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Alabama Decisions Illustrate Abuse of Judicial Power

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In 2002 and 2003, RSA and Bronner challenged Fuller's integrity in two disputes that were widely reported in the local press and in back-to-back editorials that Bronner wrote for RSA's monthly newsletter for retirees, The Advisor.  

The first controversy was to prevent a money grab by Alabama criminal investigator Bruce DeVane, who worked for Fuller in the district attorney's office.  In 2000, Fuller raised DeVane's annual pay from $80,307 to $152,014.  That new pay grade was nearly $60,000 more than Fuller's own pay of $92,169 from the state that year as DeVane's boss.  DeVane, 49, then sought to retire and use the higher salary as his pension base for the rest of his life. 

After assuming his federal judicial office on Nov. 26, 2002, Fuller used the prestige of his judicial status on Dec. 4 to testify in support of DeVane's claim, even though section 2B of the Code of Conduct for U.S. Judges discourages testimonials.  The judge cited DeVane's hard work in writing office manuals as a key reason for the raise.  RSA opposed what it projected to be $330,000 in unmerited payments based on Fuller's "salary spike" for DeVane just before retirement.

In another court dispute at the same time, RSA was alleging fraud against the bankers and financial advisors for Enron, Inc., following the largest bankruptcy in U.S. history.  RSA sought reimbursement to protect retirees.  Separately, federal prosecutors were on the way to winning criminal convictions against Enron's top management. 

In 2007, RSA's chairman summed up these disputes in a front-page editorial in The Advisor.  "The RSA had to go through the entire state court system to prevent Judge Fuller's buddy from ripping off the RSA," Bronner wrote.  "Shortly thereafter, Judge Fuller tried to sandbag the RSA by preventing our claim (by doing nothing) against the ultimate crook Enron!  Fortunately, the RSA prevailed on both issues." 

Based in part on evidence from the RSA case and from a state district attorney, Missouri attorney Paul B. Weeks, representing a plaintiff before Fuller in the separate civil lawsuit Murray v. Scott, drew up a motion in 2003 to force Fuller to recuse himself from Murray. 

Weeks alleged that the pension and Enron cases were part of a Fuller criminal conspiracy.  Its essence, Weeks said, was to force the state to provide hush money for DeVane because the investigator knew that Fuller spent so much of his time out-of-state as the chief executive officer of the Colorado-based military contractor Doss Aviation, Inc. "If so," Weeks wrote in his filing, "this would be a judicial infamy of historic dimension: a federal judge who waited only 9 days after taking office before committing crimes and violating laws he swore to uphold" [emphasis in the original].  

Weeks delivered copies of his sworn statement, motion and evidence totaling 180 pages to Fuller and to the U.S. Department of Justice Public Integrity Section, among others.  Weeks obtained Fuller's recusal from the Murray suit, but with no written explanation for the reasons.  Holding the view that Fuller was so dishonest that he should never preside over another litigant, Weeks also asked the Public Integrity Section to prosecute Fuller for perjury and conspiracy to defraud RSA of $330,000 in pension funds.

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Weeks now says that the Public Integrity Section's failure to disclose Fuller's status means that the judge should have announced his status to litigants in the Siegelman case and recused himself if he failed to secure a waiver from them to continue.  His theory was that the Justice Department potentially controlled the judge because it could prosecute the judge himself at any time for conduct far worse than alleged against the defendant Siegelman.

The Justice Department declined to confirm or deny any investigation of Fuller.  The Department and Fuller have maintained at other times that their decisions are justified, with Fuller saying criticism is "politically motivated."  DeVane's attorney Joe C. Cassady failed to respond to a request for comment.  Fuller, before his government work, had been a partner in Cassady's law firm in Enterprise, Alabama.

Recusal Overview

Fuller's proceedings show that he sometimes recuses himself, sometimes not.  Sometimes he writes an opinion justifying his actions, sometimes not.  What's consistent is that his actions have prompted a remarkable level of controversy by litigants and outside critics accusing him of abusing his powers since he took office.

Recusal occurs when a judge decides not to preside over a particular case.  Once a judge recuses, the case is then sent to another judge who then, in turn, assigns the case to a new judge who is qualified to preside.  If granted in a criminal matter after conviction it typically requires a new judge and a new trial.  Federal law requires recusal if an "objective, disinterested lay observer" would have a "significant doubt" about a judge's impartiality.  This legal standard is distinctive in its reliance upon the views of the ordinary person.

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The standard creates a particular drama in the Siegelman case.  This is because Fuller and the Justice Department have maintained that not a single objective and informed person in the U.S. might think the judge biased.  This is despite a public protest that is almost unprecedented this decade anywhere else about the fairness and legality of this case, including the judge's supervision.  

Judges are supposed to initiate their own recusal if circumstances warrant under a leading U.S. Supreme Court case.  In Liljeberg v. Health Svcs. Acq. Corp, the court ruled in 1988 that a Louisiana judge inexcusably failed to remove himself from a case when he knew he was a trustee of a hospital involved.  The case and its applicability to Fuller were described in a May 18 article by Alabama journalist Roger Shuler quoting Weeks entitled, "Siegelman Judge Committed Fraud on the Court."

As one of the recent cases keeping recusal in the news: the Supreme Court ruled June 8 in Caperton v. A. T. Massey Coal Co. that West Virginia's chief justice must recuse himself from a $50 million case against a coal company whose chief executive had spent $3 million to elect him.  Thirty-nine states elect at least some of their judges, according to a New York Times report. See Court opinion. 

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Andrew Kreig is an investigative reporter, attorney, author, business strategist, radio host, and longtime non-profit executive based in Washington, DC. His most recent book is "Presidential Puppetry: Obama, Romney and Their Masters," the (more...)
 

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tells a story that is sickening to someone who was... by Archie on Thursday, Jun 11, 2009 at 11:32:34 PM