In April 2007, Scrushy and his attorneys filed a motion asking Fuller to recuse himself. The brief alleged that Fuller's 43.75 percent ownership in Doss Aviation reported in state corporation filings was a conflict of interest because of the company's dependence on contracts from the same federal government they said was wrongfully prosecuting Scrushy. Fuller's closely held company had six other shareholders. The only one with more than a 6.25 percent share was Fuller's former law partner, Joe C. Cassady, Sr., with 25 percent.
Frank G. Hunter, Fuller's successor as Doss Aviation chairman and CEO, was later quoted as saying that Fuller's stake has been lowered to 30 percent. Doss officials failed to respond this week to a request to comment on Fuller's current stake in the company, which has received more than $300 million in federal military contracts since the beginning of 2006. The multiyear contracts are for such tasks as training U.S. Air Force pilots nationally, providing the military and such civilian agencies as the FBI with uniforms and safety gear, and refueling Air Force planes, including Air Force One.
Fuller rejected the recusal motion, saying that no reasonable person would think he might be biased. He went on to sentence the two co-defendants in June 2007 to seven years in prison apiece, denying them the appeal bonds that usually are granted to white-collar defendants and ordering them to be sent immediately from court to prison in shackles. Siegelman, 63, later won freedom from an all-Democratic appeals court ruling after nine months in prison, a month of it in solitary confinement. Scrushy, 56, remains in prison.
An all-Republican panel of the federal appeals court affirmed Fuller's jurisdiction on March 6, 2009, saying that Scrushy's argument was "untimely." The appeals court also affirmed five of Siegelman's seven convictions of the 32 charges originally brought by prosecutors. The court dismissed allegations of prosecutorial misconduct and ordered the defendants to reappear before Fuller for re-sentencing.
The mostly Republican full appeals court affirmed the three-judge decision. The Obama Justice Department, which includes many holdover political appointees from the Bush administration in key positions in Alabama and elsewhere, has requested that Fuller increase Siegelman's sentence to 20 years. The reasons for the Justice Department's recommendation are in a letter to the U.S. Probation Department that the Department has declined to discuss.
Gustafson v. Johns (2006). On May 22, 2006, Fuller was one of three judges on a special three-judge panel of the federal court of appeals who dismissed a constitutional challenge by 19 Alabama voters alleging that Alabama's 2001 redistricting was partisan gerrymandering that deprived voters of their rights to fair elections. unanimous decision by two Republicans and a Democrat was that the case should be dismissed because it was so similar to previous litigation.
Redistricting decisions such as this can have enormous impact because the process typically occurs just once every 10 years and carves up congressional districts in convoluted ways to benefit the powerful.
The appeals court judges noted that Gustafson was brought by Republicans, and had its roots in early 1990s activities of the executive committee of Alabama's Republican Party. Fuller himself had served from 1992 to 1998 on that same Republican executive committee.
During that period, the Republican leadership worked with such political strategists as William Canary and his close friend Karl Rove to transform Alabama's state office-holders from primarily Democratic to primarily Republican. The notable exception was Siegelman, the only politician in Alabama's history to hold all four of its top elected statewide offices and serving almost continually in statewide office from 1979 to 2003.
The docket in Gustafson shows no effort to recuse Fuller because of his 1990s Republican political leadership. His work included serving as the campaign manager for longtime Alabama Congressman Terry Everett, a newspaper tycoon from Fuller's district who was one of the most powerful Republican leaders of the House Armed Services Committee until retirement this year.
In sum, the Republican Gustafson plaintiffs lost with Fuller's concurrence, and no one asked for Fuller's recusal. But the case illustrates federal judicial authority over an important dimension of public life, as well as the reluctance of judge and litigants alike to put potential conflict of interest problems on the record.
U.S. v. Stayton (2007). This is another Fuller case involving a recusal that didn't happen, at least not for a year. The case centers on events near Fuller's hometown Enterprise, which is located in south-central Alabama. Nearby is Fort Rucker, the nation's primary flight training base for Army Aviation.
On March 1, 2006, federal prosecutors announced the indictment on corruption charges of William C. Childree, CEO of Enterprise-based Maverick Aviation, and Jeffrey Stayton, an official at the army test and evaluation command center in Enterprise. The government charged that Childree bribed Stayton to help Maverick obtain a $4.7 million contract to modify two Russian helicopters for the U.S. government's use. This was a small part of what was reportedly a much broader campaign to buy Russian helicopters for use in Iraq. Part of that was described in a Wired article this spring by Sharon Weinberger, "How To Get A No-Bid Contract for Russian Choppers."
Much of the case remains secret because of national security. But this much is known: Fuller and his former law partner Joe C. Cassady, Sr. together owned 69 percent of Doss Aviation, according to 2003 Maine corporation counsel records, with total apparently reduced over time. But Fuller waited more than a year after the indictment before recusing himself on March 18, 2007 because of the relationship of Maverick and Doss Aviation. A jury later convicted the defendants before another judge.
The Justice Department's Public Integrity Section pressured Fuller behind-the-scenes to remove himself from the Maverick case after a year of presiding, according to two sources. One of them, Jill Simpson, says, "It shows that Public Integrity knew exactly what kind of guy Fuller was, and had to even figure a way to get him out." But that account is disputed. "The Department of Justice plays no role in the selection of trial judges," according to Department spokeswoman Laura Sweeney, "nor did it take a position for or against any possible recusals in the case you reference involving Maverick Aviation."
The matter could be of continuing interest in the oversight investigations now occurring regarding several of the Justice Department's high-profile prosecutions. The Public Integrity Section is led by William M. Welch, II. He was the department's top official who signed its appeals court brief in the Siegelman-Scrushy in 2008 arguing that not a single informed U.S. citizen might think Fuller biased because of his Doss Aviation status. Welch also led the prosecution effort last fall against then-U.S. Sen. Ted Stevens, the Republican from Alaska whose conviction on corruption charges was vacated this year because of allegations of prosecutorial misconduct.
