No Comment — December 6, 2008, 1:56 pm

Siegelman Appeal Argued this Week

In 1798, the Federalists decided to silence an outspoken Democratic Congressman, Matthew Lyon, by prosecuting and imprisoning him. But the effort backfired. Lyon was reelected from prison, and in 1800 he cast from his prison cell the decisive vote ending the rule of the Federalists and starting the first administration of the Democratic Party, under Thomas Jefferson. The Federalist’s grip on power was shattered and they soon disappeared from the political scene altogether. The Lyon prosecution was viewed by American historians as the most outrageous political prosecution in the nation’s history… until the Bush Justice Department’s prosecution of former Alabama Governor Don E. Siegelman, that is.

On December 9, Siegelman argues his case to the Court of Appeals in Atlanta, before a panel consisting of three judges, each appointed by a Republican president and two with solid G.O.P. partisan credentials to boot. As the hearing date approaches, the Department of Justice has filed papers in which it advises the court that, bowing to public skepticism over its conduct and Congressional demands, it has reopened an inquiry into jury misconduct in connection with the case. Previously the Department brushed away its own internal documentation of the misconduct, essentially saying that it chose to believe its chief prosecutor, Louis Franklin, and not the records and testimonial evidence of his own staff which directly contradicted him. The Justice Department has thus maneuvered the appeals court into an extremely awkward position. How do they proceed to deal with an appeal focusing on allegations of jury misconduct when the Justice Department admits that it improperly withheld vital evidence of the misconduct, and is still, as the hearing date approaches, trying to form its own view as to whether misconduct which would mandate dismissal of the case occurred? One possible outcome would be for the judges to remand the matter for a proper investigation, which to be credible could only occur under judicial supervision. But then they would face another dilemma: the district court judge who would receive the remand is himself at the heart of the accusations of misconduct.

For those who want to track the Siegelman case on appeal, David Fiderer at the Huffington Post offers a detailed review. He starts, appropriately enough, with the prosecution’s credibility problems, most recently challenged from inside the prosecution team itself. The head prosecutor has now been trapped in so many falsehoods that Justice has swiftly moved him into the background on appeal. Fiderer gives us a good taste of the credibility issues in his opening paragraphs:

Prosecutor Louis Franklin did an about face. On August 22, 2007, when he was recommending a reduced sentence for his star witness, Franklin said that Don Siegelman would not have been convicted without the testimony of Nick Bailey. Five months later, after Bailey spoke to 60 Minutes, Franklin trashed him. Bailey, a crook who testified as part of a plea deal, told CBS News that he was coached by the prosecution, in 70 separate pretrial meetings, to tailor his story for the witness stand. Franklin denies that such coaching took place. But a number of other people have impugned Franklin’s veracity.

Arthur Leach, a 19-year veteran of the Justice Department, called Louis Franklin a liar. Leach, the lawyer who represented codefendant Richard Scrushy, told Congress that Franklin lied to him about the status of the indictments during preliminary negotiations. Leach also recounted Franklin’s offer, that Scrushy could avoid indictment if he testified that Siegelman solicited a bribe. Leach told Franklin that his client was not willing to lie.

Siegelman is supported in the appeals process by an army of attorneys general, both Democratic and Republican, from across the United States who scoff at the Justice Department’s arguments and challenge the ethics of the prosecution. The Justice Department argues in response that the appeals court should uphold what happened below without looking under the covers. Fiderer presents a good summary of the appeals case. Now all eyes turn to the three Republican judges in Atlanta. Will the political manipulation of this case end? We’ll know soon enough. But if they hand Siegelman a victory, no one will be able to say it was Democrats riding to his rescue.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

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.

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

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

United States Canada

CATEGORIES

THE CURRENT ISSUE

June 2016

Trump’s People

= Subscribers only.
Sign in here.
Subscribe here.

The Old Man

= Subscribers only.
Sign in here.
Subscribe here.

The Long Rescue

= Subscribers only.
Sign in here.
Subscribe here.

New Television

= Subscribers only.
Sign in here.
Subscribe here.

The Improbability Party

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Helen Ouyang on the cost of crowd-sourcing drugs, Paul Wood on Trump's supporters, Walter Kirn on political predictions, Sonia Faleiro on a man's search for his kidnapped children, and Rivka Galchen on The People v. O. J. Simpson.

The new docudrama The People v. O. J. Simpson: American Crime Story (FX) isn’t really about Orenthal James Simpson. It’s about the trials that ran alongside his — those informal, unboundaried, court-of-public-opinion trials in which evidence was heard for and against the murder victims, the defense and the prosecution, the judge, the jury, and the Los Angeles Police Department, to say nothing of white and black America. History has freed us from suspense about Simpson’s verdict, so that the man himself (played here by Cuba Gooding Jr.) is less the tragic hero he seemed in the mid-Nineties than a curiously minor character. He comes to the center of our attention only once, in Episode 2, at the end of the lengthy Ford Bronco chase scene — which in real life was followed by a surreal cavalcade of police cars and media helicopters, as well as an estimated 95 million live viewers — when Simpson repeatedly, and with apparent sincerity, apologizes for taking up so much of so many people’s time. It is an uncannily ordinary moment of social decorum, a sort of could-you-please-pass-the-salt gesture on a sinking Titanic, in which Simpson briefly becomes more than just an archetype.

Photograph (detail) © Eve Arnold/Magnum Photos
Article
Trump’s People·

= Subscribers only.
Sign in here.
Subscribe here.

"All our friends are saying, load up with plenty of ammunition, because after the stores don’t have no food they’re gonna be hitting houses. They’re going to take over America, put their flag on the Capitol.” “Who?” I asked. “ISIS. Oh yeah.”
Photograph by Mark Abramson for Harper's Magazine (detail)
Article
The Long Rescue·

= Subscribers only.
Sign in here.
Subscribe here.

He made them groom and feed the half-dozen horses used to transport the raw bricks to the furnace. Like the horses, the children were beaten with whips.
Photograph (detail) © Narendra Shrestha/EPA/Newscom
Article
The Old Man·

= Subscribers only.
Sign in here.
Subscribe here.

The new docudrama The People v. O. J. Simpson: American Crime Story (FX) isn’t really about Orenthal James Simpson. It’s about the trials that ran alongside his — those informal, unboundaried, court-of-public-opinion trials in which evidence was heard for and against the murder victims, the defense and the prosecution, the judge, the jury, and the Los Angeles Police Department, to say nothing of white and black America. History has freed us from suspense about Simpson’s verdict, so that the man himself (played here by Cuba Gooding Jr.) is less the tragic hero he seemed in the mid-Nineties than a curiously minor character. He comes to the center of our attention only once, in Episode 2, at the end of the lengthy Ford Bronco chase scene — which in real life was followed by a surreal cavalcade of police cars and media helicopters, as well as an estimated 95 million live viewers — when Simpson repeatedly, and with apparent sincerity, apologizes for taking up so much of so many people’s time. It is an uncannily ordinary moment of social decorum, a sort of could-you-please-pass-the-salt gesture on a sinking Titanic, in which Simpson briefly becomes more than just an archetype.

Illustration (detail) by Jen Renninger
Article
New Television·

= Subscribers only.
Sign in here.
Subscribe here.

With its lens shifting from the courtroom to the newsroom to people’s back yards, the series evokes the way in which, for a brief, delusory moment, the O. J. verdict seemed to deliver justice for all black men.
Still from The People vs. OJ Simpson: American Crime Story © FX Networks

Amount an auditor estimated last year that Oregon could save each year by feeding prisoners less food:

$62,000

Kentucky is the saddest state.

An Italian economist was questioned on suspicion of terrorism after a fellow passenger on an American Airlines flight witnessed him writing differential equations on a pad of paper.

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

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today