Leura Garrett Canary

Crossposted at Oxdown Gazette.

Personal Information: Leura Garrett Canary

  • Name: Hon. Leura Garrett Canary
  • Employment: United States Attorney for the Middle District of Alabama
  • Address: P. O. Box 197, Montgomery, AL 36101-0197
  • Phone: (334) 223-7280
  • Date Admitted: September 25, 1981
  • Law School: University of Alabama

Leura Garrett Canary was nominated by Pres. George W. Bush to be the United States Attorney for the Middle District of Alabama. Since assuming this position in September 2001, Mrs. Canary has failed to adhere to even the most basic tenets of professional conduct required of her by her membership in the Alabama State Bar, beginning with the Preamble to the Alabama Rules of Professional Conduct which states, in part, that

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. [Emphasis supplied.]

The following analysis establishes that Mrs. Canary has violated her obligations under the Alabama Rules of Professional Conduct by her continued participation in the prosecution of Gov. Don Siegelman after her supposed recusal from the matter and that her conduct raises a substantial question as to her honesty, trustworthiness and fitness to practice law. Specifically, Leura Garrett Canary violated the following Alabama Rules of Professional Conduct:

  1. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
  2. RULE 3.3 CANDOR TOWARD THE TRIBUNAL
  3. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  4. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  5. RULE 3.6 TRIAL PUBLICITY
  6. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
  7. RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
  8. RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
  9. RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
  10. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  11. RULE 8.4 MISCONDUCT

Statement of Facts

On November 7, 2008, Rep. John Conyers, as Chairman of the House Committee on the Judiciary, and Rep. Linda Sanchez, as Chair of the Subcommittee on Commercial and Administrative Law, sent a letter to Attorney General Michael Mukasey in which they succinctly set forth the facts under which Mrs. Canary – allegedly – recused herself from the prosecution of Gov. Don Siegelman:

Department of Justice records show that United States Attorney Leura Canary recused herself from the Siegelman case on May 16, 2002. According to the Acting United States Attorney responsible for the case, “In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest.” [Footnote] 15 Mr. Franklin further explained that “Ms. Canary had no involvement in the case, directly or indirectly, and made no decisions in regards to the investigation or prosecution after her recusal. Immediately following Ms. Canary’s recusal, appropriate steps were taken to ensure the integrity of the recusal, including establishing a ‘firewall’ and moving all documents relating to the investigation to an off-site location. [Footnote] 16 On October 5, 2007, Mr. Franklin stated again “[Leura Canary’s] recusal was scrupulously honored by me.” [Footnote] 17 These statements have been repeated many times and have been relied on by defenders of the Department’s handling of this politically-sensitive matter.

[Footnote] 15 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 16 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 17 October 5, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://www.wsfa.com/global/story.asp?s+7176844&ClientType=Printable

On May 16, 2002, Mrs. Canary clearly and unequivocally declared that she had recused herself from the prosecution of Gov. Siegelman stating in this press release that:

As to any matters pertaining to any current investigation of state officials or matters of state government which may or may not be underway, the Department of Justice has advised me that no actual conflicts of interest exist. However, out of an abundance of caution, I have requested that I be recused to avoid any question about my impartiality.

It is of the utmost importance to me, as a United States Attorney, that the people in the Middle District of Alabama and throughout the State have confidence in the manner in which matters are handled by me and by the office I serve and that no one has a basis under which to question the integrity of any investigation undertaken by my office. To that end, the Department has assigned responsibility for the supervision of any investigation regarding state officials or matters of state government to First Assistant United States Attorney Charles R. Niven.

Scott Horton, a contributor to Harper’s Magazine and author of the weblog No Comment for Harper’s website, has been following the prosecution of Don Siegleman and has written extensively on the subject. In his article September 14, 2007 article The Remarkable ‘Recusal’ of Leura Canary, Prof. Horton identified two material misstatements that raise the question of Mrs. Canary’s honesty regarding her recusal from the case:

I question the honesty of Leura Canary’s statement. First, it makes the claim–continuously repeated–that Mrs. Canary took this step on her own initiative. In fact she took it because of the request that attorney Johnson filed with the Justice Department, which launched an independent look at the matter.

Second, Mrs. Canary says that the Justice Department told her that she was okay from a conflicts perspective. I put the question to two prominent legal ethicists: would the facts I presented require Mrs. Canary’s recusal from the investigation of Governor Siegelman? Answer: “this is not a borderline or close case. Under the facts you outline, Mrs. Canary violated the canons of ethics by undertaking and handling the investigation of Governor Siegelman for the period up to her recusal.” Do you believe that a Department of Justice Office of Professional Responsibility officer would have advised Mrs. Canary that there was “no actual conflict.” Answer: “The standard that applies is whether there would be an ‘appearance of impartiality,’ not ‘actual conflict,’ so the Canary statement misstates the rule. Nonetheless, here the situation passes far beyond ‘appearance of impartiality’ and reaches an actual conflict. The advice she suggests could not have been competently rendered. It would be very interesting to know who at Justice gave such advice.” …

As far back as September 2007 when he published his article, Prof. Horton questioned whether Mrs. Canary had recused herself in fact and not just in word, noting that Mrs. Canary’s statement that she recused herself is only the beginning of the discussion:

And third, the press statement says she recused herself. But did she?

The question then became follow-through. Career senior Justice Department officials tell me that when a U.S. Attorney recuses him- or herself, there is a standard procedure followed: a conflict of interest certification is prepared and submitted in the matter; a certificate of divestiture is prepared and submitted; “502 determinations” are prepared; there is also other ordinary documentation such as a formal appointment of an acting U.S. attorney to handle the matter, transmittal documentation and the like. The normal process, as I am told, is that a neighboring U.S. Attorney is appointed to handle the matter, usually with support of career professionals who would otherwise report to the recused U.S. Attorney.

I can find no evidence that any of these standard procedures were followed. Instead, according to public statements, a member of Mrs. Canary’s staff was appointed to handle the matter. In fact the person she designated was her principal prosecutor; that is, someone whose career and advancement was dependent directly upon her evaluations, not those of an intermediate staffer. When I reviewed this with a career senior Justice Department official I was told: “That’s very odd, and it violates the basic recusal rules. If the recused U.S. Attorney has appointed one of her staffers, without the supervision of another U.S. Attorney, then she has not really recused herself at all. The staffer operates in her office, under her apparent supervision, subject to her performance evaluations, and receiving her paychecks. The idea that the U.S. Attorney is recused and that the staffer is running the show would be a difficult sale to anyone with eyes and possessed of a brain.” Precisely. The ploy only works when the local media report it and don’t ask any questions or use their analytical faculties.

In September of 2007, the evidence that Mrs. Canary had not recused herself in fact from the prosecution that was available to Prof. Horton was limited to Mrs. Canary’s involvement in several press opportunities:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

However, as Rep. Conyers and Rep. Sanchez explain in their letter to Attorney General Michael Mukasey, documents – obtained by both Prof. Horton and Adam Zagorin – have surfaced that establish that Mrs. Canary did not, as a matter of fact, recuse herself from the prosecution of Gov. Siegelman:

Ms. [Tamarah] Grimes[, an employee of the United States Attorney for the Middle District of Alabama,] has provided several emails[*] casting serious doubts on these assertions, however. The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

[Footnote] 18 September 19, 2005, email from Leura Canary to JB Perrine, Steve Feaga, Louis Franklin, Debbie Shaw and Patricia Snyder.

[*Portions of the images of the e-mails released by Ms. Grimes are printed below.]

Regarding Mrs. Canary’s advice that the prosecution seek a gag order against Gov. Siegelman, Adam Zagorin reported on November 14, 2007 at Time.com that the prosecution team did just that:

Prosecutors in the case seem to have followed Canary’s advice. A few months later they petitioned the court to prevent Siegelman from arguing that politics had any bearing on the case against him. After trial, they persuaded the judge to use Siegelman’s public statements about political bias — like the one Canary had flagged in her e-mail — as grounds for increasing his prison sentence. The judge’s action is now one target of next month’s appeal.

Writing at the Daily Beast, Prof. Horton characterized Mrs. Canary’s conduct in this manner:

Canary, attaching a Siegelman campaign missive to one email, noted that Siegelman claimed that the prosecution is politically motivated and that 67 percent of Alabamans agree with him. Canary suggested that her subordinates obtain a gag order against Siegelman to bar him from making any references to the political nature of the charges brought against him. The communication suggested that Canary’s motivation is, just as Siegelman alleges, political in nature. More significantly, it demonstrates that Canary continued to drive the case notwithstanding her “recusal.”

In fact, the prosecutors sought a gag order against Siegelman and persuaded the judge, a former member of the Executive Committee of the Alabama G.O.P., to ratchet Siegelman’s sentence upwards because he claimed he was a victim of a political prosecution led by Republicans. (Recent polling suggests that Alabamans believe by overwhelming margins that Siegelman was a victim of a political prosecution, and newspaper editorial boards across the state called for his release.)

In another email, Canary’s first assistant referred to Canary making staffing decisions surrounding the prosecution of the Siegelman case long after her “recusal.” These allegations are backed up by the fact that Canary repeatedly appeared at news conferences concerning the Siegelman prosecution and granted at least three press interviews to discuss it—all after she said she had removed herself from the case.

In their letter to Attorney General Michael Mukasey, Rep. Conyers and Rep. Sanchez continue to document Mrs. Canary’s unethical conduct:

Ms. Grimes has provided other documents to the Committee that bear on this issue. In one email, Ms. Canary forwards another another article to essentially the same group of recipients. [Footnote] 19 This too appears improper and again raises the question why a recused United States Attorney would be providing such information to the active prosecution team. Another email notes that Ms. Canary was consulted about the decision to add Ms. Grimes to the Siegelman/Scrushy team – referred to as the “big case” – and states that “Leura and Louis both liked the concept[“] and further reports that “Leura asked me to pass this information [regarding Ms. Grimes’ role on the case] on …[.]” [Footnote] 20 We appreciate that a United States Attorney who is recused from a particular matter will continue to play a role in the overall administration of the office, but question whether participating in detailed discussions about the staffing of the matter from which she has been recused is appropriate and whether messages or information from the recused United States Attorneys should be passed on to new members of the team.

In her July 2007 report to OPR, Ms. Grimes elaborated on this subject, stating that “Leura Canary kept up with every detail of the case through Debbie Shaw and Patricia Watson.” [Footnote] 21 Once again, if this statement is accurate, it raises serious concerns. It is difficult to imagine the reason for a recused United States Attorney to remain so involved in the day to day progress of the matter under recusal.

[Footnote] 19 September 27, 2005, email from Leura Canary to Steve Feaga, Louis Franklin, JB Perrine, and Patricia Snyder.

[Footnote] 20 April 6, 2005, email from Patricia Snyder to Steve Doyle

[Footnote] 21 July 30, 2007 Letter to H. Marshall Jarrett from Tamarah Grimes.

On November 21, 2008, Adam Nossiter at the New York Times reported that:

Yet in her complaint, the Justice Department employee, Tamarah T. Grimes, cited several instances suggesting Ms. Canary maintained a close watch on the case. Ms. Grimes said a legal aide in the office reported on Mr. Siegelman’s trial to Ms. Canary or her top deputy “every day, sometimes several times per day by telephone.” Once, she observed Ms. Canary “frantically pacing in the executive suite” after a courtroom blowup, “pleading with someone” to get on the phone to “tell Louis he has to control his temper.”

Ms. Grimes also disclosed an e-mail message written by Ms. Canary commenting on legal strategy in the case and suggesting to aides that Mr. Siegelman not be allowed to “comment on court activities in the media.” Ms. Grimes, who is also in a dispute with the department related to her accusations that the Siegelman prosecution team had harassed her, cited the affidavit of a former legal aide in the Montgomery office, Elizabeth Jane Crooks, who wrote that “the morning that the trial started, the U.S. attorney herself carried food and beverage over to the courthouse to support the ‘Trial Team.’ ”

Mr. Siegelman’s lawyers have reacted with anger to these contentions, saying they demonstrate that Ms. Canary never really took herself out of the case. “She was supposed to be recused precisely because her involvement would reek of political conflict of interest, yet she remained involved,” they wrote in a filing to the 11th Circuit court this week.

Mrs. Canary has denied any wrongdoing both personally and through her subordinates. In reviewing Mrs. Canary’s conduct, neither her nor Mr. Franklin’s statements that Mrs. Canary recused herself need not – and indeed must not – be accepted at face value. To the contrary, her denials of improper motives or conduct must be evaluated based on the totality of the circumstances. As provided in the adopted Terminology of the Alabama Rules of Professional Conduct, for Mrs. Canary to believe that her conduct was proper, she must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.”

For example, in her May 16, 2002 press release, Mrs. Canary admitted that “it would not be appropriate for me to discuss any investigations that may or may not be under review in my office.” However, as Prof. Horton notes in his article The Remarkable ‘Recusal’ of Leura Canary, Mrs. Canary made this statement to the Los Angeles Times:

Leura Canary said that suggesting she exerted political influence over the case was “a ridiculous assertion” because it was handled by a career prosecutor, Franklin, in conjunction with the public integrity section of the Justice Department in Washington.

As noted above, Prof. Horton reported on several interactions between Mrs. Canary and the press regarding the prosecution of Gov. Siegelman after her alleged recusal:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

Mrs. Canary’s denials were echoed by Louis V. Franklin, Sr., Acting U.S. Attorney in the Siegelman/Scrushy Prosecution:

When the investigation first began, Leura Canary was not the U.S. Attorney for the MDAL. Initially, the investigation was brought to the attention of the Interim U.S. Attorney, Charles Niven, a career prosecutor in the U.S. Attorney’s Office. Niven had almost 25 years of experience as an Assistant U.S. Attorney in the office prior to his appointment as Interim U.S. Attorney upon U.S. Attorney Redding Pitt’s (currently attorney of record for Defendant Siegelman in this case) departure.

Ms. Canary became U.S. Attorney in September 2001. In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest. Although Department of Justice officials reviewed the matter and opined that no conflict, actual or apparent, existed, Canary recused herself anyway to avoid even an appearance of impropriety. I, Louis V. Franklin, Sr., was appointed Acting U.S. Attorney in the case after Charles Niven retired in January 2003. I have made all decisions on behalf of this office in the case since my appointment as Acting U.S. Attorney. U.S. Attorney Canary has had no involvement in the case, directly or indirectly, and has made no decisions in regards to the investigation or prosecution since her recusal. Immediately following Canary’s recusal, appropriate steps were taken to ensure that she had no involvement in the case. Specifically, a firewall was established and all documents relating to the investigation were moved to an off-site location. The off-site became the nerve center for most, if not all, work done on this case, including but not limited to the receipt, review, and discussion of evidence gathered during the investigation.

* * *

Armed with cooperation agreements from Bailey, Young and Kirsch, the investigation continued. In June 2004, a special grand jury was convened to further assist in the investigation. An indictment was returned under seal against Mr. Siegelman and ex-HealthSouth CEO Richard Scrushy on May 17, 2005. The first superseding indictment was filed and made public on October 26, 2005, charging Siegelman, Scrushy, Siegelman’s former Chief of Staff Paul Hamrick, and Siegelman’s Transportation Director Gary Mack Roberts. …

However, as specifically noted by Rep. Conyers and Rep. Sanchez in their letter to Attorney General Michael Mukasey, it was during this exact time frame specified by Acting U.S. Attorney Franklin in which Mrs. Canary clearly was not recused in fact from the prosecution of Gov. Siegelman:

The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

In light of the evidence presented by Ms. Grimes and the contradictions between her actions and her contradictory, self-serving statements, Mrs. Canary’s denials are simply not believable. In short, “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, and, therefore, Mrs. Canary should have known that her conduct was improper even if she actually (and, in that case, quite incompetently) did not know her conduct was improper.

If the reputations of the Department of Justice and the Alabama State Bar are ever to be salvaged, Mrs. Canary must be investigated by the Alabama State Bar Office of Legal Counsel and referred to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct. Although the Alabama State Bar Office of Legal Counsel has the authority to begin an investigation on its own volition, a state bar system will not normally begin a formal investigation until it receives a formal complaint. A formal grievance complaint can’t be filed online, but anyone – whether a resident of Alabama or not or otherwise involved in this matter – can easily file a grievance against Mrs. Canary with the Alabama State Bar in just three simple steps:

  1. Print, complete and sign the official Alabama Complaint Against a Lawyer;
  2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
  3. Mail the complaint to the address noted on the Complaint Form.

Rules Violated by Leura Garrett Canary:

  1. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
  2. RULE 3.3 CANDOR TOWARD THE TRIBUNAL
  3. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  4. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  5. RULE 3.6 TRIAL PUBLICITY
  6. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
  7. RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
  8. RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
  9. RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
  10. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  11. RULE 8.4 MISCONDUCT

*Portions of the images of the e-mails released by Ms. Grimes. The complete images of the e-mails can be found here.

September 19, 2005 e-mail from Leura Garrett Canary:

Image

September 25, 2005 e-mail from Leura Garrett Canary:

Image

April 6, 2005 e-mail from Patricia Snyder to Stephen Doyle:

Image

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

h/ts: Legal Schnauzer, WriteChic Press, at-Largely and capt.

Thanks are also due to Scott Horton for all his contributions to reporting on the Siegelman prosecution.

Text of the Alabama Rules of Professional Conduct violated by Mrs. Canary

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Had enough yet?

The Legal Schnauzer shares a letter he recently received. In his post, Message From a Political Prisoner, he describes the receipt of the letter as “a profound experience recently, something I never dreamed would happen to me as a U.S. citizen.” He explains:

My letter was from Wes Teel, a former state judge in Mississippi who is in federal prison in Atlanta after being convicted in the Paul Minor case. Wes and I have never met; we’ve never even talked on the phone. But we got acquainted via e-mail when I began to write about the Minor case last September.

Wes and his codefendants, fellow state judge John Whitfield and well-know plaintiff’s attorney Paul Minor, had been convicted, and Wes was looking at reporting to federal prison in December 2007.

In our e-mail exchanges, I found Wes to be a man of keen intellect, common sense, and good humor–even in the face of going to prison for a crime he did not commit. I came to consider Wes a friend, and I shared his pain when he had a heart attack not long after reporting to federal prison. I shared his concerns about his wife, Myrna, who has multiple sclerosis and needed care while her husband was eight hours away in federal prison. I know he worried about his grandchildren and what they would grow up to think of a country that could imprison their grandfather simply for doing his job as a state judge.

On the surface, Wes and I might seem like unlikely friends. My blog started only because of the wrongdoing I had witnessed from lawyers and judges in Alabama state courts. Corrupt lawyers and judges have brought my wife and me to the edge of ruin–and here was Wes, a lawyer and former judge who was charged with being corrupt himself.

But here is one of many lessons I’ve learned from my Legal Schnauzer journey: Just because you’ve had a bad experience with someone in a certain profession, don’t assume that everyone in that profession is a bad actor.

After studying the Minor case at length, I realized that Wes Teel and John Whitfield were honest judges. They ruled for Paul Minor’s clients because that’s what the facts and the law required them to do. And I realized that, based on the evidence I had seen, Paul Minor was an honest lawyer. Certainly in the cases the government had used to build its prosecution, Minor acted properly, and his client prevailed because they should have prevailed.

The Minor case taught me that not even all Republican judges are corrupt. Another codefendant was Oliver Diaz, a justice on the Mississippi Supreme Court who was tried and acquitted twice. And Diaz is a Republican.

I realized that the bad guys in the Minor case were not lawyers, judges, or even Republicans. No, it is that certain breed of Republican that has been infected by a virus that seems to have started with George W. Bush and Karl Rove and wound up sickening our entire justice system.

Wes Teel is a victim of that justice system. His letter made me sad, angry, and ultimately, determined:

Please go to the full post to read more excerpts of Mr. Teel’s letter, but contemplate this excerpt which, as noted by the Legal Schnauzer, answers the question:

What does it mean to be a political prisoner in the United States?

Due to the conviction, unless it is overturned, I am essentially no longer a citizen. I can’t vote, possess a firearm, hold a bond, run for public office, or ever practice law again. Despite all of this, I have a vested stake in the success of our Republic. I want my grandchildren to grow up and be proud of our constitution and our government. I pray that change will one day come, and my precious grandchildren can come to enjoy the freedoms instituted by our Founding Fathers and paid for by the blood and sacrifice of many patriots.

Had enough yet to file a grievance?

If not, there’s more. Juxtapose the politicized prosecutions of Wes Teel, John Whitfeld, Paul Minor, Oscar Diaz, Don Siegelman, Georgia Thompson and Dr. Cyril Wecht with the politicized refusal by Michael Mukasey to prosecute Michael Elston, Kyle D. Sampson and Monica Marie Goodling. Scott Horton of Harper’s Magazine has named this selective failure to prosecute The Mukasey Doctrine and describes it like this:

Today [Attorney General Michael Mukasey] addressed the annual convention of the American Bar Association, and expanded upon what may be known to future generations as the “Mukasey Doctrine.” This doctrine holds that political appointees in the Justice Department who breach the public trust by using their positions for partisan political purposes face no punishment for their crimes. In the Mukasey view, this is all simple political gamesmanship—“boys will be boys”—and sufficient accountability is provided by exposing their games to the public limelight.

After reviewing in the briefest terms the recent internal Justice Department probe into the politicization of the hiring process in the honors program, with respect to immigration judges and in other areas, here’s what Mukasey has to say:

The conduct described in those reports is disturbing. The mission of the Justice Department is the evenhanded application of the Constitution and the laws enacted under it. That mission has to start with the evenhanded application of the laws within our own Department. Some people at the Department deviated from that strict standard, and the institution failed to stop them.

I want to stress that last point because there is no denying it: the system failed. The active wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system–the institution–failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.

Note how Mukasey plays the entire affair down and uses the traditional language of the criminal defendant–for him it was a “system failure.” His language is passive: things evidently just happened. But in fact a closer read of the Inspector General’s report shows that the figures involved and the schemes adopted had a clear provenance in the White House, and specifically in the warren of Karl Rove. The actors under investigation, Kyle Sampson and Monica Goodling, had come with Alberto Gonzales from the White House. They benefited from an extraordinary delegation of authority from Gonzales that allowed them, two thirty-somethings with little experience, to exercise the authority of the attorney general in the hiring and firing process. This didn’t “just happen.” It was the result of a careful plan for partisan entrenchment at Justice—consciously pursued in defiance of the law. A serious investigation would have focused on the senior figures responsible for this program. So what is the penalty for such a systematic violation of the law? Well, according to Mukasey, there isn’t one. Those involved have already suffered enough. Yes, they suffer because their misdeeds are now known.

Their misconduct has now been laid bare by the Justice Department for all to see.

* * *

Mukasey insists that the process of partisan entrenchment has been checked following his arrival.

* * *

The message that Mukasey is sending seems to be this: he will refuse to appoint a special prosecutor to look into the matter, whatever the inspector general suggests. In the Mukasey view, it will be enough punishment for the truth to come out.

Had enough yet? Ready to file a grievance?

From Dana Jill Simpson by Glynn Wilson of The Locust Fork Journal spoke to Dana Jill Simpson, who explains why we need to continue this fight:

After hearing about the speech and reading the stories about it, North Alabama attorney Jill Simpson said in a statement that Mukasey is a “disgrace to our country” and those who really pursue justice.

She called on President George W. Bush to restore the rule of law and fire Mukasey.

“He is showing a complete lack of respect for the rule of law by not charging individuals who were part of the United States Justice Department that broke the law,” she said. “He is creating a class of individuals that are above the law in this country and that is wrong. They should be tried for the crimes they committed, but Mr. Mukasey told the ABA they are going to get off Scott free.”

“These Doj employees broke the law it doesn’t matter where they work, ignorance to the law is no excuse, plus the evidence suggests these folks knew what they were doing and broke the law anyway. They should be tried and, if convicted, punished for their crimes,” she said.

Or at least disbarred. It’s time to file grievances against these attorneys.

Updated August 13, 2008 to fix title.

Updated August 15, 2008: More on Wes Teel here.

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It’s not paranoia if they ARE out to get you, No. 3

h/t: Capt at Alternate Reality , mdking at Writechic Press and Roger Shuler at Legal Schnauzer

In their May 1, 2008 Raw Story article Break-ins plague targets of US Attorneys, Larisa Alexandrovna, Muriel Kane and Lindsay Beyerstein report on the troubles that seem to befall people that don’t toe the Republican party line. In addition to the house fire and automobile accident suffered by Dana Jill Simpson and the burglary of the office of Don Siegelman’s lawyer, Susan James, as Scott Horton previously noted, Alexandrovna, Kane and Beyerstein and the stories of five other people associated with the Siegelman matter and two other federal cases.

In Alabama, for instance, the home of former Democratic Governor Don Siegelman was burglarized twice during the period of his first indictment. Nothing of value was taken, however, and according to the Siegelman family, the only items of interest to the burglars were the files in Siegelman’s home office.

Siegelman’s attorney [Susan James ] experienced the same type of break-in at her office.

In neighboring Mississippi, a case brought against a trial lawyer and three judges raises even more disturbing questions. Of the four individuals in the same case, three of the US Attorney’s targets were the victims of crimes during their indictment or trial. This case, like that of Governor Siegelman, has been widely criticized as a politically motivated prosecution by a Bush US Attorney.

The main target of the indictment, attorney Paul Minor, had his office broken into, while Mississippi Supreme Court Justice, Oliver E. Diaz Jr., had his home burglarized. According to police reports and statements from Diaz and from individuals close to Minor, nothing of value was taken and the burglars only rummaged through documents and in Minor’s case, also took a single computer from an office full of expensive office equipment.

The incidents are not limited to burglaries. In Mississippi, former Judge John Whitfield was the victim of arson at his office. In Alabama, the whistleblower in the Don Siegelman case, Dana Jill Simpson, had her home burned down, and shortly thereafter her car was allegedly forced off the road.

While there is no direct evidence linking these crimes to the US Attorneys’ office targeting these individuals, or to the Bush administration, there is a distinct pattern that makes it highly unlikely that these incidents are isolated and unrelated.

All of these crimes remain unsolved.

These allegations are just the introduction to the article. Alexandrovna, Kane and Beyerstein follow with the details that back up these allegations in the remainder of Break-ins plague targets of US Attorneys .

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It’s not paranoia if they ARE out to get you, No. 2

From Scott Horton at Harper’s:

Seems that people who raise their voice in support of former Alabama Governor Don Siegelman are often the victims of unfortunate accidents. Ask Dana Jill Simpson, the Rainsville Republican lawyer who notes that as soon as she told some friends that she had resolved to file an affidavit exposing what was going on in the Siegelman case, unfortunate accidents started happening. Like a fire at her home, and a brush with a motor vehicle operated by an off-duty law enforcement officer that resulted in her car being totaled. Well, maybe these were just accidents. In fact, Simpson seems convinced they were. But it’s clear that she has some vague and lingering doubts.

And then, following the sentencing phase of the Siegelman trial, his lawyer, Susan James, reports that her office was ransacked. These weren’t your ordinary vandals, it seems. They left computers, television sets, champagne and bottles of alcohol untouched. And they focused with laser-like intensity on her client files.

Full article here.

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Mark Everett Fuller

The Preamble to the Alabama Rules of Professional Conduct states, inter alia, that

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

As a public citizen, a lawyer should seek improvement of the law, of the administration of justice, and of the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

In multiple instances, Mark Everett Fuller has failed to adhere to these – and many other – standards of conduct.

Mark Everett Fuller was nominated by President George W. Bush on August 1, 2002 to the U.S. District Court in Alabama and was confirmed by the U.S. Senate on November 14, 2002. Since taking the bench, Judge Fuller has breached various rules of professional conduct, most notably in his handling of the prosecution of former Alabama Governor Don Siegelman. Judge Fuller should be investigated by the Alabama State Bar Office of Legal Counsel to answer for his violations of the Alabama Rules of Professional Conduct. The following analysis establishes the factual basis needed to file a grievance against Judge Fuller. Due to the complexity of the case, I have quoted extensively from the work of Scott Horton to establish a factual basis for Judge Fuller’s violations.

Personal Information:

  • Name: Hon. Mark Everett Fuller
  • Firm: U. S. District Court
  • Address: One Church Street
    Montgomery , AL 36104-0000
  • Phone: (334) 954-3640
  • Fax: (334) 954-3649
  • Date Admitted: September 27, 1985
  • Law School: Alabama, University of

Grievance Information: Alabama

Allegations:

Judge Fuller improperly failed to recuse himself from the prosecution of Don Siegelman

Scott Horton, a contributor to Harper’s Magazine and author of the weblog No Comment for Harper’s website, has been following the prosecution of Don Siegleman and has written extensively on the subject. In his article Mark Fuller and the Siegelman Case, Mr. Horton provides background for review of this matter:

In 2002, Don Siegelman lost the governorship of Alabama to Bob Riley by 3,000 votes, raising suspicions of electronic vote tampering. According to an affidavit 1

[Footnote] 1. The affidavit was prepared to serve a limited-purpose challenge to the role of Terry Butts, who appeared as a lawyer in the Scrushy/Siegelman case, had previously worked for Governor Riley.

by lifelong Republican Dana Jill Simpson, on November 18, 2002, soon after Siegelman’s defeat, a conference call was held among Bob Riley’s senior aides, and during the call William Canary, a prominent Alabama Republican, said “not to worry about Don Siegelman” because “his girls”— meaning two U.S. attorneys, Alice Martin and Canary’s wife Leura, both of whom subsequently indicted Siegelman—would “take care” of the governor; furthermore, Karl Rove was described as “pursuing” Siegelman with help from U.S. attorneys in Alabama. (Time has a thorough article on the issue, with a response from Canary.)

In November 2003, one year after Siegelman’s defeat, the Mobile Press-Register published a poll showing that in the event of a rematch between Riley and Siegelman, Siegelman would prevail. 2

[Footnote] 2. Bill Barrow, “Riley’s Ratings are Low: Governor Would Trail Moore, Siegelman in 2006 Race,” Mobile Press-Register, Nov. 16, 2003, p. 6..

I spoke with sources within the Alabama GOP who told me that this poll set off alarm bells and was cause for a number of meetings and discussions about how to deal with the “Siegelman problem.” Before long, I believe, a solution to that problem manifested itself in the form of an indictment.

The Tuscaloosa Case
In May 2004, Alice Martin brought the case on claims that Governor Siegelman, with two other men, had been involved in an effort to rig bids on a state project in Tuscaloosa. After a series of recusals, the case came before the Chief Judge of the Northern District, U.W. Clemon, in Birmingham. As reported in the Montgomery Advertiser, Martin was opposed to Clemon handling the case and attempted to force his recusal. Clemon, however, rejected the Justice Department’s request that he step aside. He also refused to allow the defense to portray the proceedings as a “political conspiracy,” but also expressed skepticism that the government had enough evidence to make out a case of conspiracy, which was the principal count. In my analysis of the case, I found that Clemon asked penetrating questions of the prosecutors, and when their answers reinforced his suspicions, he demanded that they present a prime facie showing of their case before allowing the matter to proceed. When they were unable to do this, Judge Clemon dismissed the conspiracy case with prejudice, and with that, the first effort to prosecute Siegelman imploded in October 2004.

Enter Mark Fuller
But there was more to come. In October 2005, federal prosecutors indicted Siegelman on new corruption charges in Montgomery, Alabama, a different judicial district distinct from the Northern Alabama district in which Clemon had previously dismissed similar charges without prejudice. In theory, federal judges are assigned to cases at random. But according to a well-placed Alabama GOP source who wishes to remain anonymous, some senior figures in the Alabama GOP appear to have known from the start that this case was going to be handled by a man they counted a friend, namely, George W. Bush–appointee Mark Fuller. Regardless of whether the GOP had the power to influence case assignments, Mark Everett Fuller was in fact assigned as judge who presided over the grand jury proceedings in this second effort to prosecute Siegelman.

* * *

Mark Fuller and the Siegelman Case, Scott Horton, July 31, 2007

Mr. Horton further describes the personal animosity held by Judge Fuller for Mr. Siegelman which should also have resulted in Judge Fuller’s recusal in this matter:

Fuller’s tenure as District Attorney for Alabama’s 12th Judicial Circuit lasted from 1997, when he was appointed by Republican Governor Fob James, through 2002, when, based on recommendations from Alabama Republican Senators Richard Shelby and Jefferson Sessions, he was nominated by President George W. Bush for a federal judgeship in the Middle District of Alabama in Montgomery. Fuller was confirmed in November 2002.

A routine state audit of Fuller’s office for the period from October 1999 to April 2001, found that “there were a few incidents of insufficient or incomplete documentation of disbursements” at the office. (A copy of the audit report can be found here.) State auditors recognized that Fuller, as district attorney, had very broad discretion in budget, so they did nothing to challenge these payments.

Fuller’s replacement Gary McAliley, however, 1

[Footnote] 1. Someone with direct knowledge of the situation told me that McAliley was Fuller’s “nemesis.” Whether this was true at the time, it is true that McAliley soon became a thorn in Fuller’s side.

appointed by then-Governor Don Siegelman, started another audit and began to investigate Fuller for salary spiking–the practice of making extraordinary payments to a person who is on the verge of retirement–in this case, presumably, because an Alabama rule for determining state pensions counts an employee’s earnings for the highest three years of the last 10 years of work. The McAliley audit concluded that Fuller allowed his chief investigator Bruce DeVane an extra $70,000 in 2000-–close to twice DeVane’s annual 1999 salary—to “compensate him for working nights and weekends on developing policies and procedures manuals for the district attorney’s office.”

[Image of a photo of Fuller at a 2005 law clerk reception appears in original post.]

The Retirement Systems of Alabama (RSA), which administers pension payments to former state employees, determined that the payments to DeVane were irregular and decided not to take them into account in calculating DeVane’s retirement benefits. DeVane went to court to force their hand. His star witness: Mark Fuller, now a federal judge in Montgomery. Fuller testified that he could legally pay DeVane any salary he wished and expressed the view that the state was bound to support his decision.

The following editorial, in the RSA’s newsletter Advisor in September 2003, described the case as the RSA saw it:

In December of last year, Judge Fuller appeared before the ERS Board wanting to “spike the retirement benefit” for a former employee, Mr. Bruce DeVane. When Judge Fuller was District Attorney for Pike County, he had given Mr. DeVane an 89% pay increase from $80,301 to $152,014 for one year only. If this additional payment were considered regular salary, his retirement income would have been increased by $1,000 per month or $330,000 over his expected lifetime. The Board rightfully denied the benefit spike. The Montgomery Advertiser editorial of December 5, 2002, congratulated the Board in standing tall to prevent a “ . . . back loading of salaries to boost pensions . . . .”

On February 22, 2006, the Enterprise Ledger summarized the case as follows: 2

[Footnote] 2. Kim Lewis, “Salary ‘Spiking’ Case,” Enterprise Ledger, Feb. 22, 2006. Reproduced in the Retirement Systems of Alabama Advisor, Vol. 31 No. 9, March 2006. [End Footnote.]

A former investigator for Coffee and Pike counties has not given up claims that the state owes him an additional $14,000 a year in retirement. Even though a Montgomery County judge dismissed Bruce DeVane’s case against the Retirement Systems of Alabama, DeVane’s attorney is hopeful the Alabama Court of Civil Appeals will reverse the judge’s decision.

In a civil lawsuit that took nearly two years to settle, Judge Eugene Reese, upheld a decision by RSA to spare Alabama taxpayers and deny DeVane’s claims to what RSA refers to as “extraordinary compensation.” During the January 2004 bench trial, DeVane’s former boss, U.S. District Judge Mark Fuller, who was district attorney for Coffee and Pike counties at that time, testified on behalf of DeVane. As DeVane’s boss, Fuller claims he could legally pay DeVane any salary he deemed suitable . . . .

Indeed, RSA lawyers had argued successfully that the jump in DeVane’s salary constituted an “extraordinary” circumstance that did not merit attention in calculating DeVane’s overall retirement pay. D.A. Gary McAliley, who did not return calls requesting comment, testified that the payments were, as a matter of operating procedure within his office, extraordinary. The state court sided with the RSA and McAiley, rejecting the views put forth by Fuller.

The head of the RSA is David G. Bronner—a highly regarded figure in Alabama’s state administration who oversees billions in pension funds. Bronner did not respond to my requests for comment, but he did publish a column on the matter, entitled “Sarcasm: Justice in Bama,” in the August 2007 Advisor. In the piece, he draws a connection between the DeVane case and the fact that Fuller later refused to grant the RSA the ability sue Enron in Alabama state court. He wrote:

I do not like U.S. District Judge Fuller nor does he like me. The RSA had to go through the entire state court system to prevent Judge Fuller’s buddy from ripping off the RSA. Shortly thereafter, Judge Fuller tried to sandbag the RSA by preventing our claim (by doing nothing) against the ultimate crook–Enron! Fortunately, the RSA prevailed on both issues.

In 2002, in the wake of the audit, Fuller simply said that the criticism of him was “politically motivated.” See also New District Attorney Named, December 23, 2002

But think about that for a moment. Fuller, an Alabama Republican stalwart, leaves for the federal bench—then finds his work as District Attorney under investigation by his replacement Gary McAliley. Fuller’s federal position was secure but his reputation was bruised, and he responded to his critics by insisting he left the D.A.’s office in “sound financial condition.” But he also let it be known that he felt that he was under political attack—by a recent Siegelman appointee. Given that, ask yourself: why would Fuller, a man with very good reason to have a grudge against Siegelman’s entire operation, not recuse himself from judging Siegelman?

To me, it looks like there was a score to settle.

Judge Fuller: A Siegelman Grudge Match? by Scott Horton, August 2, 2007.

Indeed it does. Judge Fuller’s personal animosity is further described by reporter Laura McGann at TPMMuckraker:

Dana Jill Simpson wasn’t just worried about Rove’s involvement in Gov. Don Siegelman’s (D-AL) case. She also testified that she heard about a behind-the-scenes arrangement to ensure which judge would get the case — a judge sure to “hang” Siegelman.

Simpson said that Gov. Bob Riley’s (R) son, Rob Riley, told her in a 2005 conversation — one where Riley also said that Rove was pushing to have the Justice Department investigate Siegelman — that Judge Mark Fuller would get the case because Fuller, an active Republican, had a beef with Siegelman over an audit.

We’ve posted the portion of the interview where Simpson discusses Fuller here.

Q And did he talk to you about Mark Fuller’s politics or political work?

[Simpson] He did.

Q What did you talk about in that regard?

[Simpson] I asked him — he made a statement that Fuller would hang Don Siegelman. And I asked him how he knew that, if he got him in his court. And he said that Fuller was — had been on the Executive Republican Committee at Alabama — in Alabama before he been a judge and he also told me about a backlogging case, which is what you call the salary spike. He called it the “backlogging.”

Q And did [Riley] say any more about what Don Siegelman had to do with those audits that put Mark Fuller out?

[Simpson] He said that Don Siegelman had caused Fuller to get audited. That’s what Fuller thought. He hated him for that.

Republican Lawyer Interview with House Judiciary Panel Released by Laura McGann, October 10, 2007.

Mr. Horton describes additional acts of misconduct by Judge Fuller in his handling of the Siegelman matter:

When the jury retired, half of the members favored acquittal, and the other half, who according to subsequent statements felt they were doing what Judge Fuller wanted them to do, supported conviction. The jury initially deadlocked, sending the judge a note stating that they could not resolve the case. The judge responded by suggesting that he would be prepared to hold them indefinitely, including over the upcoming holiday. An anonymous source supplied defense counsel with evidence that some jurors were engaged in inappropriate conduct, among other things reading press accounts of the case and discussing how to pressure other jurors into a conviction with outside evidence.

Two emails in particular, which I was able to obtain from pleadings filed with the court, indicate that outside materials were being downloaded from the Internet and used by these jurors in an effort to pressure their wavering peers:

Exhibit 23:
“….judge really helping w/jurors…
still having difficulties with #30
…any ideas???
keep pushing on ur side
did not understand ur thoughts on statute
but received links.
[first name of Juror B]

Exhibit 24:
“I can’t see anything we miss’d. u?
articles usent outstanding! gov & pastor up s—t creek.
good thing no one likes them anyway. all public officials
r scum; especially this 1. pastor
is reall a piece of work
…they missed before, but we won’t
…also, keepworking on 30…
will update u on other meeting.
[first name of Juror B]

Normally such evidence would result in dismissal of the jury and an order directing a new trial, but not here. Fuller refused to subpoena the email records in question, to question the jurors about the allegations of improper conduct, or to allow counsel to do the same. When the defendants sought to notify the Internet service providers so that the records could be preserved, the motion was summarily denied. Then Fuller, acting to protect the “sanctity of the jury,” adjourned the case for one year before sentencing—long enough for most Internet service providers to automatically dispose of emails maintained on their servers.

Judge Fuller and the Trial of Don Siegelman by Scott Horton, August 3, 2007.

Mr. Horton also reports on a motion filed by Don Siegelman’s attorneys to recuse Judge Fuller from hearing the case due to his conflicts on interest:

The recusal motion rested upon details about Fuller’s personal business interests. On February 22, 2007, defense attorneys obtained information that Judge Fuller held a controlling 43.75% interest in government contractor Doss Aviation, Inc. After investigating these claims for over a month, the attorneys filed a motion for Fuller’s recusal on April 18, 2007. The motion stated that Fuller’s total stake in Doss Aviation was worth between $1-5 million, and that Fuller’s income from his stock for 2004 was between $100,001 and $1 million dollars.

In other words, Judge Fuller likely made more from his business income, derived from U.S. Government contracts, than as a judge. Fuller is shown on one filing as President of the principal business, Doss Aviation, and his address is shown as One Church Street, Montgomery, Alabama, the address of the Frank M. Johnson Federal Courthouse, in which his chambers are located.

[Image in original not reprinted here.]

Doss Aviation, Inc. (motto: “Total Quality Service Isn’t Expensive, It’s Priceless”) and its subsidiary, Aureus International, hold contracts with a number of government agencies. Quoting from defense counsel’s motion for recusal (emphasis in the original):

Doss Aviation, Inc. has been awarded numerous federal military contracts from the United States government worth over $258,000,000, including but not limited to: An , August 2002 contract with the Air Force for $30,474,875 for Helicopter Maintenance, a November 2003 contract with the Navy for $5,190,960 for aircraft refueling, a February 2006 contract with the Air Force for over $178,000,000 for training pilots and navigators, and a March 2006 contract with the Air Force for $4,990,541.28 for training at the United States Air Force Academy. The February 2006 contract with the Air Force for over $178,000,000 is for 10 ½ years, but is renewable from year to year . . .

An Enterprise Ledger article dated April 3, 2005, states that “FBI agents, military and civilian pilots and medical professionals all over the world wear (Aureus International) products which are cut, sewn, inspected, bagged and shipped from its home in Enterprise.”

Doss Aviation and its subsidiaries also held contracts with the FBI. This is problematic when one considers that FBI agents were present at Siegelman’s trial, and that Fuller took the extraordinary step of inviting them to sit at counsel’s table throughout trial. Moreover, while the case was pending, Doss Aviation received a $178 million contract from the federal government.

The Public Integrity Section of the Department of Justice intervened, saying almost nothing about the merits of the motion, but attacking the professional integrity and motives of its adversaries. Here’s an excerpt from the government’s response:

[section title] II. The Petition is the Latest Implementation of Defendant Scrushy’s Bad Faith Strategy to Attack the Integrity of the Judicial Process

As discussed above, the United States submits that the defendant’s Petition is a meritless attack on the District Judge who presided over his conviction by a jury. In light of federal courts’ warnings, cited above, to avoid bad faith manipulations and forum-shopping, the United States notes the following indicators of defendant’s bad faith throughout these proceedings.

Even a quick review and judicial notice of the media accounts surrounding this litigation makes evident that the Petition is just another part of an ongoing and considered strategy of attacking every aspect of the judicial process . . . Immediately after the trial, counsel for defendants Siegelman and Scrushy falsely attacked the conduct of the jury . . .

This, of course, fails to address the legal merits of the motion, merely beating up on opposing counsel.

Judge Fuller denied the motion for recusal. His decision raises three issues:

First, Fuller suggests that he is merely a shareholder in an enterprise. In fact, Fuller’s 43.75% interest in a company with a handful of shareholders makes him the controlling shareholder in a tightly held business.

Second, Fuller derides as a “rather fanciful theory” that he would be influenced by the fact that his business interests derive almost entirely from Government contracts, including from the litigant before the court. It seems that Fuller would have us believe that the process of issuing these contracts is divorced from the political world in Washington. That’s absurd: an examination of press statements surrounding contracts awarded to Doss Aviation shows that Fuller’s political mentor, Representative Terry Everett, is regularly cited in connection with the contract awards. Moreover, the entire process of Department of Defense contract awards is now notoriously politicized through “earmarking” and similar processes that effectively allow legislators to steer lucrative contracts into the hands of their political friends. 1

[Footnote] 1. Case in point: immediately after Fuller’s sentencing of Don Siegelman, Siegelman’s Republican successor Bob Riley disappointed his G.O.P. supporters in Cullman County by canceling his appearance at a dinner there and making a sudden and unexpected trip to Washington. Riley stated that he was going to meet with officials at the Department of the Air Force with respect to an important new contract for Alabama—but Riley also met with Senator Jefferson Sessions and two White House aides. He may have missed dinner in Alabama, but that doesn’t mean he missed out on pork.

Third, Fuller states that he “made several rulings in favor” of the defense. I looked through the record, attempting to find the rulings to which Fuller is alluding, and I can’t find them. It is true that Fuller endorsed rulings that were made by the assigned magistrate-judge on some points, but a review of the record will show that Fuller was relentless in his support for the prosecution and his rejection of defense claims.

At the Edge of Judicial Ethics
The recusal motion points to the difficulties of a federal judge continuing to hold active business interests with entities that litigate before them. Usually, judges divest themselves of such interests and place their holdings in a blind trust. But the evidence offered here raises serious question as to the amount of distance Fuller has put between himself and the business interests that provide the bulk of his income. And in this case there has been at least one clear-cut breach. “Fuller’s designation of his judicial chambers as his address in connection with corporate registrations,” said Nan Aron of the Washington-based judicial oversight organization Alliance for Justice, “clearly runs afoul of the rules, as does his retention of any office, including as agent for service of process.”

Two more cases show a curious attitude towards recusal. First, notwithstanding his former membership in the Executive Committee of the Alabama Republican Party, Fuller participated in the resolution of a highly contentious litigation involving interests of the Executive Committee in a case entitled Gustafson v. Johns decided in May 2006.

Second, there is a case now pending in the Middle District that was initially assigned to Fuller, involving a government contract for the procurement and modification of two Russian helicopters. In the middle of the case sits Maverick Aviation, Inc., of Enterprise, Alabama—the same town from which Fuller hails and where his business operations, which would appear to be similar in scope to those of Maverick Aviation, are sited. From the facts described in several accounts, the company would appear to be a direct competitor with Doss Aviation. Fuller, however, handled this case for several months before his recusal was sought and obtained. The recusal order has been placed under seal, 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 coverup, and there is no way to find out with the seal in place. 2

[Footnote] 2. Sean Reilly, “Bribery Case Involves Russian Copters, Classified Info,” Mobile Press Register, Mar. 7, 2007, p. 01A.

A judge has the responsibility to raise conflict issues on his own initiative—to disclose them to the parties appearing before him, and, when appropriate, to drop out of a case. Judge Fuller, on the other hand, as a committed senior Republican and part-owner of a large business that survives on government contracts, has presided over cases that relate to his personal interests. And that raises questions about the kind of justice he dispensed in the Siegelman case.

The Pork Barrel World of Judge Mark Fuller by Scott Horton, August 6, 2007.

Mr. Horton discussed whether Judge Fuller’s involvement in the Siegelman case was proper with legal ethicist Professor David Luban, the author of the author of Legal Ethics and Human Dignity:

1. Judge Fuller is a Republican, and before coming to the bench he worked on a number of Republican campaigns. He served as a member of the Alabama Republican Executive Committee at a time when Don Siegelman was a Democratic state office holder. Was it proper for Fuller to sit as a judge in the Siegelman prosecution?

There’s a well-accepted legal standard for when a judge should disqualify himself from a case: the judge should bow out when his impartiality can reasonably be questioned. That’s the standard in both the judicial code of ethics and in federal law. The point is to maintain confidence in the fairness and integrity of the legal system. Keeping that in mind, the bare fact that Judge Fuller is a Republican clearly isn’t enough to raise questions. Most judges belong to one party or the other, and a lot got their job on the bench because they were active party members. We expect that they can put mere party sympathy aside when they try cases. But on these facts, Judge Fuller was a lot more than just an active party member. He was a electoral strategist, an executive committee member, and an anti-Siegelman campaigner. How can a reasonable person fail to have doubts about his impartiality? If you’ve spent years organizing the “Beat the Yankees” Club, you should not be umpiring a Yankees game–even if you think you can call the game honestly.

2. In addition to his political engagement, a Siegelman appointee questioned some extraordinary payments Fuller made while he was a district attorney. There was a litigation in which Fuller testified, and the court ruled against him and for the state retirement agency. Fuller was quoted as stating that this was “politically motivated.” Does this raise any questions?

If Judge Fuller complained that it was “politically motivated,” it sounds like he might be blaming Siegelman for it. Without knowing the context it’s hard to tell whether the judge was complaining only about the appointee, or the governor as well. If the latter, it means that the judge had expressed a grudge against Siegelman and obviously should not be trying his case.

3. Judge Fuller appears to derive most of his income from a closely-held business in which he remains the controlling shareholder. The business is almost entirely involved with government contracts, with the Department of Defense and Department of Justice as contractors. What is your reaction when you look at the recusal motion, in which this was set out in some detail, the Justice Department’s response, and Judge Fuller’s ruling?

Generally, the standards for recusal motions are tough, to discourage parties from judge-shopping. I started reading these papers with that viewpoint—namely that the defendant had an almost impossible case to make. But the more I read the papers, the more I was persuaded that this actually was one of those rare cases where the burden was met. Remember: the legal standard is whether you can reasonably question the judge’s impartiality. If so, the law requires the judge to disqualify himself. This is not a run-of-the-mill criminal case where a judge’s commercial side-dealings with the government would not raise a question about pro-government bias. This one is a politically charged case involving a former governor in which political leaders in Washington, D.C., who ultimately exercise tremendous control over the process of military procurement contracts, are likely to take great interest. Given the amount of money Judge Fuller’s company gets from government contracts, any reasonable person would question how impartial he could be. He should not have taken this case, and with a recusal motion made, he had no option but to drop out.

What amazes me about these facts is that they combine past political activism against the governor, a possible grudge against the governor, and the judge’s company’s financial dependence on the government’s good graces. If they’re right (I don’t have any independent knowledge of that), any one by itself would raise reasonable questions about the judge’s ability to be impartial. Taken together, we have a perfect storm. Under these circumstances, impartiality would take superhuman self-control, and we don’t expect judges to be superhuman. The recusal standard is designed so that we don’t have to expect it.

4. You read the Justice Department’s papers, which were filed both by the U.S. Attorney’s office in Montgomery and by the Public Integrity Section at the Department of Justice in Washington, D.C.

I was troubled by the papers filed by the Department of Justice. Half the argument is an ad hominem attack on their adversary’s attorneys for daring to question the government’s fairness. Without offering any evidence, it accuses them of bad faith, and it’s loaded with insulting adjectives. The motion makes it look like the government is blowing smoke to deflect attention away from the real issue.

But rhetorical overkill isn’t the main problem. The most troubling problem is that the Justice Department’s Professional Integrity Section joined this response. That was a real lapse of professional judgment. PIN (as it’s called) is in charge of policing public officials. That includes judges as well as elected officials. Under some circumstances, PIN could be called on to make an independent after-the-fact assessment of Judge Fuller’s conduct. By signing onto the Justice Department’s submission at this point, before there’s been a hearing on the recusal motion, the Public Integrity Section makes it virtually impossible for it to do its oversight job later, because it’s already staked out a position on the case before hearing all sides of the argument.

An Interview with Legal Ethicist David Luban Regarding Judge Mark Fuller by Scott Horton, August 7, 2007.

Mr. Horton details additional improper conduct of Judge Fuller:

Back in October 2002, Brown filed a FOIA request, Brown v. Ashcroft, to compel the Justice Department to release documents relating to the case. The case was bounced down to Montgomery and assigned to Mark Everett Fuller. Shortly after the suit was filed, Justice responded, releasing over 1,000 documents, and then seeking summary judgment on the grounds that the relief that Brown was seeking had been granted.

Two years later, Fuller disposed of this case acting sua sponte. He struck the names of Alice Martin and John Ashcroft from the caption and then dismissed the case for “failure to state a claim,” concluding that Brown’s letters of request had been too vague.

Fuller’s conduct is bizarre. There was nothing vague about the letters, and indeed, the Justice Department found them in order and processed the request. It appears to me that Fuller was spinning, trying to clean up the record in a way that would eliminate Alice Martin’s name from public visibility. He had become a far more engaged defender of the Gonzales Justice Department than the department was of its own interests. And that’s also the posture he adopted at the Siegelman trial. Is this the way an impartial federal judge handles a matter?

The Alice Martin Perjury Inquiry by Scott Horton, September 8, 2007.

And the allegations of unethical – as well as criminal – conduct by Judge Fuller are not limited to the Siegelman case. As reported by Mr. Horton:

I have received a copy of an affidavit (8.7Mb PDF) filed by a Missouri attorney in 2003 which details a number of charges of unethical and criminal conduct against Judge Mark Fuller. The attorney sought Fuller’s removal from a high-profile litigation which related to a prominent Republican who was close to both the current President Bush and his father.

The attorney, Paul Benton Weeks, had been involved as counsel for plaintiffs in a civil action called Murray v. Scott & Sevier, which had originally been filed in Kansas and was later transferred to Montgomery and assigned to Judge Fuller. Weeks, reached by telephone this morning, advised me that he did a routine background check to discover what kind of judge he was up before. “I was astonished by what I found,” Weeks said. Immediately after the papers were filed, Weeks said that Fuller was removed as the judge handling the case.

In the affidavit, Weeks accuses Fuller of engaging in criminal conduct both before and after he came on to the bench. The charges include perjury, criminal conspiracy, a criminal attempt to defraud the Retirement System of Alabama, misuse of office as a District Attorney, and an obstruction of his background check by the FBI in connection with the review of his appointment by President Bush to the bench. (I faxed a copy of the affidavit to Fuller’s office and also left a message asking for comment, but received no reply; if Fuller does reply I’ll update this post.)

Weeks’s allegations were transmitted to Noel Hillman, the head of the Public Integrity Section at the Department of Justice, among other recipients. Hillman’s office has responsibility to conduct investigations into allegations concerning wrongdoing by federal judges.

This means that at the time that Fuller was presiding over the prosecution of former Alabama Governor Don E. Siegelman, a prosecution brought by Noel Hillman’s Public Integrity Section, he was or should have been the subject of an investigation by the Public Integrity Section. [Italics in original] * * *

Weeks’s allegations are focused on Fuller’s conduct in connection with “salary spiking” involving two of his employees in the District Attorney’s office. Fuller’s testimony, which Weeks says was contradictory and which changed materially in the course of the matter, was disbelieved both by the RSA and by an Alabama court handling the matter. Weeks calls Fuller’s statements under oath perjured. * * *

Weeks’s affidavit reflects interviews with Fuller’s successor in the district attorney’s office and with senior officials at the RSA, who confirm the allegations against Fuller. “Judge McAliley then said that he had met with RSA officials and that every member on the RSA board believed Mark Fuller had lied and that Fuller had lied under oath.” [Italics in original.]

Weeks notes that after the affidavit was transmitted to the Justice Department, no individual from Noel Hillman’s group ever contacted him to follow up on any of the allegations or to request any of the documentation that was cited in the affidavit.

* * *

2003 Affidavit Raises More Serious Questions About Siegelman Judge, by Scott Horton, October 16, 2007.

Rules Violated:

  1. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  2. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  3. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  4. RULE 8.4 MISCONDUCT

Text and comments of the Alabama Rules of Professional Conduct violated by Mr. Fuller

For the Bush Administration attorney, the truth still waits

In her article appearing in the February 2008 edition of the ABA Journal, Eileen Libby addresses the issue of When the Truth Can Wait. It should come as no surprise that the examples and case law that Ms. Libby provides and the conclusions she draws do not come to the aid of former Attorney General Alberto Gonzales, Kyle D. Sampson or many of the other Bush Administration attorneys that lie to Congress.

In discussing a case in which an attorney misrepresented that he was ‘either a chiropractor or an M.D. interested in working for the company,’ Ms. Libby writes (emphasis mine):

But the lawyer—Daniel J. Gatti, a prominent per­sonal injury lawyer in Salem and founding partner of Gatti, Gatti, Maier, Sayer, Thayer & Associates—was slapped with a disciplinary complaint. The grounds were that his phone calls violated various provisions of the Oregon Code of Professional Responsibility prohibiting lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and from knowingly making false statements of law or fact while representing clients. After a disciplinary panel of the Oregon State Bar ruled that Gatti had violated the ethics rules (but that the bar was estopped from prosecuting him), the case went to the state supreme court.

Ruling in In re Gatti, 8 P.3d 966 (2000), the Oregon Su­preme Court affirmed that Gatti had violated the state ethics rules and sanctioned him with a public reprimand.

In doing so, the court re­jected arguments from Gatti and a number of amici in the case—primarily government pros­ecutors and consumer ad­vocates—that an exception to the rules should be recognized in conjunction with investigations into some suspected illegal activities.

Instead, the court held that, since the ethics rules are binding on all members of the bar, there was no basis for recognizing an exception that would allow any lawyer—government or private—to engage in dishonesty, fraud, deceit, misrepresentation or false statements.

The ruling caused an uproar. In the aftermath of Gatti, government lawyers began to question whether they could advise police during sting operations. Law­yers for civil rights organizations did not know whether they could use “testers” to ferret out housing and employment discrimination, and intellectual property lawyers were uncertain whether they were prohibited from using undercover investigations to develop information about the theft of client trade secrets.

Eventually, the Oregon Supreme Court amended the state ethics rules to permit a lawyer to advise and super­vise people who engage in deceit or misrepresentation in the conduct of investigations of violations of civil law, criminal law or constitutional rights if the lawyer “in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.”

But it’s unclear whether the amendments resolved the issue. Sylvia E. Stevens, the Oregon State Bar’s general counsel, says she continues to get questions about the permissible use of undercover investigations, especially from intellectual property lawyers. “It’s hard to know what the rule’s boundaries are,” she says.

It’s a dilemma that reaches beyond Oregon. In re Pautler, 47 P.3d 1175 (2002), involved a Colorado district attorney who impersonated a public defender as a ruse to get a murderer-rapist to surrender to police. The Colo­­rado Supreme Court was unswayed. Finding that there is no “imminent public harm exception” to the ethics principle that a lawyer may not engage in deceptive conduct, the court suspended the lawyer for three months.

Noting other instances in which courts and ethics panels have ruled that at least some misrepresentation by an attorney is permissible, such as ‘misrepresentations to uncover evidence of violations of a court order…’ and deception used by housing discrimination testers to defeat racial discrimination , Ms. Libby concludes (emphasis mine):

A key factor appears to be whether a lawyer engaged in some form of deceptive conduct in pursuit of a legitimate public interest, either through a government investigation or a civil legal action.

I don’t think lying to cover your involvement with illegal wiretapping, politicizing the Department of Justice, including the US Attorney firings, the prosecutions of Georgia Thompson and Don Siegelman, etc. If you’ve read this far, you already know the story.

Anyone can file a grievance against Alberto Gonzales and Kyle D. Sampson (no matter the state in which you reside).

Eileen Libby is associate ethics counsel for the ABA Center for Professional Responsibility. I’m an irked attorney.

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It’s not paranoia if they ARE out to get you

The Washington Post’s Dan Eggen reported yesterday that

A federal grand jury in Alexandria has issued a subpoena seeking information about the confidential sources of a newspaper journalist who wrote in a 2006 book about alleged CIA efforts to infiltrate Iran’s nuclear program.

The Jan. 24 subpoena ordered the reporter, James Risen of the New York Times, to appear before the grand jury next Thursday, said David N. Kelley, Risen’s attorney. Kelley, a former U.S. attorney in New York, said Risen plans to resist the order.

Glenn Greenwald then correctly described Attorney General Michael Mukasey’s involvement and the dangers presented by this tactic:

Although there are still facts missing — such as whether this Subpoena was actually approved by Mukasey rather than Gonzales — it’s hard to avoid the conclusion that the Grand Jury Subpoena was done at least with Mukasey’s assent. It seems rather clearly to signify the intent of his Justice Department to more aggressively pursue reporters who disclose information embarrassing to the President.

It’s hard to overstate how threatening this behavior is. The Bush administration has erected an unprecedented wall of secrecy around everything it does. Beyond illegal spying, if one looks at the instances where we learned of lawbreaking and other forms of lawless radicalism — CIA black sites, rendition programs, torture, Abu Ghraib, pre-war distortion of intelligence, destruction of CIA torture videos — it is, in every case, the by-product of two forces: government whistleblowers and reporters willing to expose it.

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress. Mukasey has quickly demonstrated that he has no interest in investigating and pursuing lawbreaking by high government officials, but now, he (or at least the DOJ he leads) seems to be demonstrating something even worse: a burgeoning interest in investigating and pursuing those who expose such governmental lawbreaking and turning those whistleblowers and investigative journalists into criminals.

This is yet another example of this administration improperly using the force of law, i.e., investigation, prosecution and jailing of its critics, to cover its track. Risen is on his way to being Siegelmanned, which is exactly what I’m trying to avoid by remaining anonymous. Especially since I don’t have the resources of Simon & Schuster available to me like Risen does.

Greenwald added this in an update:

An emailer sums up the situation nicely:

So, let me see if I get this straight. The Congress issues subpoenas to former [and current] Bush officials to testify about administration conduct. Said officials ignore the subpoenas. Nothing happens.

Administration, via grand jury, issues subpoena, Risen is threatened with jail.

What’s wrong with this picture?

That’s rather accurate.

This is one of the few points from Greenwald with which I disagree. Anyone, whether a resident of Texas or not, can file a grievance against Harriet E. Miers. Furthermore, if you are an attorney licensed by the Texas Bar Association, you have an ethical obligation to report misconduct. Rule 8.03 Reporting Professional Misconduct, Texas Disciplinary Rules of Professional Conduct (large .pdf file).

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