No Comment — January 8, 2008, 10:20 pm

Just Desserts?

The story out of the Frank M. Johnson Federal Courthouse in Montgomery never seems to change. It is a chronicle of abusive conduct by a federal judge who treats his judicial duties with the same level of contempt he retains for the concept of justice itself. His name is Mark Everett Fuller, and according to the sworn account of a Republican operative, testifying before Congress, he was handpicked to manage a courtroom drama for the benefit of the Republican Party. His job was to destroy the state’s last Democratic Governor, Don Siegelman, and to send him off to prison, post-haste. And that’s exactly what he did.

Fuller denied without explanation the completely routine motion that Siegelman made to be let free on appeal. When the Court of Appeals directed him to state his reasons, he refused. They then directed him a second time to do so. He waited two months after the second order (and over three months after the original order) before acting, waiting until the Associated Press had published a major article bringing public attention to focus on the gross irregularities which marked his handling of the case and until Siegelman’s lawyers made an emergency motion to the Court of Appeals to act. Then, suddenly, he released a 30-page opinion. That opinion, which I have examined and shared with several of my lawyer and legal academic colleagues, is farcical, the sort of thing that any judge would be ashamed to allow see the light of day. The one sensible thing that Judge Fuller did was mark it “not for publication,” for indeed, why would he want anyone to read it? It reflects a third-rate legal mind. Most of it is a cobbled together pilferage from other documents filed in the case. It fails to provide any meaningful explanation for his decision. The weakness of this document serves further to underscore the now pervasive suspicions of improper motive.

Judge Fuller sits in a shadow which has grown progressively more sinister as time passes. Even before the allegations placing him in the proximity of a scheme to “get Siegelman,” his conduct of the Siegelman trial raised eyebrows. He had been a member of the Alabama G.O.P.’s Executive Committee while Siegelman served in public office and was the G.O.P.’s prime target. He had managed G.O.P. political campaigns. After a state audit was commenced of his records as District Attorney, he claimed that this was a “politically motivated” act of the Siegelman administration. And as if those motives to “get even” weren’t enough, in the course of last fall something still more sordid emerged (though, of course, Fuller knew it all along). A lengthy sworn attorney’s affidavit leveled detailed charges of criminal wrongdoing against him that dwarfed the bogus charges which had been brought against Siegelman. The charges had been submitted to the Department of Justice’s Public Integrity Section, and was pending with them, just as the Public Integrity Section was bringing the Siegelman prosecution in his court. Yet both the Justice Department and Judge Fuller, in a startling departure from the most fundamental requirements of judicial ethics, opposed his recusal from the case. The stench from this case just couldn’t get any stronger.

And yet it continues to get stronger with each passing week. Part of Fuller’s very unusual background lies in the fact that he’s a businessman, and he continues to own a small business while he sits as a judge. That raises some complications. But then we get into the nature of his business and the complications soar. It seems that Fuller’s business runs almost entirely from shadowy contracts awarded by the U.S. Government, prominently including the Department of Justice—that’s right, the highly politicized agency which was prosecuting the Siegelman case in his court. And many of the other contracts came from the Department of Defense.

Now let’s recall that the day after the sentencing of Governor Siegelman—a day which will live in lasting disgrace in the annals of justice—Governor Riley suddenly canceled his plans to speak to fellow Republicans in Cullman County, and rushed off to Washington. He said that he was meeting with the Air Force in order to promote the interests of some Alabama companies seeking contracts. True enough. And one of the Alabama companies then pushing aggressively for an extremely lucrative multimillion dollar Air Force contract was named Doss Aviation. The owner of Doss Aviation is Judge Mark Fuller. And shortly after that sentencing came down and Governor Riley made his push for fellow Alabamians seeking Air Force contracts, the Bush Administration took an important decision. On October 4, this story appeared on the HT Media wire:

RANDOLPH AIR FORCE BASE, Texas, Oct. 4 — The U.S. Air Force has awarded a $18.1 million contract to Doss Aviation Inc., Colorado Springs, Colo., for flight screening for USAF pilot candidates. The contract was awarded by USAF’s Air Education & Training Command, Randolph Air Force Base, Texas.

This contract is the first piece of a massive Air Force award to train pilots which will, I am told, ultimately figure well in excess of one hundred million dollars. Fuller is the controlling shareholder of Doss, and as such a large part of the company’s net operating profits flow straight to his bottom line. (Who knows, maybe someday a newspaper in Alabama will even pay a little bit of attention to Judge Fuller’s curious dealings.)

Recall that according to the Weeks Affidavit, while Fuller served as District Attorney down in Enterprise, he was effectively an absentee figure, spending most of his time in Colorado, managing the business of his company, Doss Aviation. This caused him to pass special duties to his first assistant, which later led to a bitter struggle between Fuller and the Retirement Systems of Alabama (RSA). Fuller lost that struggle when a state court judge concluded that his sworn testimony was not credible.

Fuller, who seems to believe that vengeance belongs to him and not the Lord, later had an opportunity to even the score with RSA. When Enron parties removed a bit of litigation from an Alabama state court to the federal court, it was assigned to Judge Fuller. RSA felt that given its highly contentious relationship with Fuller, he should recuse himself. Fuller disagreed. He sat on the RSA/Enron motion to remand the case to state court–which clearly should have been granted–until the panel on multidistrict litigation sent it to Houston. Fuller’s passive revenge was extremely costly to the RSA and to pensioners across the state of Alabama. Just another little example of Judge Fuller’s concept of how a federal judge wields his power (for indeed, that is what he does, dispensing justice has nothing to do with it).

Why has there been no appeal from Judge Fuller’s sentence and his rulings in the Siegelman case? Another of this judge’s passive-aggressive tricks has been to obstruct the production of a transcript of a trial that occurred nineteen months ago. Without a transcript, Siegelman cannot appeal. He sits in a prison in Louisiana, cleaning latrines, stripped of the most fundamental rights.

The Tuscaloosa News calls this just right in its editorial published today:

A reasonable delay in the transcript. . . could be expected, but this is ridiculous. As University of Alabama political scientist William Stewart observed in November, every day that Siegelman is in jail when the appellate court might rule that he shouldn’t be, “it’s one more day of suffering.”

Fuller has failed to comply with the canon of judicial conduct that requires a judge to promptly dispose of business before his court. And the Siegelman case is a testament to the truth of the old axiom that justice delayed is justice denied.

The conduct in the federal court in Montgomery is an unprecedented disgrace. The misconduct of the judge and prosecutors in this case continues to be a matter for Congressional oversight, for Congress has the duty to expose misconduct by government actors and misbehaving judges. Ultimately that includes the right to remove them from their sinecures.

Take a moment to reflect about this, and then act: call or write a letter to your Congressman and your senators today demanding that they press the investigation of the prosecution and trial of Don Siegelman. You can get information on your representatives here.

A first hearing was held on October 23, 2007 in the Judiciary Committee, which was stonewalled by a recalcitrant Justice Department. Congress needs to issue subpoenas requiring the offending parties to appear and submit to questions under oath. It’s time to bring this farce to an end and hold those who have dragged our justice system through the mud to account for their misconduct.

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