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.
"The recusal order is under seal," commented the Alabama blog Grievance Project, written under a pseudonym by an Alabama attorney, "making it impossible to learn what conflicts the parties saw in the matter, nor why Judge Fuller felt free to handle the case for some time before withdrawing. It could be legitimate, or it could be a cover-up, and there is no way to find out with the seal in place."
Walton v. Neptune Technologies (2009). This case illustrates the potential risk for attorneys, private investigators and litigants when researching the background of a judge.
Priscilla Black Duncan of Birmingham, an active Democrat, is a sole practitioner whose clients include Jill Simpson and her friend Mark Bollinger. Bollinger, with 35 years of law enforcement experience, used his account with the data service ChoicePoint to help her research a question about Doss Aviation in February 2007 for Scrushy's unsuccessful motion asking Fuller to recuse.
Also, Duncan represents Rebecca Walton, who filed a job bias and sex harassment suit in 2005 against her former employer Neptune Technologies. In March 2009, Duncan requested that Fuller recuse himself from Walton on the grounds that "he would find it impossible to be fair," given her other clients Simpson and Bollinger.
In her legal brief, Duncan noted Simpson's research exposing Fuller's finances and her congressional testimony in 2007. In that testimony, Simpson alleged that a Republican friend had predicted in early 2005 that Siegelman would be indicted and that Fuller would be assigned the case to "hang" the defendant. Simpson said she was told that Fuller "hated" Siegelman because of the circumstances of the RSA pension case.
Regarding Bollinger, Duncan's brief cited email correspondence suggesting that ChoicePoint cut off Bollinger's subscription to ChoicePoint's 17 billion records because of the judge's complaint about Bollinger's help for Simpson and Scrushy.
Neptune responded by arguing that Fuller should be able to retain jurisdiction over the job bias plaintiff Walton. On April 15, 2009, Fuller ruled that he would continue to preside over Walton because she had not objected to him in a timely manner. Also, Fuller wrote that he would have denied Walton's motion even it had been on time, saying he "has no financial or other personal interest in the actions of any of Duncan's clients."
The judge praised Neptune for the quality of its legal arguments in arguing for his continued oversight, and he ordered all attorneys to prepare for Neptune's request that the court dismiss Walton's lawsuit before trial.
Summing Up
As noted above, the legal standard for recusal relies on the views of ordinary people, not on judges and other legal experts. In empowering a public that can be increasingly well-informed by Internet research, this legal standard reduces the traditional power of judges to pressure attorneys, who typically need to foster good relations with the most important judges in their districts.
Yet it's ultimately judges themselves who interpret the legal standard, and the legal system virtually immunizes judges from scrutiny except in the most clear-cut cases, as noted in the Truthout report by my Hartford Courant courthouse mentor Dennie Williams in his article "Who Is Judging The Judge?"
From this perspective, the federal judiciary's self-protection mechanisms show an awesome power over litigants, with information about finances doled out only long after the fact and in generalities by the Administrative Office of the U.S. Courts. Its spokesperson says, for example, that it does not make public individualized financial reports of judges that are due each May, and it advises interested parties to request the information from the judges. Fuller failed to respond to my requests for his current financial information on Doss Aviation and other holdings.
The power and secrecy of the judiciary dwarfs even the capabilities of a Siegelman, a Rhodes Scholar elected as Alabama's attorney general in 1978. Siegelman says he knew nothing until after his conviction in 2006 about his judge's Doss Aviation holdings and the corruption allegations unearthed by the six months research of Missouri attorney Paul Weeks. Siegelman relied on the 2007 recusal motion by his co-defendant Scrushy, but failed to join it. Courts and the Justice Department, as noted above, have rejected the Scrushy motion as "untimely," with scant comment on the merits.
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