"The evidence is clear to me that Judge Fuller failed to disclose his bias in the Siegelman case and committed fraud on the court," said Paul Benton Weeks, an attorney in Springfield, Missouri. "It is an example of what the Supreme Court has called an 'inexcusable' failure of a judge to remove himself from a case."
Weeks spoke at a media teleconference this morning as a follow up to an investigative report by veteran attorney and journalist Andrew Kreig that was published last Friday at Huffington Post. Kreig reports that Weeks is initiating a renewed call for impeachment amid allegations that Fuller tried to defraud Alabama's state-employee pension system and earned millions of dollars from military contracts during the Bush administration.
Weeks said he uncovered Fuller's misconduct with the assistance of Gary McAliley, a Siegelman appointee who took over as district attorney for two south Alabama counties after Fuller was named to the federal bench by George W. Bush.
"Fuller was deeply concerned that McAliley was going to indict him," Weeks said. "When that concern passed, Fuller became determined to stay on the Siegelman case because he wanted revenge."
Weeks compared Fuller's actions in the Siegelman case to those of a Louisiana judge in Liljeberg v. Health Svcs. Acq. Corp, 486 U.S. 847 (1988). Liljeberg involved ownership of St. Jude Hospital in Kenner, Lousiana. Loyola University had an interest in the hospital, and the judge who heard the case was a Loyola trustee. The judge failed to disclose his relationship to Loyola, and the Supreme Court ruled that was grounds for vacating the judgment in the case.
"If a judge knows something that others in the case don't know, and it would cause an appearance of bias, he has an obligation to identify it and get out of the case," Weeks said. "The Supreme Court said in Liljeberg that the judge's failure to do this was inexcusable."
Weeks said Fuller's actions also raise issues that were addressed in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944). That case involved a fraud on the court that was discovered years after the judgment had been entered. The Supreme Court found that such a fraud required the judgment to be set aside.
Fuller's actions in the Siegelman case rise to the level of a fraud on the court, Weeks said. What is fraud on the court? Here is how one court described it:
Fraud on the court is fraud which seriously affects the integrity of the normal process of adjudication. Gleason v. Jandrucko, 860 F.2d 556, 559 (2nd Cir. 1988). It involves far more than an injury to an individual litigant or a case of a judgment obtained [simply] with the aid of a witness who, on the basis of after-discovered evidence, is believed to possibly to have been guilty of perjury. Id. (citations omitted) (alteration in original). The concept embraces that species of fraud which does or attempts to, defile the Court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases presented for adjudication. Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2nd Cir. 1972) (quoting 7 MOORES FEDERAL PRACTICE ¶60.33, at 515 (1971 ed.).26
The court goes on to describe the elements of a fraud on the court:
The Sixth Circuit has ruled that the elements of fraud upon the Court consists of conduct:
1. On the part of an officer of the Court;
2. That is directed to the judicial machinery itself;
3. That is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth;
4. That is a positive averment or is concealment when one is under a duty to disclose;
5. That deceives the court.
Fuller was an officer of the court in the Siegelman case and concealed a bias that he was under duty to disclose. That, Weeks said, constitutes a fraud on the court.
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