No Comment — July 24, 2008, 1:20 pm

New Allegations of Prosecutorial Misconduct in the Siegelman Case

When Attorney General Michael Mukasey appeared as a nominee before the Senate Judiciary Committee, senators led by New York’s Chuck Schumer expressed their concern about the highly suspect prosecution of former Alabama Governor Don E. Siegelman. The questions have continued through almost every appearance that Mukasey has made before both the House and the Senate. Mukasey has persistently refused to provide answers. First, he suggested that the case is something that he can only look into later, after an appeal is completed. But later, as allegations heated up, Mukasey used a standard dodge in his public statements—advising that an internal investigation is underway and that he will share the results with Congress before he leaves office.

Recent developments, however, cast strong doubt on the bona fides of the purported internal investigation. During yesterday’s hearing in the Judiciary Committee, Congressman Artur Davis asked Mukasey to explain why prosecutors handling the case—already the target of numerous credible charges of misconduct–engaged in improper ex parte dealings with the trial judge, Mark Everett Fuller, and conducted a separate investigation into a juror in violation of an unequivocal trial order. As usual, he didn’t get much of an answer.

Following the Siegelman trial, serious allegations of jury tampering arose when envelopes surfaced containing what purported to be email communications concerning the trial between jury members. I summarized the allegations and Judge Fuller’s reaction to them here. If the evidence was genuine, it would have been explosive–it would have established impermissible jury tampering, and would have required setting aside the conviction and conducting a new trial. Defense counsel asked that the court issue subpoenas to Internet service providers to ascertain whether the emails were genuine and to learn the identities of those behind them. These efforts to get to the bottom of the matter were opposed by the prosecutors, who insisted that there was nothing that warranted an investigation, and the judge refused the defense motion. Instead the judge asked the jurors a series of highly conclusory statements that hardly seem designed to get to the bottom of the matter, then put the case over for almost one year for sentencing (a period that coincides with the retention period of many Internet service providers). In the course of jury selection, defense counsel sought and obtained an explicit instruction from the judge forbidding the prosecutors from conducting any independent investigation (outside the supervision of the court and the knowledge of the defendants) into any of the jurors. Here is the passage from the transcript:

Defense Counsel: Judge,… I want it clear on the record that we do not want the United States conducting any investigation… The point that I want to make crystal clear, Judge, is that in terms of this type of investigation involving any type of juror, it must be done with the approval of the Court. So I just want to make sure we’re all clear on that, that there’s no outside investigation. Your Honor conducts investigations when it comes to this jury.

The Court: Let me reiterate to everybody for everyone’s benefit. There should be no outside communication with anybody, be it the government, the defendants, attorneys, interested parties, anyone associated directly or indirectly with this case with any juror, any juror’s family, any juror’s friends, any associate of any juror. Take this as a direct order from this Court to everyone who has heard what I have just said.

But in a letter dated July 8, which I have obtained and attach here, a senior lawyer in Justice’s Criminal Division disclosed that–unbeknownst to defense lawyers and in violation of basic ethics rules–the Siegelman prosecutors continued to deal with the matter, and they also conferred about it after the fact with Judge Fuller. As the letter makes clear, Louis Franklin, the chief prosecutor, had one of his subordinates direct an investigation that involved the use of postal inspectors who limited their investigation to interviewing two jurors and checking the emails in question against test emails which these two jurors sent from their accounts. They concluded on this basis that the emails were “fakes,” which is to say, they were not emails sent by these particular two jurors. (In my opinion this conclusion reveals more about the orientation of the investigators than it does about the validity of the information.) Judge Fuller was briefed on this investigation and its conclusions, but nothing was shared with the defense counsel. This points to bad faith in the courtroom.

The conduct of Franklin’s office looks more like a cover-up than an investigation. Moreover, these new facts once more point to the prosecutor’s bad faith in the court room. We now know that Franklin himself knew of these emails because they had also been sent to a series of coworkers of a juror. Franklin responded to this not by bringing it before the court and apprising the defense, but by seeking to hush the matter up. Had Franklin really wanted to get to the bottom of the issue surrounding the emails, which figures prominently in the current appeal, he would not have sought to block an inquiry in court and then conducted a secret examination that was carefully designed to go nowhere. He should have consented to a subpoena to the Internet service providers which would have settled the matter conclusively. (We called and emailed to Franklin’s office to discuss the matter but have not heard back. We’ll update this post if we receive a reply.) Similarly, the conclusion offered in the Justice Department letter, that the emails were established as “fakes” is laughable. None of the steps taken by the postal inspectors warrant that conclusion. And the steps which could have easily been taken to conclusively settle the matter were not taken. Why?

The letter from the Criminal Division attempts, predictably enough, to put the best face on the Department’s misconduct, but it acknowledges the gravity of the issues. But the deeper and more fundamental question is whether Michael Mukasey is taking the allegations surrounding the Siegelman case seriously. The answer to that appears to be a resounding “no.” His attitude so far has been consistent and dismissive. Mukasey’s written answers to a series of questions presented by Judiciary Committee chair John Conyers convey a lack of candor and a desire to hush up details which will embarrass the Department–not to get to the bottom of the matter.

Back on February 24, CBS News’s Sixty Minutes aired a story on the prosecution of the Siegelman case that contained two bombshells. CBS interviewed Nick Bailey, the former Siegelman aide whose testimony literally sent Siegelman to prison. Bailey told CBS that he was coached and cajoled by prosecutors with more than seventy interviews during which he acknowledged that he didn’t recall key points at which they demanded that he testify. He was also coached to write down testimony in the form the prosecutors wanted it, doing so repeatedly until the story was recounted to their liking. I verified this account by interviewing the two individuals who interviewed Bailey on behalf of CBS News. Subsequently I identified another individual who had spoken with Bailey and received the same account from him. With five months having passed since the disclosures, Conyers tried to see whether Mukasey and the Justice Department had made any effort to look into charges of potentially criminal conduct by its prosecutors in the conduct of one of the highest profile, and most controversial, prosecutions brought by the Department in the last six years. The Siegelman prosecution has, after all, not only been publicly attacked by national media and fifty-two former state attorneys general, it has even been sharply criticized as corrupt by other former Bush Administration prosecutors. And how does Mukasey respond to this unprecedented and unwanted national attention focused on an operation that he heads? Here are his recent responses to the questions of the chairman of the Judiciary Committee:

Conyers: How many times did Department prosecutors speak to Nick Bailey about the Siegelman case?

Mukasey: We do not know whether Mr. Bailey actually made the statements that 60 Minutes has ascribed to him. As with any other cooperating witness, government agents and prosecutors met with Mr. Bailey as necessary and appropriate during the investigation to obtain his knowledge of relevant facts.

Conyers: Did Department prosecutors in the Siegelman case require Mr. Bailey to “get his story straight” by writing his proposed testimony over and over? Please explain.

Mukasey: No. As Mr. Bailey expressly and repeatedly testified under oath at trial, he was not “scripted” or “rehearsed.”

Conyers: Did Department prosecutors turn over Mr. Bailey’s notes to Governor Siegelman’s attorneys? If not, why not?

Mukasey: Department prosecutors provided complete and proper discovery of every statement by Mr. Bailey. If Mr. Bailey made notes of some kind, they were not given to the government, and they would, therefore, not have been discoverable from the government.

The answers are part refusal to answer specific questions, part brushoff, and part plainly false. Note that in theory, Mukasey is having an investigation conducted into the very questions which he is answering Conyers. If he were conducting an investigation in good faith, he should have responded very simply to these questions. He would have said: “Justice is looking into these matters and I will reply once our internal investigation is complete.” But he does not do that. Instead, he prejudges the investigation, stonewalls Congress and parrots statements previously issued by the U.S. Attorney in Montgomery.

Points to keep in mind: CBS News repeatedly requested that the Justice Department give them leave to tape or record their interview with Nick Bailey. Justice refused. This is why millions of viewers did not see Nick Bailey making the statements, but only a CBS investigator summarizing the interview. The interview was conducted with witnesses, and the words ascribed to Nick Bailey are similar to statements he has made to several other individuals. Did the Justice Department contact any of the CBS reporters who interviewed Bailey to verify the account? I have confirmed that the Justice Department has taken no steps to speak with the CBS personnel who conducted the Nick Bailey interview. Its entire inquiry appears to be focused on speaking with the same prosecutors who are accused of serious, potentially criminal wrongdoing.

Next, Mukasey materially misstates Bailey’s testimony at trial. In fact, Bailey brought the proceedings to a stop by referring openly to the written notes he prepared at the prosecutor’s behest. The defense demanded to see them, and in a chambers hearing, Judge Fuller directed the prosecutors to turn them over. The prosecutors denied their existence. Bailey stated that he was required to prepare the notes on paper supplied by the prosecutors, and they were placed in a binder that the prosecutors or an FBI agent working with them retained. Mukasey’s remaining statements are therefore at a minimum highly misleading and very poorly informed.

The ultimate problem here is that Mukasey is not paying attention to the matter. Instead he is relying on political flaks at the Justice Department to prepare answers on his behalf, trodding down the same path that destroyed the careers of Alberto Gonzales and Paul McNulty. He has allowed himself to be roped into a series of incorrect statements about specific aspects of the Siegelman investigation. Michael Mukasey needs to recognize that he has brought his tenure at the Justice Department to the edge of a precipice.

All of this heightens concern about the alleged internal investigation that Justice is conducting. The investigation has not been referred to the Inspector General, Glenn Fine, who has a reputation for independence and integrity. Instead it has been placed in the hands of the Office of Professional Responsibility, which is now well known in Washington for malfeasance and political manipulation, not for getting to the bottom of internal corruption charges. Siegelman promises to be no exception. I am tracking this probe from the outside, and so far, there is precious little evidence of any meaningful investigation being conducted. As best I can ascertain, none of the key witnesses one would expect to figure in it have actually been contacted or asked to sit for an interview. The office’s total engagement so far consists of a couple of letters to lawyers. This does little–does even less than Mukasey’s ill-informed written answers–to instill confidence that the Justice Department can clean up a horrendous mess in its own house.

Mukasey has a strong interest, he insists, in preserving the reputation of the Justice Department. So far, however, this has not translated into an effort to root out corruption inside the department and punish the perpetrators. Instead, he has tried to sweep whatever emerges in the public eye under the carpet. This approach will not reflect well on Mukasey or the Justice Department. More importantly, it will do nothing to help restore the reservoir of trust that Justice once had, and which under George W. Bush has been drained dry. The public wants and needs an accountable and responsible Justice Department, but that now seems as distant a prospect as it was under “Fredo” Gonzales.

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