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.

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