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.

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