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.
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.
That decision followed one last month by Georgia federal judge Dudley Bowen, who admitted that he never should have presided over the corruption trial of former Georgia senate leader Charles Walker because "impartiality might reasonably have been questioned." Walker, a former state senate majority leader and a publisher of Georgia newspapers that are aimed at blacks, had opposed Bowen's judicial appointment three decades ago because of Bowen's membership in clubs that restricted membership to whites. Walker's prosecution on 142 counts of fraud primarily stemmed from claims that his newspapers fooled advertisers by exaggerated circulation totals, which is not uncommon among publications.
Critics of the prosecution such as Horton and Walker's son Charles "Champ" Walker, a radio show host, have cited the case as closely comparable to Siegelman's as an example of an all-out effort by Bush administration Justice Department to target Democrats. The Georgia case was different from Siegelman's, however, because the defendant's judge had been nominated by a Democrat. But evidence leading to the recusal showed the additional factor that the judge was friendly with a newspaper publisher in Augusta who competed with the defendant.
"There's absolutely no doubt that my father's case must be retried or his sentence vacated and rights restored," Champ Walker wrote me on June 10 as he planned a trip to Washington, DC this month to seek Department of Justice review. "We will never stop fighting for him or for the others that have been wronged. I ask the question: How could the DOJ not intervene with the evidence that Judge Dudley Bowen recused?"
The Alabama Cases
Below is a sample of Fuller cases, including two excerpted above, that raise questions about potential judicial bias forbidden by the Code of Conduct for U.S. Judges if it might constitute "impropriety or the appearance of impropriety." The critical year for decision-making is in parenthesis.
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