Saturday, March 7, 2009
A few quick Schnauzer thoughts after learning late yesterday about the U.S. 11th Circuit Court of Appeals' ruling to uphold most of the conviction against former Alabama Governor Don Siegelman and all of the conviction against his codefendant, former HealthSouth CEO Richard Scrushy:
* Isn't it interesting that the opinion was issued on a Friday afternoon? And word apparently didn't start spreading widely until about mid afternoon in Alabama, which is on central time. Any PR expert will tell you Friday is the day that you release bad news, items that you want to receive as little press attention as possible. Friday evening TV ratings are the worst of the week, and Saturday newspapers are the least read. A quick check of the 11th Circuit's Web site shows the court issued opinions throughout the week. Interesting that it chose to hold the Siegelman opinion for Friday.
* Isn't it interesting that the opinion was issued less than 24 hours after Siegelman appeared on the Rachel Maddow Show and essentially said the Congressional deal for Karl Rove's testimony is a crock of horse feces (which it is) and that Congress is going about its investigation in an ass backwards way (which it is)? Siegelman seemed to be saying that Congress, perhaps at the urging of the Obama Administration, doesn't appear to be making a serious effort to get at the truth. Kind of looks now like someone wasn't happy with him expressing those valid concerns.
* The opinion was issued "per curium," which Harper's Scott Horton says is an approach judges often take when they don't want to own up to their own writing. In other words, the 11th Circuit judges went into major CYA (cover your ass) mode with the Siegelman/Scrushy opinion. Horton also notes that the three-judge panel consisted of all Republicans, including two who have been highly active in partisan politics.
* I haven't had a chance to read the entire 68-page opinion yet, and I do intend to work my way through it. But I don't expect it to shine much light on the real issues involved in the Siegelman case. Politics, not law, ruled the day in the Siegelman affair, and Horton expertly points out that the appellate ruling focused on a narrow set of issues:
Nearly all the disclosures that undermined confidence in the fairness of the Siegelman trial occurred after the trial record was closed–and none of these disclosures were examined by the Court of Appeals. Even though the appeals court looked into jury misconduct, it did not have before it the much more powerful evidence of misconduct that a whistleblowing member of the prosecution team subsequently disclosed to the Justice Department—because the Bush Justice Department, in violation of its plain ethical duties, chose to keep all of that secret. So although an appeal has been taken and resolved, not one of the truly significant issues with the Siegelman case was ever briefed or argued. That remains for the future.
* On the political front, several sources say the Siegelman team has plans for addressing the myriad outside-the-courtroom issues in the case. Said one source:
It is vital that everyone understand that today’s ruling in Governor Siegelman’s case in no way has any effect or implication on the political circumstances that surround this case. Every significant development that has come to light--the 60 Minutes revelations about Nick Bailey’s coached testimony, Jill Simpson’s testimony, Karl Rove’s involvement, TIME magazine's investigative pieces on selective prosecution, the information from the employee in the U.S. Attorney's office regarding the prosecutions relationship with a juror and Leura Canary’s lies about her recusal--none of this was allowed to be part of the appeal because it all came to light after the trial. All of this information and material will be included in a Rule 33 motion for consideration of newly discovered evidence that will be filed in June.
* Aside from all of the political issues, the 11th Circuit almost certainly bungled this appeal. Ample evidence was available in the public square to show the Siegelman/Scrushy convictions had to be overturned by law. Perhaps the most compelling evidence was the pathetic memorandum opinion issued by trial judge Mark Fuller in an effort to show that Siegelman should remain imprisoned pending appeal. Fuller didn't come close to meeting his burden for showing that Siegelman should remain imprisoned. In the process, he showed that he could not justify the conviction, either. And this is the judge who oversaw the trial! Scott Horton said his colleagues in the legal profession considered Fuller's opinion "farcical" and the work of a "third-rate legal mind." Apparently, there are also some third-rate legal minds on the 11th Circuit Court of Appeals--and like Fuller, they are Republicans.
* Want another sign that the 11th Circuit screwed up the appeal? It's undisputed that Fuller presented improper jury instructions on bribery at trial. This is the same thing that happened in the Paul Minor case in Mississippi, although the judge in that case (another Republican appointee) was even more blatant about his chicanery than was Fuller. In both cases, defendants essentially were convicted for crimes that do not exist. And yet news reports indicate that the 11th Circuit found the jury instructions in the Siegelman case to be "sufficient." Sufficient? This is a criminal case, folks, where individuals' freedom is at stake. Criminal law is not supposed to be based on "sufficient." The big question should be: Did the defendants violate the law, as it actually reads, or not? Bribery law is not all that difficult, and Siegelman/Scrushy clearly did not violate it. But the 11th Circuit says it's OK for the jury to decide based on law that Fuller pulled out of his . . . well, that he made up.
* Can you take one final sign that the 11th Circuit screwed up? As we showed in a previous post, the statute of limitations clearly had run on the activity that prosecutors alleged was bribery. News reports indicate that the 11th Circuit found this argument was invalid because Siegelman and Scrushy failed to raise it at trial. But you can check Rule 29(c)(3) of the Federal Rules of Criminal Procedure and see that Siegelman/Scrushy raised the issue in a timely and appropriate fashion.
Our conclusion for now? We are probably being charitable when we say the 11th Circuit screwed up. That language implies honest mistakes, and this almost certainly was an intentional cheat job.
While it's sad to see that Don Siegelman and Richard Scrushy are going to have to continue to fight a bogus prosecution, yesterday's opinion does offer confirmation of the reasons I started this blog in the first place.
I started Legal Schnauzer in June 2007 because I had witnessed corruption in Alabama state courts firsthand. In our very first post, I stated that this corruption appears to go way beyond my little case.