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.
Murray v. Scott (2003). On July 25, 2003, Paul Weeks filed his affidavit seeking Fuller's recusal from Murray, as described above and in my May 15 Huffington Post article. Source materials, including his exhibits and relevant court rulings on this and other cases below, are available here. The Weeks filing was based in significant part on state proceedings involving RSA. Weeks claimed that Fuller's motivation was to keep DeVane quiet about the specifics of Fuller's two concurrent full-time jobs from 1997 to 2002. Fuller was chairman and chief executive officer of Colorado-based Doss Aviation from 1989 to 2002. That overlapped since 1997 with Fuller's state district attorney post.
Weeks promptly won Fuller's recusal from Murray. But neither Fuller nor Eleventh U.S. Circuit Court of Appeals Chief Judge James L. Edmondson described the reasons for the recusal. Furthermore, the legal arguments and evidence submitted to the court system by Weeks were placed in a "separate binder" that is not readily available to other litigants via the federal court system's electronic document retrieval system PACER.
Weeks says that court officials apparently wanted his evidence hidden from any future litigants facing Fuller. If so, Fuller's duty to disclose his conflicts under the Liljeberg Supreme Court case would be especially strong. Siegelman and his co-defendant Richard Scrushy say they never knew before their trial that Weeks had made wide-ranging allegations against Fuller, or that the judge was the largest stakeholder in a military contractor whose revenue depended on government contracts.
Retirement Systems of Alabama v. Merrill Lynch & Co. ("RSA-Enron Case") (2003). In March 2002, Alabama's state pension fund RSA filed suit in Alabama's state court in Montgomery to recover $65 million lost in the "death spiral" of Enron in 2001. RSA requested that Fuller stop trying to assert federal jurisdiction over the case to affect its outcome, and instead let the case remain in its proper venue in state court.
During this period in 2003, Weeks filed his affidavit in the Weeks case, saying, "As I understand it, Judge Fuller refused to recuse himself from the RSA-Enron case. This is a very troubling situation" [emphasis in the original].
"The evidence strongly suggests that Fuller and DeVane committed serious crimes against the RSA," Weeks continued. "By refusing to recuse himself from the RSA's case against Enron, Judge Fuller is positioned to taint the RSA and any RSA official who may testify against Fuller should Fuller ever be prosecuted for his crimes against the RSA [emphasis in the original]. In the RSA-Enron case, Judge Fuller will rule against the RSA on some important issue. Then, if Fuller is ever criminally prosecuted for his crimes against the RSA, Fuller can claim that any RSA official who testifies against Fuller is doing so in retaliation for a court ruling Fuller made against the RSA."
"Thousands of Alabamians rely on RSA for their pensions," wrote Alabama journalist Roger Shuler on his blog in 2007. "And yet Weeks's affidavit presents overwhelming evidence that Fuller first tried to defraud RSA and then wrongfully ruled against RSA in retaliation for the pension fund having the audacity to defend itself from an attempt at fraud. Does Mark Fuller sound like the kind of person who should be in any position of authority? Does he sound like the kind of person who should have been overseeing the trial of former Governor Don Siegelman?"
In the end, RSA was able to transfer its Enron suit away from Fuller to state court. A settlement announced in 2005 by RSA's law firm was that five financial advisors and fund-raisers for Enron agreed to pay RSA $49 million. The settlement of the state case allowed RSA to recoup the vast bulk of the money that it lost in its Enron investments.
U.S. v. Siegelman (2007). Don Siegelman was Alabama's governor from 1999 to 2003. He and former HealthSouth CEO Richard Scrushy were indicted in secret on May 17, 2005, with the case assigned to Fuller. Prosecutors announced the charges and Fuller's assignment on Oct. 26, 2005 in a superseding indictment. The key allegation was that the wealthy Scrushy arranged $500,000 in donations to the Alabama Education Foundation. Siegelman supported the foundation's advocacy for better schools through a state lottery so strongly that he personally signed a loan guarantee for its debt. Siegelman then reappointed Scrushy to a volunteer state board on which Scrushy had served under three previous governors. In 2006, the defendants were convicted on seven of 32 counts on corruption charges.
In February 2007 as sentencing before Fuller approached for the defendants, Jill Simpson alerted Scrushy's attorneys that her work as an attorney representing government contractors enabled her to know that Fuller received massive non-judicial income from Doss Aviation and its affiliates.
Simpson was also a longtime volunteer in opposition research to help Republican candidates against Siegelman and other Democrats. She testified later in 2007 to congressional staff that she was worried before the Scrushy and Siegelman sentencing that she was obligated as an attorney to prevent the defendants from being wrongly framed and imprisoned. She said she had heard clues about a plot among fellow Republicans to prevent Siegelman from running for re-election in 2006, and was later appalled to see something like it unfold. Republicans have denied her allegations.
