I have received a copy of an affidavit (8.7Mb PDF) filed by a Missouri attorney in 2003 which details a number of charges of unethical and criminal conduct against Judge Mark Fuller. The attorney sought Fuller’s removal from a high-profile litigation which related to a prominent Republican who was close to both the current President Bush and his father.
The attorney, Paul Benton Weeks, had been involved as counsel for plaintiffs in a civil action called Murray v. Scott & Sevier, which had originally been filed in Kansas and was later transferred to Montgomery and assigned to Judge Fuller. Weeks, reached by telephone this morning, advised me that he did a routine background check to discover what kind of judge he was up before. “I was astonished by what I found,” Weeks said. Immediately after the papers were filed, Weeks said that Fuller was removed as the judge handling the case.
In the affidavit, Weeks accuses Fuller of engaging in criminal conduct both before and after he came on to the bench. 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. (I faxed a copy of the affidavit to Fuller’s office and also left a message asking for comment, but received no reply; if Fuller does reply I’ll update this post.)
Weeks’s allegations were transmitted to Noel Hillman, the head of the Public Integrity Section at the Department of Justice, among other recipients. Hillman’s office has responsibility to conduct investigations into allegations concerning wrongdoing by federal judges.
This means that at the time that Fuller was presiding over the prosecution of former Alabama Governor Don E. Siegelman, a prosecution brought by Noel Hillman’s Public Integrity Section, he was or should have been the subject of an investigation by the Public Integrity Section. This presents a further appearance of serious impropriety both by Judge Fuller and by the prosecutors handling the case. Our earlier study of Fuller showed that he had three disqualifying conflicts: his undisclosed service on the Executive Committee of the Alabama G.O.P. at the time that it was running campaigns against Siegelman; his suggestion that Siegelman was responsible for “politically motivated” attacks on him in connection with his bookkeeping practices as a district attorney; and his business interests which are tied up almost entirely with U.S. government contracts.
Weeks’s allegations are focused on Fuller’s conduct in connection with “salary spiking” involving two of his employees in the District Attorney’s office. Fuller’s testimony, which Weeks says was contradictory and which changed materially in the course of the matter, was disbelieved both by the RSA and by an Alabama court handling the matter. Weeks calls Fuller’s statements under oath perjured. In an interview today, Weeks noted that Fuller was an “absentee district attorney.” “Many of the people I interviewed in the district attorney’s office insisted that Fuller was simply never around. He was constantly out of the state, most often in Colorado, pursuing the business of DOSS Aviation, a company that Fuller controls.”
Weeks’s affidavit reflects interviews with Fuller’s successor in the district attorney’s office and with senior officials at the RSA, who confirm the allegations against Fuller. “Judge McAliley then said that he had met with RSA officials and that every member on the RSA board believed Mark Fuller had lied and that Fuller had lied under oath.”
Weeks notes that after the affidavit was transmitted to the Justice Department, no individual from Noel Hillman’s group ever contacted him to follow up on any of the allegations or to request any of the documentation that was cited in the affidavit.
The full affidavit can be read here. (8.7Mb PDF) In the Siegelman trial the relationship between the prosecution and the judge always looked just a little too cosy, but the Weeks disclosures create an appearance of serious impropriety. The Siegelman case presents a bizarre spectacle: a political corruption prosecution which is itself profoundly corrupt. As time proceeds, the allegations against Siegelman appear more and more dubious, but the evidence of criminal wrongdoing by those who brought and handled the case is mounting.
Update: Prosecutorial Judge-Shopping
Several attorneys in Alabama have brought an important point to our attention. When the Siegelman case began it was in the Northern District, and after one recusal the case was assigned to Chief Judge U.W. Clemon. He challenged the prosecution’s basis for the case and required a prima facie showing, which the U.S. Attorney, Alice Martin, could not meet and thus wound up dismissing the case.
Martin (who now is under investigation for perjury) (Update, April 22, 2008: Harper’s was informed on April 17, 2008 that the perjury investigation against Alice Martin was concluded on November 28, 2007, with a finding by the Department of Justice Office of Professional Responsibility that Alice Martin “did not commit professional misconduct or exercise poor judgment.” More information on the OPR’s findings is available on this site.) then applied to the Eleventh Circuit to have Clemon removed from the surviving case. In her case, which had been brought with the involvement of Noel Hillman, then head of the Justice Department’s Public Integrity Section, Martin argued to the Court of Appeals that Clemon should be removed because he was prejudiced against the prosecution. The basis cited for this prejudice was that a California U.S. attorney had, a decade earlier, conducted an inquiry focusing on Judge Clemon’s sister. The Eleventh Circuit granted Martin’s petition and removed Clemon from the case. The facts surrounding the motion against Chief Judge Clemon were reported in the student newspaper of the University of Alabama, Crimson White, in an article entitled “Siegelman Indictment: The Rundown,” on September 27, 2004.
The Justice Department engaged in amazing and brazen judge-shopping in connection with the Siegelman case. After having the case dismissed in the Northern District, they proceeded in the Middle District, where they could get a new judge. In her Congressional testimony, Republican attorney Jill Simpson charges that senior G.O.P. operatives had hand-picked Judge Mark Fuller as the judge who would handle the Siegelman case because they knew he was a loyal Republican who bore a deep grudge against Siegelman. Simpson’s allegations match the facts we upturned in our investigative series on Judge Fuller this summer, and they are borne out by the Weeks affidavit.
And now we learn that the Public Integrity Section, which was bringing and managing the case against Siegelman, also had an extremely serious complaint of criminal conduct against Fuller.
This invites an interesting comparison with the case involving Clemon. In one a decade-old case in another district involving a family member mandated recusal of the judge. In the other, a current case involving the judge himself did not. What is the distinguishing rule in place? One judge was a Democratic appointee who was skeptical of the charges–quite properly, as it turned out–and the other was a zealously engaged partisan Republican with a grudge against Siegelman. That’s what the Justice Department was looking for. This goes far beyond a double standard, and it invites more questions as to why the prosecutor originally assigned to handle the case mysteriously dropped off the case and then quit the employ of the U.S. Attorney’s office.
