Siegelman Appeals Panel Might Be Leaning Toward a New Trial

Cross Posted at Legal Schnauzer

An attorney and a veteran journalist, both from Birmingham, said they expect a new trial to be granted in the Don Siegelman case, after listening to oral arguments yesterday at the U.S. Eleventh Circuit Court of Appeals in Atlanta.

Associated Press reported that two of the three judges made comments indicating they saw grounds for granting a new trial.

Attorney Ed Gentle said he expects the appeals panel, at the very least, will grant a new trial based on juror misconduct. Gentle also said he saw signs that the appellate court might overturn the case and throw it out entirely.

Glynn Wilson, of Locust Fork World News & Journal, reported Gentle's comments and said he agreed with the lawyer's analysis after hearing yesterday morning's court session, which lasted less than an hour.

The court's questions focused primarily on juror misconduct and an obstruction of justice count involving the purchase of a motorcycle, with little time spent on the alleged bribe between Siegelman and former HealthSouth CEO Richard Scrushy.

Gentle said that might be a good sign for Siegelman and Scrushy. "The court can't be willfully blind to the overwhelming evidence" that jurors improperly read news reports and communicated via e-mail, Gentle told Wilson. "And if the motorcycle is all the prosecution has, they've got nothing."

Wilson reported that all three judges appeared to have in-depth knowledge of the case, based on having read briefs in the case. And he said the judges' questioning indicated they assumed the juror e-mails were authentic.

Immediately after the hearing, Siegelman said he was "impressed with the depth of knowledge of the judges on the case, and I have full confidence in the court."

Bob Johnson, of Associated Press, reported that one judge said the juror e-mails, if authentic, provided the basis for overturning the convictions and granting a new trial. Another judge said, "These are dynamite letters here."

The Tuscaloosa News had a powerful editorial yesterday, titled "Appeals Court Must Dismiss Case." The paper's editorial staff writes:

There is no doubt that federal prosecutors in the Republican Department of Justice deliberately trained their sights on Siegelman. The state's leading Democrat, he was a prime target for partisan strategists and masterminds. The plotting that figured into his prosecution has been well documented.

On the evidence alone, however, trial judge Mark Fuller should have vindicated Siegelman by dismissing the charges.

According to the prosecution, Scrushy arranged for $500,000 in donations to retire the debt from Siegelman's failed campaign for an education lottery in 1999. In return, they charged, Siegelman promised to appoint Scrushy to the state hospital board.

They based the charge on the testimony of Nick Bailey, a former Siegelman aide who testified as part of a plea deal with the feds. Later, he told CBS News that he was coached by the prosecution, in 70 separate pretrial meetings, to tailor his story for the witness stand.

But even if his story was true, neither he nor any other witness showed there was an explicit promise by Siegelman to appoint Scrushy in exchange for $500,000. Indeed, testimony showed that Scrushy had been named to the board by two previous governors.

But Fuller ignored that point in his instructions to the jurors. He also did a half-hearted investigation of defense complaints that jurors exchanged tainted e-mails.

The Siegelman case stinks. The appeals court should waste little time in ruling for the former governor.