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General News    H3'ed 6/24/09

The Cheating of Don Siegelman, Part I

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Message Roger Shuler
Cross Posted at Legal Schnauzer
We recently introduced our series of posts about the U.S. 11th Circuit Court of Appeals and its unlawful ruling on the Don Siegelman case. Now it's time to dive into the details. Here is part 1 of "The Cheating of Don Siegelman."


The U.S. 11th Circuit Court of Appeals cheated former Alabama Governor Don Siegelman in multiple ways. The most glaring example involves the statute of limitations, so we will start there.

It's undisputed that the government was tardy in bringing bribery charges against Siegelman and codefendant Richard Scrushy.

All of the activity that constituted the alleged bribery took place in summer 1999. But the government's original indictment was dated May 17, 2005. That's almost one full year past the five-year statute of limitations.

Even if Siegelman and Scrushy had committed the worst sort of bribery--and the facts and the law show that they didn't commit bribery at all--the government missed the boat by a long shot.

So how did prosecutors get away with this? First, they crafted a vague indictment that made it unclear when the alleged events took place. And U.S. District Judge Mark Fuller denied Siegelman's motion for a bill of particulars, which would have forced the prosecution to provide specifics.

That probably was the first clear sign that the fix was in on this case.

More importantly, prosecutors argued that Siegelman did not raise the limitations issue in the proper way, that he essentially waived that defense. Both the trial and appellate courts have agreed with the government.

But they are wrong. And here is why.

The 11th Circuit based its finding on two cases, neither of which is applicable to the Siegelman case.

One is United States v. Ramirez, 324 F.3d 1225 (11th Cir. 2003). Ramirez involved a limitations defense raised by way of a post-trial Rule 29 motion, the same method Siegelman's attorneys used. And the defense was rejected, as it was in the Siegelman case.

But here is where the cases differ: In Ramirez, the court found "when a statute of limitations defense is clear on the face of the indictment and requires no further development of facts at trial, a defendant waives his right to raise that defense by failing to raise it in a pretrial motion.”

Ramirez does not apply to the Siegelman case because the limitations defense was NOT clear on the face of the indictment. In fact, the indictment in the Siegelman case said the alleged crimes took place “[f]rom on or about July 19, 1999, and continuing through on or about May 23, 2000 . . .”

On its face, the indictment was unclear. It cites a first date that is way outside the statute of limitations and cites a second date that is inside the limitations period--barely. Fuller did not force the government to make the indictment clear, so Ramirez does not apply.

Of course, if Fuller had forced prosecutors to present a clear indictment, the case would have been over with an acquittal for Siegelman and Scrushy. And the judge certainly didn't want that. So he cheated them.

The 11th Circuit also cited United States v. Najjar, 283 F.3d 1306, 1308 (11th Cir. 2002) for its proposition that “the statute of limitations is a matter of defense that must be asserted at trial by the defendant and that failure to do so results in a waiver." The 11th Circuit says, "Other circuits agree," and proceeds to cite a number of other cases.


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I live in Birmingham, Alabama, and work in higher education. I became interested in justice-related issues after experiencing gross judicial corruption in Alabama state courts. This corruption has a strong political component. The corrupt judges are (more...)
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