No Comment — August 3, 2007, 11:16 am

Judge Fuller and the Trial of Don Siegelman

In the American criminal justice system, in a case presented to a jury, the trial judge is less a searcher in pursuit of truth than a referee. As long experience has shown me, it is a myth that the two forces—prosecution and defense—are equally matched. Not only does the prosecution have greater resources and influence, but the typical juror is likely to view the prosecutor as a public servant crusading for the truth and the defense counsel as a gun for hire.

It’s the responsibility of a judge to ensure balanced and fair combat between the prosecution and the defense, guiding and protecting the jurors from outside and improper influences. A good judge will not only make sure that a balance exists in the courtroom, but will pare back inflated charges, or charges for which there is not enough evidence.

Given these standards of judicial conduct, we can ask: in the case against Don Siegelman, did Mark Fuller perform the essential functions that the citizens expect of a federal judge?

Five Unasked Questions
I can see five major questions that should have been asked before the trial began.

The first question was whether it was appropriate for Judge Fuller to handle the case given his highly partisan political past coupled with his clash with the Siegelman administration over the “salary spiking” case in Coffee County.

The second question is why, given that a case against Don Siegelman had been commenced in Birmingham before Chief Judge U.W. Clemon, ending in a dismissal with prejudice, the federal prosecutors were suddenly before a new grand jury in a new district. Conventionally, criminal claims against a defendant are joined, but here they were not. There seem to be plenty of illegitimate reasons for this strange bifurcation, the most troubling being that the prosecutors were busily shopping for a judge to their liking—a very dubious practice, and something that judges should guard against. But Judge Fuller raised no questions on the matter.

The third question is why the prosecution was permitted to use the Racketeer-Influenced and Corrupt Organizations Act (“RICO”) as the basis for its case against Siegelman. RICO was developed in the late 1960s to provide prosecutors more reach to fight organized crime. The use of this statute in cases involving political corruption charges is problematic for a number of reasons, among them because it begins a process of marking government functions as organized crime—which in itself undermines public confidence in government. As Harvard’s Arthur Maass said, applying RICO in such cases is “unauthorized, out of control, and overall questionable.” For this reason, it has often been urged that the RICO statute be used extremely sparingly, if at all, in political cases. Procedures are in place which limit its use and require approval at a very high level in the Department of Justice in Washington, D.C. In the Siegelman trial, the essence of the prosecution’s case was what Notre Dame law professor G. Robert Blakey, a former prosecutor who wrote the RICO statute, calls the “trashcan theory of prosecution.” The prosecution’s case was, essentially, a dog-and-pony show: countless facts were presented, and the jury was asked to see corruption behind every deed. As Alexander Hamilton once observed, when a prosecutor makes enough claims of wrongdoing against an innocent man, he is very likely to get a conviction on something. The use of RICO in this case is one of the telltale signs that the prosecution is politically motivated and driven. In fact, a former senior Justice Department lawyer who requested anonymity told me:

Congressional investigators need to probe into the process by which the RICO charges were brought in this case. I believe they will find a trail of politically incendiary decision-making in which established practices and procedures were cast to the wayside in a vendetta-like prosecutorial effort.

The fourth question is why the case was built by linking Siegelman to his adversary Richard Scrushy, the notorious executive of HealthSouth. Scrushy had supported Siegelman’s Republican opponent, and was himself a Republican. However, Scrushy had already been tried and acquitted in Birmingham, and many in the state were seething over the botched prosecution. There was a broad public demand for Scrushy’s head. Given this situation, the linkage between Scrushy and Siegelman was weak and highly prejudicial to Siegelman. The judge should have investigated whether prosecutors were attempting to capitalize on public anger against Scrushy to “get” Siegelman—but I can find no evidence at all that Fuller examined this possibility.

The fifth question has to do with press coverage of this case. The leading newspapers in two of Alabama’s major cities—Birmingham and Mobile—are sibling publications under joint ownership. They gave extensive and tendentious coverage of the investigation and prosecution of Don Siegelman. And these papers had access to nearly every aspect of the prosecution’s case, including its witnesses and its evidence. They knew the charges before their formal presentation; they even knew in some detail what transpired before the grand jury. The press is free to make inquiries and publish what it learns, and the more the better. However, the prosecution is obligated to maintain the secrecy of the proceedings, and the disclosure of grand jury secrets by the prosecution is a very serious violation of Rule 6(e) of the Federal Rules of Criminal Procedure. Usually the publication of grand jury secrets in the press is taken as sufficient for a judge to trigger an inquiry into violations of Rule 6(e) by the prosecution. In this case, the federal prosecutors openly and publicly lauded the newspaper reporters who were disseminating their materials. This practice of “poisoning the well” is extremely abusive and the judge should have stopped it. But not Judge Fuller.

The (Mis)conduct of the Case
The case was conducted in a strange manner. Judge Fuller allowed the prosecution to present their evidence more than once—through direct testimony and then under the guise of preparing for the use of demonstrative evidence. Later, at the conclusion of the case, this evidence was disallowed. But when defense objected to this abusive practice, their motions were overruled. In fact, from the outset of the case Judge Fuller disallowed virtually every motion brought by defense counsel. But the cumulative effect of Fuller’s rulings was that the prosecution was allowed to multiply and amplify its evidence–a disreputable and unfair advantage that Fuller gave to the prosecution.

One of the charges against Siegelman, on which he was convicted, was that he had accepted gifts from an Alabama lobbyist. When that lobbyist testified, he made the point that he done the same thing–except in a much larger way—with Alabama Republican Senator Jefferson Sessions, without the Justice Department raising any questions about it. Now, as we have already noted, Judge Fuller owes his judgeship in part to Jefferson Sessions, moreover, he was an active supporter and campaign donor to Sessions’s senatorial campaign.Brett Blackledge, “Siegelman’s Attorneys Seek Magistrate’s Recusal,” Birmingham News, Friday, Nov. 4, 2005, p. 04B. Moreover, Sessions’s deputy and successor as Alabama Attorney General was Bill Pryor, who played a key role in directing the prosecution of Siegelman. When Sessions’s name came up, the Justice Department’s Public Integrity Section lawyer objected, asking that this evidence be excluded, and Fuller complied. No charges were ever brought against Sessions, nor was any investigation ever undertaken. Yet Siegelman was convicted on this charge.
Sessions has now repeatedly been linked to efforts to politicize the prosecutorial process. One key email turned over by the White House in the early days of the U.S. attorney scandal–back in the period in which the White House and Justice Department were still disclosing documents on a piecemeal basis–had a White House staffer close to Karl Rove advising Justice Department lawyers to turn to Sessions for justification of the removal of a career prosecutor in Arkansas and his replacement with a man who ran politically-inspired voter “caging” operations for Rove. Sessions, it was argued, would provide testimonial that this was a reasonable move. The inference, sustained in other documents, is that Sessions was an integral part of the effort to politicize the U.S. attorney’s offices.

The Jury Deliberates: “All public officials r scum”
When the jury retired, half of the members favored acquittal, and the other half, who according to subsequent statements felt they were doing what Judge Fuller wanted them to do, supported conviction. The jury initially deadlocked, sending the judge a note stating that they could not resolve the case. The judge responded by suggesting that he would be prepared to hold them indefinitely, including over the upcoming holiday. An anonymous source supplied defense counsel with evidence that some jurors were engaged in inappropriate conduct, among other things reading press accounts of the case and discussing how to pressure other jurors into a conviction with outside evidence.

Two emails in particular, which I was able to obtain from pleadings filed with the court, indicate that outside materials were being downloaded from the Internet and used by these jurors in an effort to pressure their wavering peers:

Exhibit 23:
“….judge really helping w/jurors…
still having difficulties with #30
…any ideas???
keep pushing on ur side
did not understand ur thoughts on statute
but received links.
[first name of Juror B]

Exhibit 24:
“I can’t see anything we miss’d. u?
articles usent outstanding! gov & pastor up s—t creek.
good thing no one likes them anyway. all public officials
r scum; especially this 1. pastor
is reall a piece of work
…they missed before, but we won’t
…also, keepworking on 30…
will update u on other meeting.
[first name of Juror B]

Normally such evidence would result in dismissal of the jury and an order directing a new trial, but not here. Fuller refused to subpoena the email records in question, to question the jurors about the allegations of improper conduct, or to allow counsel to do the same. When the defendants sought to notify the Internet service providers so that the records could be preserved, the motion was summarily denied. Then Fuller, acting to protect the “sanctity of the jury,” adjourned the case for one year before sentencing—long enough for most Internet service providers to automatically dispose of emails maintained on their servers.

The jury rejected 26 out of the 32 counts put forward by the prosecution—which meant that one hundred claims that comprised the RICO theory, upon which the prosecution had built its case, were also rejected. But the jury accepted the prosecution’s contention that a $500,000 payment made by HealthSouth executive Richard Scrushy to the Alabama Education Foundation was in fact a payment of a bribe solicited by Siegelman in connection with Scrushy’s appointment to a hospital oversight board. They accepted this despite several undisputed facts: that Siegelman obtained no personal benefit from the payment; that Scrushy, a Republican, had been appointed to the same uncompensated public service position by three governors and was viewed as a central figure in the state’s health care system; and that Scrushy had appeared on Siegelman’s appointment list for the position before any discussion had ever occurred about the appointment.

So we return to our original question: did Mark Fuller perform the essential functions that the citizens expect of a federal judge? The answer is no. The conviction was a travesty.


Judge Fuller has not responded to a request for comment. I’ll update this post if and when he does.


Next… the recusal issue surfaces, and with it the details of Fuller’s Government Contracts Empire.

Evan Magruder contributed to this blog post.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

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

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

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2020

Trumpism After Trump

= Subscribers only.
Sign in here.
Subscribe here.

“My Gang Is Jesus”

= Subscribers only.
Sign in here.
Subscribe here.

The Cancer Chair

= Subscribers only.
Sign in here.
Subscribe here.

The Birds

= Subscribers only.
Sign in here.
Subscribe here.

The Skinning Tree

= Subscribers only.
Sign in here.
Subscribe here.

The Interpretation of Dreams

= Subscribers only.
Sign in here.
Subscribe here.

Dearest Lizzie

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Trumpism After Trump·

= Subscribers only.
Sign in here.
Subscribe here.

The city was not beautiful; no one made that claim for it. At the height of summer, people in suits, shellacked by the sun, moved like harassed insects to avoid the concentrated light. There was a civil war–like fracture in America—the president had said so—but little of it showed in the capital. Everyone was polite and smooth in their exchanges. The corridor between Dupont Circle and Georgetown was like the dream of Yugoslav planners: long blocks of uniform earth-toned buildings that made the classical edifices of the Hill seem the residue of ancestors straining for pedigree. Bunting, starched and perfectly ruffled in red-white-and-blue fans, hung everywhere—from air conditioners, from gutters, from statues of dead revolutionaries. Coming from Berlin, where the manual laborers are white, I felt as though I was entering the heart of a caste civilization. Untouchables in hard hats drilled into sidewalks, carried pylons, and ate lunch from metal boxes, while waiters in restaurants complimented old respectable bobbing heads on how well they were progressing with their rib eyes and iceberg wedges.

I had come to Washington to witness either the birth of an ideology or what may turn out to be the passing of a kidney stone through the Republican Party. There was a new movement afoot: National Conservatives, they called themselves, and they were gathering here, at the Ritz-Carlton, at 22nd Street and M. Disparate tribes had posted up for the potlatch: reformacons, blood-and-soilers, curious liberal nationalists, “Austrians,” repentant neocons, evangelical Christians, corporate raiders, cattle ranchers, Silicon Valley dissidents, Buckleyites, Straussians, Orthodox Jews, Catholics, Mormons, Tories, dark-web spiders, tradcons, Lone Conservatives, Fed-Socs, Young Republicans, Reaganites in amber. Most straddled more than one category.

Article
The Cancer Chair·

= Subscribers only.
Sign in here.
Subscribe here.

The second-worst thing about cancer chairs is that they are attached to televisions. Someone somewhere is always at war with silence. It’s impossible to read, so I answer email, or watch some cop drama on my computer, or, if it seems unavoidable, explore the lives of my nurses. A trip to Cozumel with old girlfriends, a costume party with political overtones, an advanced degree on the internet: they’re all the same, these lives, which is to say that the nurses tell me nothing, perhaps because amid the din and pain it’s impossible to say anything of substance, or perhaps because they know that nothing is precisely what we both expect. It’s the very currency of the place. Perhaps they are being excruciatingly candid.

There is a cancer camaraderie I’ve never felt. That I find inimical, in fact. Along with the official optimism that percolates out of pamphlets, the milestone celebrations that seem aimed at children, the lemonade people squeeze out of their tumors. My stoniness has not always served me well. Among the cancer staff, there is special affection for the jocular sufferer, the one who makes light of lousy bowel movements and extols the spiritual tonic of neuropathy. And why not? Spend your waking life in hell, and you too might cherish the soul who’d learned to praise the flames. I can’t do it. I’m not chipper by nature, and just hearing the word cancer makes me feel like I’m wearing a welder’s mask.

Article
“My Gang Is Jesus”·

= Subscribers only.
Sign in here.
Subscribe here.

When Demétrio Martins was ready to preach, he pushed a joystick that angled the seat of his wheelchair forward, slowly lifting him to a standing position. Restraints held his body upright. His atrophied right arm lay on an armrest, and with his left hand, he put a microphone to his lips. “Proverbs, chapter fourteen, verse twelve,” he said. “ ‘There is a way which seems right to a man, but its end is . . .’ ”

The congregation finished: “ ‘Death.’ ”

The Assembly of God True Grapevine was little more than a fluorescent-lit room wedged between a bar and an empty lot in Jacaré, a poor neighborhood on Rio de Janeiro’s north side. A few dozen people sat in the rows of plastic lawn chairs that served as pews, while shuddering wall fans circulated hot air. The congregation was largely female; of the few men in attendance, most wore collared shirts and old leather shoes. Now and then, Martins veered from Portuguese into celestial tongues. People rose from their seats, thrust their hands into the air, and shouted, “Hallelujah!”

Article
The Birds·

= Subscribers only.
Sign in here.
Subscribe here.

On December 7, 2016, a drone departed from an Amazon warehouse in the United Kingdom, ascended to an altitude of four hundred feet, and flew to a nearby farm. There it glided down to the front lawn and released from its clutches a small box containing an Amazon streaming device and a bag of popcorn. This was the first successful flight of Prime Air, Amazon’s drone delivery program. If instituted as a regular service, it would slash the costs of “last-mile delivery,” the shortest and most expensive leg of a package’s journey from warehouse to doorstep. Drones don’t get into fender benders, don’t hit rush-hour traffic, and don’t need humans to accompany them, all of which, Amazon says, could enable it to offer thirty-minute delivery for up to 90 percent of domestic shipments while also reducing carbon emissions. After years of testing, Amazon wrote to the Federal Aviation Administration last summer to ask for permission to conduct limited commercial deliveries with its drones, attaching this diagram to show how the system would work. (Amazon insisted that we note that the diagram is not to scale.) Amazon is not the only company working toward such an automated future—­UPS, FedEx, Uber, and Google’s parent company, Alphabet, have similar programs—­but its plans offer the most detailed vision of what seems to be an impending reality, one in which parce­l-toting drones are a constant presence in the sky, doing much more than just delivering popcorn.

Article
The Skinning Tree·

= Subscribers only.
Sign in here.
Subscribe here.

Every year in Lusk, Wyoming, during the second week of July, locals gather to reenact a day in 1849 when members of a nearby band of Sioux are said to have skinned a white man alive. None of the actors are Native American. The white participants dress up like Indians and redden their skin with body paint made from iron ore.

The town prepares all year, and the performance, The Legend of Rawhide, has a cast and crew of hundreds, almost all local volunteers, including elementary school children. There are six generations of Rawhide actors in one family; three or four generations seems to be the average. The show is performed twice, on Friday and Saturday night.

The plot is based on an event that, as local legend has it, occurred fifteen miles south of Lusk, in Rawhide Buttes. It goes like this: Clyde Pickett is traveling with a wagon train to California. He tells the other Pioneers: “The only good Injun’s a dead Injun.” Clyde loves Kate Farley, and to impress her, he shoots the first Indian he sees, who happens to be an Indian Princess. The Indians approach the Pioneers and ask that the murderer give himself up. Clyde won’t admit he did it. The Indians attack the wagon train and, eventually, Clyde surrenders. The Indians tie Clyde to the Skinning Tree and flay him alive. Later, Kate retrieves her dead lover’s body and the wagon train continues west.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

Americans evacuated from Wuhan did Zumba.

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

HARPER’S FINEST

Jesus Plus Nothing

= Subscribers only.
Sign in here.
Subscribe here.

By

At Ivanwald, men learn to be leaders by loving their leaders. “They’re so busy loving us,” a brother once explained to me, “but who’s loving them?” We were. The brothers each paid $400 per month for room and board, but we were also the caretakers of The Cedars, cleaning its gutters, mowing its lawns, whacking weeds and blowing leaves and sanding. And we were called to serve on Tuesday mornings, when The Cedars hosted a regular prayer breakfast typically presided over by Ed Meese, the former attorney general. Each week the breakfast brought together a rotating group of ambassadors, businessmen, and American politicians. Three of Ivanwald’s brothers also attended, wearing crisp shirts starched just for the occasion; one would sit at the table while the other two poured coffee. 

Subscribe Today