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Alabama Decisions Illustrate Abuse of Judicial Power

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The plight of litigants who face a biased judge is illustrated by the track record of a prominent Alabama federal judge, as well by major recent decisions requiring new trials in West Virginia and Georgia courts.

The track record of Chief U.S. District Judge Mark E. Fuller of Montgomery, Alabama shows that he continues to supervise cases compromised by his personal, financial or political interests despite his promise at his 2002 confirmation hearing to recuse himself from any conflicts. 

Exposure of Fuller's record is timely because of the Senate's forthcoming hearings for Obama administration judicial nominees, and because of growing concerns about the recusal standard.  These include the U.S. Supreme Court's 5-4 ruling June 8 that a West Virginia Supreme Court judge should have recused himself from a case involving a major contributor to his judicial election campaign.  Also, a federal judge in Georgia admitted last month that he shouldn't have tried and sentenced a high-profile political adversary who now seeks dismissal of the charges.

The right to an impartial judge is worth understanding because so many of us are likely to be in court one day, or at least to care about a friend or family member's civil or criminal case.  The federal legal standard requiring recusal centers on whether an ordinary informed person might think a judge's impartiality might be questioned.  In contrast, the vast majority of legal issues are primarily for legal specialists, whether lawyers or judges.  And most of these experts clearly are reluctant to provide the laity with the kind of information below in an analysis of six Fuller cases.

In Alabama, Fuller has declined to recuse himself from the Justice Department's prosecution of former Alabama Gov. Don Siegelman, a longtime personal and political foe.  On May 15, my Huffington Post column documented this under the title, "Siegelman Deserves New Trial Because of Judge's 'Grudge', Evidence Shows....$300 Million in Bush Military Contracts Awarded to Judge's Private Company."  Others have published many criticisms of Siegelman's prosecution by the U.S Justice Department, making it the nation's most controversial criminal case of the past decade.

"The conduct in the federal court in Montgomery is an unprecedented disgrace," wrote Harper's columnist and Columbia University Law School professor Scott Horton, for example, in January 2008. 

Yet there's always two sides to a story, even in an opinion column such as this.  In that spirit, here is the core of an email that Judge Fuller sent me this week after I requested his perspectives:  "However, I cannot comment on any pending case and as much as I would like for the record to be set straight, I will not become involved in responding to accusations about any pending matter.  I appreciate your desire to seek the truth in an unbiased way and I wish you the best of luck." 

That's a nice note under the circumstances.  Additional reader views and news tips are welcome in the comment section below, including from the judge's defenders. 

But today's column focuses primarily on questions about the justice system.  In this, it draws on the advice I received in 1976 on the first day of my five years reporting about the federal justice system for the Hartford Courant, Connecticut's largest newspaper.  "Remember in your reporting, the government is always right!" said a smiling young prosecutor named Paul E. Coffey.  He would go on to win a pioneering prosecution against the mob in Hartford, and then lead the Justice Department's nationwide organized crime strike force that would smash the Mafia's power, thereby helping the country immeasurably. 

A different tone my first day came from my Courant predecessor on the justice beat Thomas "Dennie" Williams when he took me aside in a courthouse hallway at the end of his introductory tour to meet federal judges and prosecutors.  "Don't ever forget," he advised, "that for some of the people coming through this court, you're the last chance they've got."  Williams is still at it, reporting in a 2006 Truthout article about one of nation's most comprehensive studies of public complaints about federal judges.  The findings?  That only six of the nearly 4,300 public complaints over a six-year period resulted in any action by higher authorities.  Five judges received the lowest forms of public or private censure, and one received a secret response.


Focusing on Alabama, Harper's columnist Scott Horton has called for congressional oversight of Fuller and potential removal of the judge and the most devious of the federal prosecutors from "their sinecures."  Horton has authored more than two dozen such columns about Fuller since mid-2007.  Most of them criticized the judge's activism in helping Bush administration prosecutors in 2006 in their all-out effort to convict the Democrat Siegelman on corruption charges in 2006.  A few columns reported on the judge's cozy relationships with powerful elected officials who are in a position to help his business interests, as well as the unwillingness of local media barons to scrutinize those situations.


Yet Fuller's power -- like that of other federal and state supreme court judges -- extends far beyond criminal cases such as Siegelman's to broader issues that directly affect the quality of life in his state.


A review of Fuller's track record since his lifetime appointment in 2002 shows many instances of his judicial activism that helped himself and also raised serious questions of conflict of interest.  The summary below of six controversial cases is long.  In fact, it's remarkably long for a judge who's been in office just six and a half years since his nomination by President Bush and his recommendation by Alabama's two Republican Senators, Richard Shelby and Jeff Sessions.  The Senate recommendations, available here for review, focused upon Fuller's work as a full-time district attorney for the state of Alabama, supervising an office serving two counties. 

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Andrew Kreig is an investigative reporter, attorney, author, business strategist, radio host, and longtime non-profit executive based in Washington, DC. His most recent book is "Presidential Puppetry: Obama, Romney and Their Masters," the (more...)

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