney affidavit laying out allegations of criminal wrongdoing by Fuller? Why did he fail to disclose that his personal wealth and livelihood rests on a stack of recently secured contracts, prominently including contracts with the Department of Justice? All of this puts an insufferable stink around the whole case and mandates both that the conviction be set aside and that a new judge be installed to hear the case. And it explains why Fuller is prepared to do anything to put some sticks in the wheel to slow down the progress towards an appeal.
No More Interviews for Franklin?
Sources in the Department of Justice state that main Justice is increasingly nervous about Louis Franklin’s media statements. They express distress that Franklin disclosed the fact that the two most senior career prosecutors on the case had not supported proceeding to an indictment, and his disclosure that career prosecutors in main Justice had also expressed strong skepticism. Finally, they were irritated by his confused and contradictory accounts of the role that main Justice, and particularly Noel Hillman, played in the prosecution to go after Alabama’s leading Democrat. Consequently, at the end of the week, Franklin was told he could not agree to an extended feature interview which had been requested by a major television network. In relaying this decision, I was told, Franklin was cautioned to refrain from discussing the role that main Justice played in supervising and directing the case. Evidently the DOJ’s settled media policy is that Franklin should continue to spin fairy tales to the effect that he did everything all by himself: and that’s an order.
Confessions of an Alabama Kool-Aid Drinker
David Prather is an editor of one of Alabama’s most important newspapers, the Huntsville Times. And on Wednesday, he delivered up an editorial column which perfectly demonstrates the mental integrity of his paper. It was entitled “Siegelman’s guilty, relatively speaking.” The underlying theme of the Prather rant is simple: don’t bother me with the facts, I know the guy’s a crook. Prather says that a relative in another state asked how the Alabama media let Karl Rove get away with a political prosecution of Siegelman. Prather puts things tendentiously, revealing his bias even in the dismissive way he puts a deadly serious question. Nevertheless, members of the national media now regularly ask themselves something like this when they survey the very sorry landscape of the Alabama print media. The worst species are the Newhouse papers which control the market, of which Prather’s paper is one.
So how does Prather defend himself from the charge? Well, I take his defense as a confession. Prather essentially self-diagnoses himself as a man with Tolstoy syndrome.
Right out of the gate, Prather tells us that it “can’t possibly matter” that the career prosecutors on the case were opposed to proceeding on Siegelman while the political hacks were bucking to press forward.
And then we come to Prather’s plum, his absolute proof why Rove would not have been interested:
But Siegelman, at this point in his career, wasn’t worth Rove’s trouble. The Don had bet the ranch on the education lottery that anti-gambling folks detested and people who believe in tax fairness had to hold their nose to support. When that failed, the rest of Siegelman’s administration was without a map, and degenerated into cronyism and lethargy. Can you name another governor who named his driver to head a state agency?
Siegelman’s career was on the skids, but the idea that someone is being persecuted strikes a chord in the public heart, and Siegelman and Scrushy know how to raise questions, innuendoes and uncertainty better than most.
Hmmm. Let’s take the easy point first. Yes, I can think of another case when a driver was appointed to head an agency. His name is Bernie Kerik, and he was appointed by President Bush to be Secretary of Homeland Security. . . until the FBI got wind of the fact that he was about to be indicted. Yesterday he was indicted a second time. But Bernie launched his career as the chauffeur to Rudy Giuliani, who then appointed him Commissioner of Corrections. He used that post to raise money for the New York G.O.P., by requiring all employees who worked for him and sought advancement to contribute to the Republican Party. Then he became Commissioner of Police, where he developed deep relations with organized crime. All of that and much more make for very interesting reading in the just published indictment. And it all explains why President Bush wanted to give him a key appointment in his cabinet. Kerik was obviously a very “loyal Bushie.” But, to be fair, he was a perfectly decent chauffeur. Why should we hold it against him that he was the son of a prostitute who never graduated from high school? He probably would have made a better-than-average Bush cabinet pick.
But back to the main point. According to Prather, Siegelman was dead meat, so why would Rove bother? Well, let’s set aside the fact that we have sworn testimony from a G.O.P. operative that Rove did manipulate the Siegelman prosecution, testimony which is corroborated by a small mountain of documents. And let’s put aside the fact that Rove was deeply engaged in Alabama G.O.P. politics during this period, advising the campaign of Bob Riley, William Pryor and a number of others (Prather only seems to know about the judicial campaigns back in 1992, which shows he’s very poorly informed). And set aside the fact that Karl Rove has never stepped forward to testify under oath about this and has pursued a scorched-earth policy opposing requests for his documents on the subject. Setting all that aside, we come to the simple, indisputable fact that Prather’s recollection of the facts is completely wrong. Indeed, isn’t it remarkable that someone who earns his bread and butter tracking Alabama politics could have such an acutely bad memory? Or maybe it’s just a conveniently faulty memory.
Examine the chronological record of Bob Riley’s approval numbers over the critical time period at this SurveyUSA website.
In the first quarter of 2005, as candidates start their initial overtures for the 2006 election campaign, Riley’s approval number stood at 36%. The received wisdom among political advisors is that an incumbent seeking reelection needs to have an approval level in excess of 55%; a candidate in the forties is viewed as highly vulnerable. An incumbent candidate below 40% is generally viewed as likely to go the way of the Dodo bird. In short, Riley was in deep trouble. His advisors were telling him that (a point I have now confirmed with several sources). They were telling him he needed to do something fairly dramatic to turn the ship around, or he was going to be a one-term governor. Also not much question as to who his opponent would be. At this point, the money was on a Siegelman-Riley rematch. At the moment when, according to Simpson’s testimony, Rove was being approached and encouraged to make the prosecution of Siegelman happen, a poll in Prather’s sister newspaper, the Mobile Press-Register was showing Siegelman defeating Riley in a rematch.
Now let’s parallel this to the timeline of the Siegelman prosecution. Just as Riley’s polling numbers turn sour, the prosecutors in Montgomery are being told that their conclusion that the case is a nonstarter is unacceptable to Noel Hillman, head of Public Integrity, aspirant to the bench, and man with established track record of meetings in this period with Karl Rove and Harriet Miers. Hillman and possibly other political operatives at Justice above Hillman want them to “take another look at the case,” as former U.S. Attorney Doug Jones testified and other prosecutors have since corroborated.
So Prather’s analysis is dead wrong. In fact Siegelman was a big threat. And Rove had decided to use his silver bullet—a politically directed prosecution—to bring him down.
Then Prather gives us this mysterious paragraph:
A person who claims insider knowledge about the alleged Republican machinations has lost a lot of credibility lately, but that shouldn’t be surprising. A time ago, that person told a reporter here that a local politician was involved in criminal activities. The reporter looked into it and couldn’t find a shred of evidence to support the claim.
Who is he talking about? What allegations? All very mysterious. My guess of course is that it’s Jill Simpson he’s talking about but who knows what the allegations are—he won’t tell us. But “not a shred of evidence to support the claim.” That’s interesting. Simpson has made a number of allegations to national media, and they are being tracked down now. From what I’ve seen, her most serious allegations against some high-profile Alabama political figures are holding up as solid. These allegations all concern political figures backed by Prather and his editorial page. Prather is going to read about them in the course of the next three or four months, at which point he might have occasion to reflect on this again. For the last half year all the big breaks in the Siegelman matter have come from national media, nothing has come out of Alabama, and not an iota out of the Huntsville News. Isn’t that curious? Might it have something to do with editorial perspectives? Youbetcha.
Let’s dwell on that for a second. This is a newspaper which reported on some scandalous developments concerning corrupt contracts from down in Montgomery. Governor Riley visited with its publisher to complain. And the response of this stout-hearted paper? The reporter was summoned to be lectured about his “obsession” with the corruption issue. His further stories were spiked. This tells you everything you need to know about the Huntsville Times and its interest in getting to the bottom of scandals surrounding political officials of one party.
But Prather knows that Siegelman is guilty. Why?
I looked into Siegelman’s eyes once at an editorial board meeting as he jumped up and stormed out over an innocuous question about the financial cost of supporting his sick and aging parents. What I saw was a man with some serious issues.
So there you have it. Siegelman refused to answer some questions delving into his private life. Therefore he’s a crook. Got it? Perfectly sound analysis. And remember, this guy is an editor of a major newspaper within the state.
And then we have Prather’s clencher: “nothing – nothing – of substance has been revealed since the trial to show they were wrong in this case.”
Let’s just give a quick recap of what this “nothing” consists:
sworn testimony, corroborated with documents, that Karl Rove was involved in manipulating the prosecution of Siegelman for political purposes; to advance the interests of a candidate which Mr. Prather’s editorial board heartily endorsed and continues unflinchingly to support;
admission by the main prosecutor that the senior professional prosecutors on the case believed there was insufficient evidence to proceed to prosecute Siegelman;
sworn testimony that the prosecution was directed by leading G.O.P. political figures and that a judge, Mark Fuller, was hand-picked to handle the case because he (i) had a strong personal grudge against Siegelman, (ii) was a loyal Republican, and former member of the State G.O.P. Executive Committee who “could be counted upon” to secure a prosecution, and (iii) owed his livelihood to U.S. Government contracts secured with the involvement of senior Alabama Republicans;
for added security, the judge was the target of a criminal complaint submitted to the Public Integrity Section for investigation, just as the Public Integrity Section was prosecuting the case against Siegelman;
a judge who blocked investigation of serious allegations of jury tampering in the case;
a federal prosecutor bringing the case while her husband is managing the campaign for Siegelman’s political opponent;
another federal prosecutor handling plea bargains with the case’s two key witnesses, when one offered far stronger evidence against two senior Alabama Republican officials than against Siegelman, and this was dropped (oh, by the way, the prosecutor in question is married to the lawyer for one of those senior Alabama Republican officials and is personally close to both of them);
a governor dragged from the courtroom in manacles designed to make for a partisan media event—all as arranged by the court and prosecutors;
a judge who has now defied the Court of Appeals’ demands for his explanation of his action in refusing to grant Siegelman freedom on appeal, and who has failed in his responsibility to see the transcript prepared, all in efforts to slow down the appeal.
That’s quite an impressive list of “nothing.” In the end, however, I no longer puzzle over why the Huntsville Times and its editorial board fail to write about this problem. They are the problem, or at least a significant part of it. As Walter Lippmann taught us, a democracy cannot function properly without an attentive press which fairly and accurately reports on the issues of the day, and which has the courage to speak truth to power when power turns to abuse. This paper and this editor have a very curious understanding of their responsibilities to their readers and their state.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
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