Patrick J. Rogers

Crossposted at Oxdown Gazette.

Patrick J. Rogers is the New Mexico attorney who represents and advises the Republican Party of New Mexico on its voter suppression efforts. I have documented from the public record Mr. Rogers’ conduct that violates the New Mexico Rules of Professional Conduct. Unfortunately, the state bar system requires that a formal complaint be filed to begin a formal investigation, but you don’t need to be a resident of the state or even involved in the matter to file a grievance. Anyone can file one, but a grievance can’t be filed online, so I’ve simplified the process as much as possible. If you agree, you can easily file a grievance against Mr. Rogers with the State Bar of New Mexico in three simple steps:

  1. Print, complete and sign the official Form for Complaint against a Lawyer in New Mexico;
  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.

Personal Information:

  • Name: Patrick J. Rogers, Shareholder, Modrall Sperling
  • PO Box 2168, Albuquerque, NM 87103-2168
  • Telephone: (505) 848-1800
  • Fax: (505) 848-1891

Grievance Information: New Mexico

Introduction

Along with the privilege to practice law, each member of the State Bar of New Mexico, including Patrick J. Rogers, must also comply with the special duties and responsibilities that arise from that privilege. As described in the Preamble to the New Mexico Rules of Professional Conduct:

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

* * *

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.

* * *

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. (Emphasis supplied.)

On October 17, 2008, Melanie Dabovich of the Associated Press reported that the “Republican Party of New Mexico alleges 28 people voted fraudulently in one Albuquerque state House district in the June Democratic primary.” After releasing the registration cards for “10 of the suspect voters[,]” Mr. Rogers, “an attorney who advises the state GOP, says the party plans to turn the suspect registration cards over to [state Attorney General Gary] King’s and [District Attorney Kari] Brandenburg’s offices.” ACORN investigated these claims and, as a result, “confirmed with the Bernalillo County Clerk that the voters in question were all legitimate” and that the voters identified by Mr. Rogers and his client were not engaged in the criminal conduct of ‘voter fraud’ but were, to the contrary, victims of false allegations of voting fraud.

Although his client, the Republican Party of New Mexico, officially distanced itself from making further allegations of voter fraud, Mr. Rogers continued to press the matter. Under the guise of conducting additional investigation of the baseless voter fraud allegations, Mr. Rogers retained a private investigator to conduct further ‘review’ of the voter fraud charges and supervised this investigator’s review of the voters he and his client had previously identified, even though each voter had been cleared of any wrongdoing.

Considering this conduct and the circumstances surrounding his conduct, as detailed more specifically below, Patrick J. Rogers has violated the following New Mexico Rules of Professional Conduct:

16-102. Scope of representation.
16-116. Declining or terminating representation.
16-401. Truthfulness in statements to others.
16-403. Dealing with unrepresented person.
16-404. Respect for rights of third persons.
16-503. Responsibilities regarding nonlawyer assistants.
16-802. Judicial and legal officials.
16-804. Misconduct.

Allegation: Patrick J. Rogers engaged in conduct designed to intimidate and harass New Mexican voters by retaining and supervising a private investigator to ‘investigate’ baseless allegations of voter fraud in violation of federal laws that prohibit voter intimidation.

On October 17, 2008, Melanie Dabovich of the Associated Press reported the activities of Patrick J. Rogers and his client, the Republican Party of New Mexico:

ALBUQUERQUE — The Republican Party of New Mexico alleges 28 people voted fraudulently in one Albuquerque state House district in the June Democratic primary.

Party representatives said at a news conference Thursday they found the suspect voters in a review of 92 newly registered voters in House District 13.

“We really have a bombshell — evidence of voter fraud in the 2008 primary in Albuquerque,” said State Rep. Justine Fox-Young, an Albuquerque Republican. “We are presenting undeniable proof that there was voter fraud in the June election.”

* * *

The Republicans released voter registration cards for 10 of the suspect voters, saying they showed missing or inaccurate Social Security numbers or birth dates.

In some cases, more than one voter was registered using the same Social Security number. In others, people who the Republicans said had no Social Security number on public record were registered.

* * *

Pat Rogers, an attorney who advises the state GOP, says the party plans to turn the suspect registration cards over to King’s and Brandenburg’s offices.

In response, Project Vote properly characterized these allegations as spurious:

ACORN and Project Vote launched back in a news conference call on October 10. “This is the third election cycle in a row where we’ve seen partisan interests take the same issue—which is canvassers trying to defraud ACORN by not doing their work and instead fabricating applications—and trying to exaggerate that and turn it into an argument that there is ‘widespread fraudulent voting’ going on,” said Project Vote executive director Michael Slater. “These allegations have been debunked now in several election cycles, and we’ll find by the end of this election cycle they’ll be debunked as well.”

The next day, October 18, 2008, the Associated Press again reported these baseless allegations:

ALBUQUERQUE —The community activist group ACORN fired back Saturday at New Mexico Republicans and their claims of voter fraud in June’s Democratic primary.

ACORN organizers said that since the vote-fraud charges were leveled by GOP leaders on Thursday, they have contacted four or five of the 28 allegedly “suspect” Albuquerque voters.

They said those voters confirmed that the allegations, including problems on voter registration forms like inaccurate Social Security numbers or birth dates, were simply wrong.

But State Republican Party representatives said only two voters out of 16 named in their investigation have come forward to deny the charges, and they stand by their assertion that voter fraud remains a problem in New Mexico. “The bottom line is that two out of 16 is not a good batting average,” said Pat Rogers, an attorney who advises the GOP.

* * *

Rogers said a private investigator hired by the state Republican Party found [Brittany] Rivera and others like her have Social Security numbers on their voter registration forms that are being used by other people. They may be legitimate voters and could be victims of identity theft.

* * *

However, the voters accused of the crime of voter fraud by Mr. Rogers and his client, the Republican Party of New Mexico, were, in fact, innocent of these charges. With the assistance of ACORN, these voters were able to prove their innocence of the charge of voter fraud. After “ACORN confirmed with the Bernalillo County Clerk that the voters in question were all legitimate,” the New Mexico Republican Party backed off their allegations of voter fraud. In spite of the fact that the voters identified by Mr. Rogers and his client were absolutely cleared of any impropriety by the Bernalillo County Clerk, Mr. Rogers and his private investigator continued to press the matter. Under the apparent guise of conducting additional investigation of the voter fraud allegations, and even though the named voters were cleared of any wrongdoing, Mr. Rogers continued to retain and supervise the services of Mr. Alfredo Romero to conduct additional ‘review’ of the voter fraud charges:

Among those who said she was blindsided and angered by the Republicans’ allegations was 18-year-old Brittany Rivera. At a news conference, she said she was at first scared to learn she’d been labeled as a “suspect” voter and her name and personal information had been forwarded to law enforcement. “You guys are trying to scare us new voters,” Rivera said of the GOP. “I think it’s wrong.”

According to Rivera and her mother, she accurately filled in and mailed her registration form on time after her mother picked up the paperwork for her at the nursing home where she works.

She said being targeted as a bogus voter is “crazy,” and she is now “more determined” to vote in the future. She said she planned to vote Saturday, when early voting began in New Mexico.

Group slams GOP ‘hacks’ over voting charges, Associated Press, October 18, 2008.

Several days later, on October 23, 2008, Gwyneth Doland reported in the New Mexico Independent that Mr. Rogers suddenly refused to either confirm or deny that he had hired an investigator in this matter:

ALBUQUERQUE – Republican Party attorney Pat Rogers refused to say Thursday if a private detective who visited the addresses of two of the 10 Albuquerque voters cited at a news conference last week about voter fraud was working for the GOP.

* * *

When asked by the New Mexico Independent if the private investigator worked for Rogers’ law firm, Rogers said, “I have no interest in responding to ACORN’s accusation.”

Reminded that the accusations came from the voters themselves, Rogers said, “You need not to accept what ACORN says.”

When asked the question again, Rogers said, ”I am not responding to any questions. I am not being quoted. This is off the record.”

However, the New Mexico Independent’s Gwyneth Doland confirmed that Mr. Rogers’ investigator had indeed continued to visit voters, including [name redacted] and Emily Garcia:

Guadalupe Bojorquez said a man who identified himself as a private investigator by the name of Al Romero visited the home of her 67-year-old mother on Wednesday.

“She calls me and she’s panicked because there is this man outside and he’s telling her he’s an investigator and he wants to come in to the house,” Bojorquez told NMI. She said her mother then put the man on the phone.

“I asked him, but he wouldn’t tell me who he worked for. He just said he wanted to verify that she was a legitimate voter and he wanted to see her documents. I told him ‘No,’ and we argued for a little bit.

“He said ‘You have to realize we’re just trying to protect the people, we just want to make sure that she’s a legitimate voter and if she votes and she’s not supposed to, then it’s illegal.’

“He was pressuring me so much that I told him that she’s not going to do anything until she speaks to her attorney.”

Bojorquez said she asked the man several times whom he worked for. Eventually, she said, “He told me he worked for Pat Rogers.”

Rogers is the Republican attorney who also made claims of voter fraud in 2004 and 2006. He was cited in the federal Department of Justice report about the firing of U.S. attorneys as one of the New Mexico GOP activists who complained to the Department of Justice about then-U.S. Attorney David Iglesias.

By law, private investigators are licensed by the state Regulation and Licensing Department. According to the department’s Web site, there is an Alfredo Romero who has a current private investigator license. In addition, three men named Albert or Alberto Romero have current security guard licenses.

Jenais Griego told NMI that she too had been visited by a private investigator on Wednesday. Her grandmother, Emily Garcia, was one of the people whom Republicans described last week as an ineligible voter.

“I asked him if he had a badge and he pulled out a white and blue laminate card with his name on it,” Griego. “It wasn’t even a badge, but it said ‘Al Romero, private investigator.’ He came in and he started asking me about my grandmother and I was trying to tell him that she didn’t live here. He’s like ‘OK, so let me just write some stuff down.’”

Griego said that Romero asked her questions about her grandmother’s voter registration card; her grandmother lives in a trailer down the street, but receives her mail at the house, she said.

“It freaked me out when he got upset, when I did tell him that, regardless of what happens, my grandmother is voting and it’s OK for her to vote.”

“He tried to tell me to tell her to be careful when she’s voting. He was trying to tell me stuff to scare her from voting.”

Bojorquez also said her mother felt wary about the visit.

“My mom is confused because she doesn’t understand why she’s being put through this because she voted. She doesn’t trust anybody anymore,” Bojorquez said, requesting that her mother’s name not be published again.

These visits by Mr. Rogers’ investigator were also confirmed by Zachary Roth at TPMMuckraker:

Minority voters in New Mexico report to TPMMuckraker that a private investigator working with Republican party lawyer Pat Rogers has appeared in person at the homes of their family members, intimidating and confusing them about their right to vote in the general election.

* * *

The visits to minority voters by the P.I. appear to be connected to last week’s effort.

* * *

Guadalupe Bojorquez, who works in law enforcement in Albuquerque, told TPMmuckraker today that her mother, [name redacted], was one of the ten voters whose names were released by the GOP. After this happened, said Bojorquez, her mother had been contacted by the voter registration group ACORN. Bojorquez, with ACORN’s help, confirmed with the county clerk that her mother, who does not speak English, is indeed eligible to vote, and had been when she voted in June.

Nonetheless, Bojorquez said that her mother yesterday received a visit from a man who asked for her personal information, including an ID, in reference to her eligibility to vote. Bojorquez told TPMmuckraker that according to her mother, at one point the man asked what she would do if immigration authorities contacted her.

After Bojorquez’s mother, frightened, refused to let him in the door, the man waited outside her house. Eventually, Bojorquez’s brother arrived at the house, emboldening Bojorquez’s mother to go outside, call Bojorquez, and put her on the phone with the man.

Bojorquez said the man told her he wanted to make sure her mother knew that she shouldn’t be voting, and continued to ask for her mother’s personal information. When Bojorquez said that no information would be handed over unless the man revealed who he was employed by, he said he was a private investigator hired by Pat Rogers. He told Bojorquez his name was Al Romero, and left a number at which Bojorquez could contact him.

Bojorquez added that in fact, her mother has already voted in the general election, by absentee ballot — which she is eligible for because she has trouble walking — so Romero’s efforts on that front were in vain.

Another Albuquerque woman had a similar experience.

Jenais Griego told TPMmuckraker that yesterday, as she arrived home with her kids, a man in a beige Chevy Silverado pulled up, removed a notebook from his pocket, and said he was looking for Emily Garcia. Garcia is Griego’s grandmother — Griego said Garcia, who works as a home care-giver, lists Griego’s address for her mail — and, like [name redacted], was one of the voters named by the GOP last week as having voted fraudulently in June.

Griego said she allowed the man in, and when she asked him for identification, he pulled out a card that gave his name as Al Romero. She said the man had a redacted copy of Garcia’s voter registration form, and asked whether Garcia intended to vote. He said if she intended to do so, she needed to make sure she was properly registered.

As with Bojorquez and [name redacted], Griego said that Garcia had already confirmed after the GOP press conference that she was indeed a valid voter. An ACORN worker had come to her house to explain that the GOP had questioned her registration, and, along with Griego, they had contacted the county clerk to ensure that she could legitimately vote, and had done so in June.

So when Romero asked Griego whether Garcia intended to vote, Griego replied that she did. At that point, said Griego, Romero became “angry” and “upset,” and left abruptly.

Rogers did not return several calls from TPMmuckraker seeking comment. But last week he said that the state party had hired a private investigator in connection with vote fraud*. And asked yesterday by the New Mexico Independent about the confrontations with voters, he replied: “I have no interest in responding to ACORN’s accusation.”

Reached by TPMmuckraker at the phone number he provided to Bojorquez, Romero said he didn’t have time to talk about the matter. He did not respond to repeated follow-up calls.

*This sentence has been corrected from an earlier version.

In response, Project Vote has requested that New Mexico U.S. Attorney Gregory Fouratt begin investigating these allegations of voter intimidation and vote suppression, including the intimidation of Ms. Rivera, Ms. [name redacted], Ms. Garcia and Mr. “Francisco Martinez, 19, who registered to vote for the first time when volunteers came to his high school in May. Mr. Martinez said Monday that he felt like he was being bullied and intimidated out of his rights as an American. ‘This is my first time voting, and it’s important to me to be part of history,’ Mr. Martinez said.” In his October 23, 2008, letter to U.S. Attorney Fouratt requesting the investigation, Project Vote Election Counsel Donald Wine II wrote:

We here at Project Vote, on behalf of several voters of the State of New Mexico write to request an investigation into increased efforts to intimidate voters and suppress minority voters by representatives of the New Mexico Republican Party.

Members of the New Mexico Republican Party called a press conference last week where they named 10 Albuquerque residents as frauds who they allege voted illegally in the New Mexico primaries. ACORN made contact with 8 of the 10 voters on that list distributed by the New Mexico Republican Party. All of the voters identify as Democratic, all are minorities (9 of the 10 are Latino), and most of them are 18 or 19 years old. One of the voters is a new citizen who was naturalized in 2007 and was voting for the first time. ACORN found that all of the voters they contacted are legitimate voters that were eligible to vote and had no problems with their registrations.

Now that the Republicans have found that the people they alleged were frauds were in fact legitimate voters, they have begun to intimidate these voters. Already, 2 of the 10 voters have been visited by a private investigator in an effort to keep these voters silent. Also, the fact that all 10 of the voters that were named on this list were minority voters, 9 of which are Latino, as well as mostly younger voters, indicates a concerted effort to suppress the vote of a particular class of voters.

This form of intimidation and suppression is in direct violation of Section 12 of the Voting Rights Act of 1965, as well as Section 2. We feel that the right of all Americans to vote is of the utmost importance, and if there is credible evidence of voter intimidation and suppression of a particular class of voters, it should be addressed and promptly prosecuted. We request that you conduct an immediate investigation into the attempts by the Republican Party of New Mexico to intimidate minority, first-time voters into not exercising their right to vote. To the extent that your investigation uncovers that any federal laws have also been violated, we ask that your office refer the matter to the proper federal authorities.

In addition to Mr. Wine’s allegations that Mr. Rogers’ and his investigator’s conduct violated federal law, Zachary Roth at TPMMuckraker also reports that Mr. Rogers’ and Mr. Romero’s conduct likely violates federal law:

Four separate experts on voting rights have confirmed to TPMmuckraker that the behavior of a private investigator apparently hired by a New Mexico Republican party lawyer, that we reported this morning, potentially violates federal voting laws.

Gerry Hebert, a former acting head of the voting rights section of the Department of Justice, told TPMmuckraker that the P.I.’s actions appear to violate the criminal section of the federal Voting Rights Act, which makes it a crime to willfully injure, intimidate, or interfere with a person attempting to vote. Hebert added that a separate statute makes it a crime to conspire to intimidate someone in exercising their right to vote — a provision that could apply to GOP lawyer Pat Rogers or others in the state party who may have been involved in the scheme.

“A matter like that ought to be reported to the DOJ immediately,” said Hebert, adding that he planned to do so.

Jon Greenbaum of the Lawyers Committee for Civil Rights agreed, and added that the activities detailed in TPMmuckraker’s report could violate both criminal and civil voting rights statutes. Greenbaum pointed to a civil provision of the Voting Rights Act which says that it violates the law to intimidate, threaten or coerce someone from voting or not voting.

Greenbaum too said he planned to pass on to the Department of Justice the claims made in our report.

Rick Hasen, a professor at Loyola Law School in Los Angeles and a noted expert on election law, also said that the behavior potentially violated the Voting Rights Act or other federal civil-rights statutes.

And Wendy Weiser, a voting-rights expert at the Brennan Center for Justice, further confirmed that take.

An Albuquerque woman told TPMmuckraker yesterday that a man identifying himself as a private investigator hired by Rogers came to her mother’s house Wednesday asking her mother for personal information and warning her not to vote if she wasn’t properly registered. A second woman in the same city provided a similar report to TPMmuckraker. The voters’ names had been publicly released last week by Rogers and others affiliated with the state party, who claimed that 28 mostly Hispanic people had voted fraudulently in June. It was later determined that many of the people whose names had been released were valid voters.

In spite of the evidence to the contrary, Mr. Rogers may claim that he has fulfilled his special responsibility for the quality of justice and may deny that he engaged in improper conduct or harbored improper motives. However, any such claims or denials are not determinative of whether or not he violated the law and the New Mexico Rules of Professional Conduct by using the law’s procedures to harass or intimidate others. Instead, whether he “actually supposed the fact in question to be true” or not, i.e., whether Mr. Rogers actually believes any denial of improper conduct, “may be inferred from circumstances” in which the alleged misconduct occurred. See Terminology, New Mexico Rules of Professional Conduct. Even if Mr. Rogers actually believed his actions were proper, that belief would only be reasonable if “the circumstances are such that the belief is reasonable.” However, because “a lawyer of reasonable prudence and competence would [have] ascertain[ed]” that Mr. Rogers’ conduct was improper, Mr. Rogers should have known he was acting unethically.

Specifically, the circumstances existing nationally quash any inference that Mr. Rogers may believe that his conduct was appropriate:

It’s worth noting, in response to the news that the FBI has launched an investigation into whether ACORN was involved in a nationwide voter-registration fraud scheme, that the launch of the probe comes at a time national Republicans at several different levels have sought to make an issue out of ACORN — in some cases calling for just such an investigation.

Last week, John McCain told a Florida crowd:

“There are serious allegations of voter fraud in the battleground states across America. They must be investigated.” The GOP standard-bearer has continued to sound the alarm over ACORN since then, and brought it up at last night’s debate.

GOP House leader John Boehner last week called in a statement for ACORN to be de-funded — it is currently eligible for federal housing funds — and charged that over the years, ACORN “has committed fraud on our system of elections, making American voters question the fairness and accuracy of the exercise of their most fundamental right under the Constitution.”

Last week the RNC held at least five separate conference calls with reporters to stoke fears of voter fraud connected to ACORN.

And numerous state- and local-level Republicans have also in the last few weeks called publicly for authorities to look into ACORN.

What’s Behind the Feds’ ACORN Probe?, Zachary Roth, TPMMuckraker, October 16, 2008.

Furthermore, the circumstances surrounding Mr. Rogers’ effort to suppress the vote in New Mexico in 2008 are nothing new. To the contrary, they are part of a multi-year, ongoing effort to challenge the voting rights of New Mexicans, as confirmed by Rep. John Conyers in his letter to United States Attorney General Michael Mukasey:

Mr. Rogers, however, appears repeatedly in the report on the U.S. Attorney firings, prepared by the Department’s Office of the Inspector General and Professional Responsibility, which documented his actions making flawed claims of voter fraud and bringing unwarranted pressure to bear on law enforcement officials, including Mr. Iglesias, in 2006.

On October 24, 2008, Zachary Roth at TPMMuckraker reported further on the circumstances surrounding Mr. Rogers’ conduct:

… Rogers’ role in pressing [fired U.S. Attorney David] Iglesias to pursue voter fraud prosecutions was extensive. According to the OIG report on the firings, Rogers set up a lunch meeting with Iglesias, and met with an FBI agent — among many other activities — to push the issue.

Perhaps most damagingly, the report contains a September 2004 email sent to Iglesias and several staffers for New Mexico’s GOP congressional delegation, in which Rogers admitted that he was interested in the issue in large part for its potential to help the GOP:

I believe the [voter] ID issue should be used (now) at all levels – federal, state legislative races and Heather [Wilson]’s race … You are not going to find a better wedge issue … I’ve got to believe the [voter] ID issue would do Heather more good than another ad talking about how much federal taxpayer money she has put into the (state) education system and social security … This is the single best wedge issue, ever in NM. We will not have this opportunity again … Today, we expect to file a new Public Records lawsuit, by 3 Republican legislators, demanding the Bernalillo county clerk locate and produce (before Oct 15) ALL of the registrations signed by the ACORN employee.

But Rogers is no mere local player on the Republican voter fraud team. He was on the board of the American Center for Voting Rights (ACVR), a fake think-tank which was little more than an effort by GOP operatives to offer an intellectual gloss to politically motivated claims of voter fraud — and which abruptly closed down operations in 2007.

ACVR was run by Mark “Thor” Hearne, who served as national election counsel to President Bush’s 2004 reelection campaign. Jim Dyke — who was the communications director of the Republican National Committee during the 2004 election, and went on to work for both the White House and for Vice President Cheney — was also involved.

Writing in Slate last year, election-law expert Rick Hasen described ACVR’s modus operandi:

Consisting of little more than a post-office box and some staffers who wrote reports and gave helpful quotes about the pervasive problems of voter fraud to the press, the group identified Democratic cities as hot spots for voter fraud, then pushed the line that “election integrity” required making it harder for people to vote. The group issued reports (PDF) on areas in the country of special concern, areas that coincidentally tended to be presidential battleground states. In many of these places, it now appears the White House was pressuring U.S. attorneys to bring more voter-fraud prosecutions.

Here’s Rogers, on behalf of ACVR, telling CNN back in 2004 about the need for “safeguards to make sure that citizens only are voting.”

And now this is the guy who’s involved in pushing voter fraud claims in connection with an investigation in which the FBI is already involved.

Clearly, the background and circumstances in this matter, however, do not permit the inference that Mr. Rogers believed his conduct was appropriate. Accordingly, Mr. Rogers has engaged in conduct that violates the following New Mexico Rules of Professional Conduct:

16-102. Scope of representation.

* * *

D. Course of conduct. A lawyer shall not engage, or counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or which misleads the court, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

* * *

16-116. Declining or terminating representation.

A. Mandatory disqualification. Except as stated in Paragraph C, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

* * *

16-401. Truthfulness in statements to others.

In the course of representing a client a lawyer shall not knowingly:

A. make a false statement of material fact or law to a third person; or

B. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 16-106.

16-403. Dealing with unrepresented person.

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

16-404. Respect for rights of third persons.

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

16-503. Responsibilities regarding nonlawyer assistants.

With respect to a nonlawyer employed or retained by or associated with a lawyer:

A. a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

B. a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

C. a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved ; or

* * *

16-804. Misconduct.

It is professional misconduct for a lawyer to:

A. violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

B. commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

C. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

D. engage in conduct that is prejudicial to the administration of justice;

* * *

H. engage in any conduct that adversely reflects on his fitness to practice law.

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Full Text of the New Mexico Rules of Professional Conduct violated by Mr. Rogers

It’s not paranoia if they ARE out to get you, No. 6

At No Comment, Scott Horton continues with his stellar reporting on the politicization of, and abuse of power in, the Department of Justice with this July 23, 2008 post of his Six Questions for Former U.S. Attorney David Iglesias, Author of In Justice. Mr. Iglesias. one of the United States Attorneys fired by DoJ on December 7 – Pearl Harbor Day – of 2007, explains, in a nutshell, what happened:

One cannot fully comprehend the recent Justice Department meltdown without understanding the belief in New Mexico, Missouri, and Washington State Republican circles, that the 2000 election and subsequent contests were rife with fraud. It set the stage for what followed during the scandal surrounding the forced resignations in 2006 of United States Attorneys John McKay of Seattle, Todd Graves of Kansas City, and me. We were all criticized by Republican operatives for not filing voter or election fraud cases in our respective districts. Each of us examined the evidence and did not find any provable cases, so no indictments were filed. I remember hearing Republican activists allege that the Democrats stole the election in New Mexico during the 2000 presidential election. I heard that illegal immigrants were voting in large numbers. If true this would be criminal, but prosecutors may not base their cases on rumor and innuendo but on admissible evidence they can prove beyond a reasonable doubt in a court of law. * * *

Voter fraud became the bogeyman of New Mexico politics. And what person was best equipped to prevent this alleged problem from happening again? The United States Attorney. Hence in the summer of 2002 the Executive Office of United States Attorney in Washington emailed all 93 U.S. Attorneys asking us to work with state and local election officials to prevent election fraud. * * * That changed dramatically in 2004, when the local media covered numerous instances of apparent voter fraud. * * *

In response, I set up one of only two election fraud task forces in the country. * * *

I also set up a hotline for citizens to call into the local FBI office. I believed that we would find provable cases of fraud that I could prosecute, and I was determined to find them. * * * After almost two years of investigation, we were unable to come up with a single prosecutable case. I conferred with main Justice and with the local FBI office. It was ultimately my call, and I followed the professional staff in finding that there wasn’t enough evidence to support a prosecution. Main Justice and the FBI did not disagree with my assessment.

But local Republican leaders disagreed. They could not believe that the investigation failed to produce a prosecution. During the 2004-06 time period, Rumaldo Armijo and I received numerous phone calls and emails from former state G.O.P. counsel Patrick Rogers. He exhorted us to file cases. We could only tell him what we would tell any member of the public–that we would file provable cases and even then, we would not file a case just before an election if we felt it could affect the outcome of the election. This was policy of the Justice Department, per career attorney Craig Donsanto, who wrote the election fraud manual that all U.S. attorneys used. Significantly, Rogers never told Armijo or me that he was also an official of a group called the American Center for Voting Rights—a G.O.P. organization alleged to be engaged in voter suppression efforts. I did not find this important fact until after I left the Justice Department. I knew Rogers to be involved in the litigation over the voter I.D. law and knew him to be a fiercely partisan Republican. In 2006, I heard from a friend of mine who was active in the state party that the party was upset with me. At one point he implored me, “can’t you file something?” So I heard the rumbling of the party in the 2005-06 timeframe.

I was aware of the simmering discontent of the local Republicans. Just before the 2006 midterm election that discontent boiled over when I received a highly improper phone call from Congresswoman Heather Wilson in mid-October and another call from Senator Pete Domenici in late October. * * * Both Wilson and Domenici were talking about the same investigation. Wilson had used her opponent’s weak record in pursuing corruption cases as part of her attack strategy. I knew that if I told them I was close to indicting the case that would be used by Wilson in connection with her election campaign. I also knew they had no legitimate need to know when I would be filing the indictments. I was put on the list to be fired on November 7, 2006—Election Day. The timeline alone is damning and it was clear to me that I was placed on the list because I would not rush an indictment of a high-profile Democrat in a way that would benefit Wilson in her campaign. * * *

As Mr. Horton notes in his introduction,

His meteoric career is not simply the stuff of movies–after all, some of David Iglesias’s experiences as a Navy JAG at Guantánamo Bay furnished the material for Aaron Sorkin’s play “A Few Good Men,” later converted into a Hollywood blockbuster. (Italics in original.)

Even a stellar career in the Navy that is ‘the stuff of movies’ followed by six (6) years of public service as a United States Attorney was not sufficient to insulate Mr. Iglesias from the Bush administration. And throughout this whole sordid affair, Mr. Iglesias has maintained his professionalism, demonstrated his strength of character and, as a result, provides a model of conduct to which all attorneys should strive to emulate.

Read the rest of the interview here .

Buy David Iglesias’ book In Justice: Inside the Scandal That Rocked the Bush Administration.

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Alberto Gonzales: Not just unethical, but criminal?

As reported by Jason Leopold at the Online Journal on February 29, 2008, (h/t nonnie9999), Alberto Gonzales not only engaged in unethical conduct, but likely also engaged in conduct that was criminal:

John McKay, the former US attorney for the Western District of Washington who was also fired in late 2006 for reasons that appear to have been motivated by partisan politics, wrote in a lengthy article in the January edition of the Seattle University Law Review [incorrect link in original document] that Iglesias’s firing stands out among the other eight federal prosecutors because it demonstrates “the very real prospect of improper interference with an ongoing criminal investigation involving public corruption and the seeking of political advantage.”

“Violations of the obstruction of justice statute may have occurred and should be investigated,” McKay wrote. “Even as the role of the White House remains shrouded in its claims of executive privilege, 23 certain White House employees appear to have been heavily involved in the dismissal of U.S. Attorney Iglesias. In several e-mails it appears that these officials were reacting directly to the complaints of Senator Pete Domenici (R-NM) and the ongoing investigation into public corruption in New Mexico. For example, Deputy White House Counsel Bill Kelley smugly e-mailed Gonzales’ Chief of Staff Kyle Sampson to report that Domenici’s office was ‘happy as a clam’ on learning of Iglesias’s ouster. Senior Counselor to the President Karl Rove bragged about Iglesias’s dismissal by proclaiming ‘he’s gone’ to the New Mexico Republican Party Chairman, who had previously complained to Rove about Iglesias.”

* * *

This chain of events troubles McKay who wrote in his law review article that former Attorney General Gonzales ultimately approved Iglesias’s termination with the full knowledge that it was based on partisan politics.

Gonzales admitted “he took multiple phone calls from Domenici concerning [Iglesias], urging that he be replaced, and has admitted that [President Bush] spoke with him about the ‘problems’ with Iglesias,” McKay wrote.
”Gonzales has even admitted that one of the reasons that Iglesias was fired was because Senator Domenici had “lost confidence” in Iglesias. “While these allegations are troubling under any analysis, a thorough and independent investigation is necessary to determine whether criminal laws have been violated,” McKay added. “Among the considerations facing the inspector general is whether the actions of former Attorney General Gonzales constituted obstruction of justice by removing Iglesias.”

Don’t hold your breath waiting for justice. No attorney employed by the Michael Mukasey-led Department of Justice will initiate an investigation of and pursue a criminal prosecution against Alberto Gonzales. As Leopold reports, they’re too busy fighting voter fraud:

Recently, the OPR contacted Iglesias’s former executive assistant, Rumaldo Armijo, to interview him about whether he was pressured by Pat Rogers, a Republican attorney in Albuquerque, and Mickey Barnett, a Republican lobbyist, to bring charges of voter fraud against Democrats in the state, Iglesias confirmed when asked about the matter during an interview.

Rogers was affiliated with the American Center for Voting Rights, a now defunct non-profit organization that sought to defend voter rights and increase public confidence in the fairness and outcome of elections. However, it has since emerged that the organization played a major role in suppressing the votes of people who intended to cast ballots for Democrats in various states. Rogers is also the former chief counsel to the New Mexico Republican Party, and was tapped by Domenici to replace Iglesias as US Attorney for New Mexico.

Rogers did not respond to emails seeking comment.

Armijo was also unavailable for comment. During his tenure in the US attorney’s office he was in charge of issues related to voter fraud in New Mexico. Iglesias said in an interview that he launched an in-depth investigation into claims of voter fraud in New Mexico and found the allegations to be “non-provable in court.” He said he is certain that his firing was due, in part, to the fact that he would not file criminal charges of voter fraud in New Mexico. Iglesias added that, based on evidence that had surfaced thus far and “Karl Rove’s obsession with voter fraud issues throughout the country,” he now believes GOP operatives had wanted him to go after Democratic-funded organizations in an attempt to swing the 2006 midterm elections to Republicans.

Armijo spoke to the Senate Ethics Committee last year about numerous telephone calls and emails dating back to 2005 he received from Rogers related to voter fraud, and Iglesias’s alleged failure to investigate the matter while Iglesias was US attorney, Iglesias confirmed.

Last May, House Democrats released a transcript of an interview congressional investigators had with one of Gonzales’s senior Justice Department staffers, Matthew Friedrich, in which Friedrich recounted that over breakfast in November 2006, Rogers and Barnett told him they were frustrated about Iglesias’s refusal to pursue cases of voter fraud and that they had spoken to Karl Rove and Domenici about having Iglesias fired.

“I remember them repeating basically what they had said before in terms of unhappiness with Dave Iglesias and the fact that this case hadn’t gone anyplace,” Friedrich said, according to a copy of the interview transcript. “It was clear to me that they did not want him to be the US attorney. And they mentioned that they had essentially . . . they were sort of working towards that.”

According to media reports, Rogers said he does not recall speaking to Rove about Iglesias.

Additionally, Barnett and Rogers met with Monica Goodling, the Justice Department’s White House liaison, in June 2006 to complain that Iglesias was ignoring voter fraud. Goodling’s meeting with Rogers and Barnett took place at the urging of a colleague. Rogers also drafted a lengthy letter that he sent to Domenici detailing what he claimed were Iglesias’s prosecutorial failures, Iglesias said he had been told.

Allen Weh, the New Mexico Republican Party chairman, told McClatchy Newspapers in March that he urged Rove to use his influence to have Iglesias fired because Weh was unhappy with Iglesias’s alleged refusal to bring criminal charges against Democrats in a voter fraud investigation.

At best, nothing will happen until Attorney General John Edwards(?) can order an investigation on January 21, 2009. But the fact that justice will not be served by the Department of Justice does not mean that justice must be denied:

ANY person residing in ANY state can file a grievance against Alberto Gonzales.

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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

The Grievance Project

For nearly two years, I have been watching intently the consistent and continuous dismantling of the Constitution by the President. Through December of 2006, the Congressional Republicans enabled the President both actively by passing legislation and passively by failing to fulfill their Constitutional oversight responsibilities.

When control of both houses of Congress was unexpectedly transferred to the Democratic Party in the 2006 midterm elections, I was cautiously optimistic that there might be some change in the operation of the federal government. Instead, the Bush Administration continue to daily violate the Constitution, Congressional Republicans remain more loyal to their party than to their country and Congressional Democrats have failed to exercise the full powers provided to Congress by the Constitution.

Accordingly, it quickly became clear that the Congressional Democrats would be unable to enact any legislation or stop the occupation of Iraq until 11/18 – not November 18, but until the eleven Republican Senators needed to stop their party’s unprecedented use of filibuster and the eighteen Republican Senators needed to override a veto of that legislation crossed the aisle. It’s simple arithmetic that leaves Congressional Democrats with two – and only two – effective powers: stalemate and subpoena.

For whatever reason, Congressional Democrats have been timid – too timid, in my opinion – in their use of these weapons. Although Congressional Democrats have undertaken an oversight role by issuing subpoenas and holding hearings, each new revelation of incompetence and wrongdoing only leaves me thinking ‘Well, that’s finally enough.’ But it never is.

Congressional Democrats have also failed to recognize the power of stalemate. They apparently don’t believe – as I do – that repeatedly drawing lines in the sand will not defend the Constitution from this Administration and its Republican enablers in Congress. The mere fact that they are making any legislative concession on core American issues such as the use of our military for an occupation of Iraq and the protection of our civil rights is inexcusable.

I fear that the Congressional Democrats, even if they begin to move more aggressively, have run out of time to restore our rights.

While watching this agonizingly slow progress, I have long felt powerless. Although there have fleeting moments of hope, such as the sporadic shows of force by Congressional Democrats, the occasional aisle-crossing Republican or the inexorable turning of the tide of public opinion, they have been effectively neutralized by the continued upward creep of both the number of deaths in Iraq and the number of days in Keith Olbermann’s post-Mission-Accomplished-declaration count. Throughout all this, I have noticed a significant number of attorneys in both the legislative and executive branches of our federal government participating in these various scandals and, as a result, committing what I believe to be breaches of their respective codes of professional conduct.

In his speech to the Virginia House of Burgesses on March 23, 1775, Patrick Henry urged military action against the encroaching British military force. He ended his plea with his most famous words:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

But that was before the Constitution and death was a realistic possibility for Henry for just having spoken those words. As an American citizen, I shouldn’t have to worry about death or other retribution for exercising my right to free speech. However, after having seen how willing this administration is to destroy anyone perceived as a threat, including their own, I am undertaking the Grievance Project anonymously in the vein of Thomas_Paine who anonymously published Common Sense, his first pro-independence pamphlet, on January 10, 1776. In The American Crisis, a collection of pamphlets supporting the Revolution, Paine later penned the famous lines:

These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.

Trying times have indeed returned for those who demand liberty and reject tyranny. While reflecting on these ‘trying times’ over the past months, an idea took root in my mind that has morphed into the Grievance Project in which I will provide information on various attorneys in the service of our federal government who are committing professional ethics violations, links to resources documenting those ethical violations, and links to the information necessary for any citizen-activist to file a grievance against those attorneys.

Each post on an individual attorney will include links to that attorney’s state bar(s) of admission, pertinent grievance information, grievance applications, on-line state bar member’s directory and the applicable rules of professional conduct. I also provide a statement of allegations of alleged ethical violations with links to resources in the public domain that support the allegations and the text to the relevant rules of professionals of professional conduct. With minimal cutting and pasting, it should be a simple process to prepare and submit a grievance. Additionally, I have compiled the links to each state’s, including Washington, D.C.’s, grievance procedures, rules, complaints and member directory that will permit you to file a grievance against any attorney who has committed ethical violations and for whom I have not prepared an individual post.

Please e-mail a copy of any grievances filed, especially if I have not specifically addressed that attorney. Please do not send me a copy of the grievance if it would violate any confidentiality requirements or other restrictions on disclosure.

E.M

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