Friday, December 2, 2011

11th Circuit rejects Siegelman, but will it issue a feared "mandate" that could expedite Siegelman's return to prison?

On the left, Bobby Lowder. On the right, former Alabama governor Don Siegelman. (AP photo)
Then-governor Siegelman watches an Auburn basketball game with 
longtime  backer,  Bobby  Lowder, in better times for both men.

               One of Don Siegelman's ever-diminishing avenues of avoiding a return to prison has been closed.
               On Nov. 9, the Atlanta-based 11th Circuit Court of Appeals denied the former Alabama governor's request for a "Rehearing En Banc" -- the legal term for a litigant's request that an entire appeals court consider an adverse ruling by a panel of the court.
               Though he still has several balls in the air, a decision likely to come soon from the same court could lead to Siegelman's going back to prison before conclusion of his seemingly endless appeals process.
               This represents my best effort to explain some of the various challenges facing Siegelman. First, let me disclose that I am not an expert on appellate law or anything close to it. For example, until the other day, I wasn't familiar with the word mandate, or rather, was unfamiliar with it in the context of appellate law.
               I have to believe that, right now, "mandate" is much on Siegelman's mind.
               Here's why, necessary background first.
               On May 5, a three-judge panel of the 11th Circuit denied an appeal by Siegelman and his co-defendant, former HealthSouth CEO Richard Scrushy. They were asking the court to overturn findings of guilt against the pair by the jury that considered their 2006 trial.
               In most cases, appeals are considered, not by the entire court, but by three-judge panels, but when you lose before a panel, you have the right to seek the above-described "Rehearing En Banc."
               It was a given that Siegelman would do so. His lawyers filed this request  three weeks after the panel's decision. Such requests are rarely granted. But considering the history of this case -- we are now more than five years past the trial -- there was a sense that anything could happen.
               Scrushy did not seek a Rehearing En Banc. His decision not to do so marked a diversion of sorts, since the pair's appeals have closely paralleled each other. Scrushy chose not to seek a rehearing because it's in his interest for the appeals process to move swiftly, whereas delay is fine with Siegelman.
               Scrushy, as followers of this saga know, has been in prison since the summer of 2007.  Siegelman was released on bond nine months after going to prison at the same time as Scrushy. For an appeal to do Scrushy any good, in terms of limiting his time behind bars, it must be completed, and in his favor, sooner than later. (He is presently due to be released in January 2013.)
               This is where "mandate" comes in.
               For assistance, Wikipedia:

               After an appeal is heard, the mandate is a formal notice of a decision by a court of appeal; this notice is transmitted to the trial court and, when filed by the clerk of the trial court, constitutes the final judgment on the case...

               Once the clerk of the Middle District Court in Montgomery receives that mandate, the wheels begin turning for Siegelman's return to prison. For obvious reasons, he doesn't want that.
               Now, more of that pesky background: In 2009, the same panel of the 11th Circuit removed two counts against Siegelman, and, in its May ruling, it removed two related counts against Scrushy. That's important because it means that both must be re-sentenced, since both have two fewer charges on their slate then when they were sentenced -- Scrushy to just less than seven years, Siegelman to some months north of seven years.
               On June 10 -- exactly one month after the panel's ruling -- the 11th Circuit issued its mandate for Scrushy. As a result, the process of re-sentencing Scrushy has begun. He is to be released from prison, if temporarily, in January, to return to Alabama for his re-sentencing hearing.
               He hopes to be ordered released on time served or, lacking that, to have a chunk of time removed from his sentence and thus be allowed to return to freedom before January 2013.
               Among the effects if not the true purpose of Siegelman's request for a hearing before the full-court was that it postponed the the possibility of a mandate for him.
               On Nov. 9, the 11th Circuit announced that not one of the judges on the court favored giving Siegelman a hearing before the full court. The next act was issuance of a mandate for Siegelman.
               Siegelman's lawyers moved fast. Six days later, they filed a Motion to Stay Mandate. They surprised no one by announcing their intention to appeal the 11th Circuit's decision to the U.S. Supreme Court. To "stay mandates," appellants must convince an appeals court that there is a reasonable chance that the Supreme Court will consider their appeal.
               Each year, the Supreme Court receives thousands of appeals, called a Petition for Writ of Certiorari. Of those, it agrees to consider about 1 percent. It generally selects cases involving laws that, in the eyes of the court, require clarification.
                Purely on the law of averages, Siegelman's chances are remote. But the same odds applied in 2009. That year, the 11th Circuit did stay his mandate. Had it not, Siegelman would have been sent back to Montgomery for re-sentencing and he'd almost certainly be watching his appeal play out from a prison cell.
               Sam Heldman, Siegelman's D.C.-based appellate lawyer, stressed the court's 2009 stay in his Nov. 15 motion. He argued that now, as then, the Supreme Court has an interest in reviewing cases involving the "honest services" statute, which weighs heavily in Siegelman's case. 
              In fact, Siegelman's 2009 appeal to the Supreme Court was not rejected, though neither was it granted Writ of Certiorari. Rather, it was sent back to the 11th Circuit with orders that the appeals court reconsider the case in light of a landmark ruling by the Supreme Court on the honest services statute, and arising out of on an appeal by former Enron executive Jeff Skilling.
               The 11th Circuit did reconsider it's prior decision, but as the ruling in May testified, that did Siegelman no good. Scrushy, though, did see his two charges removed, and because of the Skilling ruling.
               Litigants who lose at the federal appeals court level -- as Siegelman now has -- have 90 days to file their appeal to the Supreme Court. Heldman noted that Siegelman's certiorari petition is due in early February; and that, in all likelihood, the Supreme Court will decide by June -- the end of its 2011-2012 term -- whether or not to consider Siegelman's petition.
               "So, an order withholding the mandate will not cause any undue, extreme, or indefinite delay," wrote Heldman. "For the foregoing reasons, the Court should withhold the mandate, and should allow Governor Siegelman to remain in his current release status, pending the filing and disposition of a certiorari petition."
               He noted that "if the mandate were to issue, the District Court could move forward to a resentencing" -- that being the doomsday scenario for Siegelman.
               In its reply, filed Nov. 23, the government noted that Siegelman has been out on bond for more than three and a half-years. It argued that the 11th Circuit's ruling reconsidered the Siegelman case in light of the Skilling ruling, as instructed by the Supreme Court, and still upheld the remaining charges against Siegelman. As such, there is little reason to believe the Supreme Court will agree to hear Siegelman's appeal.
               The government stated that there "is no reason to stay the mandate and delay resentencing any further."
               If the court refuses to stay the mandate and Siegelman's re-sentencing moves forward, that would not impact his appeal to the Supreme Court.
          My sense is that the 11th Circuit will "stay the mandate." I believe the court will take the view that, though unlikely, it is not inconceivable that the Supreme Court will consider Siegelman's appeal. I also believe that the Supreme Court will decline to consider Siegelman's case, and once that happens -- such as in late spring or early summer -- that will, or so it's my understanding, shortly thereafter trigger the mandate.
               In my next blog -- coming soon! -- I will examine a Nov. 1 order by trial judge Mark Fuller regarding Scrushy's re-sentencing situation, and explain why it bodes ill for Siegelman.

      NOTE: On Monday (Dec. 5), the 11th Circuit web-site posted notice of a ruling made Thursday by one of its judges, James C. Hill, to Stay the Mandate. The upshot is that the process of re-sentencing Siegelman will not proceed until resolution of Siegelman's appeal to the U.S. Supreme Court. That appeal, as noted above, has not been filed. It is due in early February.

Friday, October 28, 2011

On the death of my editor, Paul Cloos

Paul Cloos

    In 1994, when I moved from writing sports at the Mobile Register (now Press-Register) to news, my editor was Paul Cloos. There were other editors, and I worked with them as well, but the way it worked there, you generally worked under one editor. Paul was still my editor when I left, in 2007.
    Today, he died, due to complications from a motorcycle accident two weeks ago. For some foolish reason, Paul started some years ago to ride a motorcycle -- more like a scooter, really -- to work and back, and he lived in Baldwin County. It was while on his way to work, on the Causeway, that he was hit by a car. He suffered broken bones and serious internal injuries, but was expected to  make a full recovery, if months in the making.
      However, he had a major setback late last week. Over the weekend, Paul's condition improved, but on Wednesday, he took a turn for the worse. He died today (Thursday, Oct. 27.)
       Looking at the picture above, which was in my book, is like looking in his eyes, and it's hard to believe he's gone.
       What follows are several of the many passages in my book, "The Governor of Goat Hill," in which Paul appears. The first is from the acknowledgments and the second contains my most in-depth description of Paul in the book. There are brief introductions to the other two passages.
     This from the Acknowledgements:
      Paul Cloos, my editor since I became a news reporter in 1994, is due a special debt of gratitude for his patience, sense of fairness, and the long hours and weekends he worked improving my stories.

This is form an early chapter:

           My primary editor on probably 95 percent of my Siegelman stories was Paul Cloos. I’d been assigned to Paul in 1994 when I moved from sports to news. Paul is from New York and a graduate of Boston College. He’s a light-skinned redhead, slightly younger than I, and I owe much to him. He is extraordinarily fair and vigilant for any hint of editorializing or evidence of bias within news stories.
           My name was on the Siegelman stories, but he was my silent partner. For Paul, that often meant working well into the night and on Saturdays, though he usually did that anyway.
          I soon learned that in news, and especially with investigative pieces, I had to attribute everything. In those early years Paul and I butted heads almost daily. I would be doing the loud talking with him sitting in his chair, looking up at me with a calmness I wanted to wipe away. I knew I was scoring if he reddened. But moving him from a position? That was another thing.
          “If the sun is shining I have to attribute it to someone else!” I’d complain, to no effect. If a subject of a story was 500 pounds, then “heavyset” was as far as I could go in describing him to a reader.
         It soon became apparent that I needed public records to support almost everything I reported. As a result I became a student of public records and the accepted expert on them within in the newsroom. I developed a near obsession with public records.
      A reporter could turn out three stories a day if all it required was quoting one or more people saying so-and-so is a crook, liar or idiot. I prefer spending more time on a story and laying out what that someone did and why. 
     Quotes help, but if they’re not supported by evidence they’re just hot air transposed to print.
     The point, as I hope is clear, is that Paul -- through his insistence on fairness and, with investigative stories, documentation through public records  -- forced me to become a much better reporter than I was when I began working for him and than I would have been had I not worked for him.

    The following tells about a call I received from the FBI the day  after our (and by that I guess I mean Paul and I's) first major story on the "Goat Hill Construction" scandal, a story that started what became the Siegelman investigation. Paul comes in at the end.

    "I slept in Monday and was awakened mid-morning by a call from Tim Fuhrman, then the number two man at the FBI’s Mobile office. Fuhrman said that some Montgomery-based agents and Jack Brennan, a much-respected former FBI agent then with the attorney general’s office, wanted to talk to me. Soon. As in that afternoon.
     He said it was clear from Sunday’s story that I’d gathered all manner of records.

    The FBI wanted to move fast and it would save them a bunch of time if they could talk to me and copy those records. If it was okay with me, he would tell them to get in the car and come on.
      I knew Tim, if not well, and liked and trusted him. But I’d never had a request like that, and it came with me in bed, groggy with sleep.
     Pluses: The chance to meet with FBI agents, get a first-hand taste of how they operate, and, what the heck, get my ego stroked by a bunch of pros wanting my stuff . Also, did I have an obligation as a citizen to provide investigators with evidence of a crime if I possessed it?
      Minuses: I wasn’t supposed to actively participate in the prosecution of someone I was writing about.
      But: Reporters can and should try to develop a rapport with prosecutors and investigators. There’s almost no such thing as a national political scandal story that doesn’t cite un-named,   "Justice Department sources,” and such relationships inevitably involve some give and take.Was I on the verge of developing such sources for what promised to become a criminal investigation into the Siegelman administration? And if so, wouldn’t this benefit our readers by availing me of information and insights?
       Tell them to come on, I said. I’d meet with them.
       And started having second thoughts after coffee and a shower. I arrived at work and knew I had one option. Tell Paul Cloos, my editor. I suspected he would scotch the meeting on the grounds cited above. If not, and the meeting went ahead, I’d at least have covered my ass.
      Paul was against it and I made no attempt to change his mind. I called Fuhrman, apologized, and said I couldn’t meet. He tried to change my mind, and I sought refuge in the reporter’s trick known as “blame the editor,” the most common variant being, “I hate to have to ask this next question, but my editor says I have to.”

    This last one addresses one of Paul's specialties -- that being, to summarize, high in the story, in one "nut" graph, why readers should be interested in the story and keep on reading. This begins with a comment from Redding Pitt, then the chairman of the Alabama Democratic Party, and regarding the embarrassing disclosure by the party that it had not maintained records relating to a secret, $700,000-plus loan from the Party to the Siegelman-controlled Alabama Lottery Foundation.
      Repayment of that loan largely came by way of two undisclosed $250,000 donations given to Siegelman by then HealthSouth Corp. chairman Richard Scrushy. These donations were at the heart of the "Scrushy" part of the prosecution of Siegelman and Scrushy as well.

   “We keep loan records, it’s just that this particular one, we have no records of,” said Redding, in a quote that didn’t engender confidence in the party’s financial practices.
     The next day’s story quoted Pitt’s promise to locate all pertinent records and file an amended disclosure with the secretary of state. It included the following “nut graphs,” those one or two paragraphs we newspaper people use to summarize the gist of a story and/or convey to a reader why the issue being reported is important, or in any event, why we think so.
     These graphs, probably fashioned by Paul Cloos, our nut-graph specialist, proved prophetic:

    "Given the amount of money involved and the questions that remain unanswered about the Democratic Party’s role, there may be numerous lottery-related donations by lawyers, political action committees, businesses and individuals that remain undisclosed.
    In the past 18 months or so, news stories in the Register and other papers have reported that some of the companies that have received lucrative state contracts, often without facing competition, donated to the governor’s campaign or the lottery effort."

    Paul and I had not talked in awhile. I planned to go see him after giving him a week or so to get better. Then he had his setback, from which he did not recover.
      We pissed each other off a lot, but we laughed a lot too. Never in my life have I had a working relationship anywhere near as close or as productive as the one I had with Paul Cloos.
      If Paul were here, he would say this story is getting too long, so put an end to it. We would argue, but this time, I'll let him win.
      Thanks for everything Paul. I miss you and trust I always will.

Tuesday, August 2, 2011

Florida judge to Siegelman and Scrushy: "End of Story"

          Judge Mark Fuller                                       Judge Robert Hinkle
              "The e-mails, on their face, seemed more likely amateurish fakes than authentic. Thus, for example, one purported to be a screen shot from an email page with a link allowing the receiving party to 'Report As Seem' rather than to 'Report as Spam.' "
            -- Tallahassee, Fla., based federal judge Robert Hinkle, in his June 29 ruling rejecting requests by former Alabama Gov. Don Siegelman and ex-HealthSouth chairman Richard Scrushy that he assume responsibility for their re-sentencing from trial judge Mark Fuller. 

            "A theme that runs through the defendants’ motion to recuse is that the court handled the issue improperly—that it should have granted a new trial or at least conducted or authorized a broader investigation.  I disagree.  And more importantly, the Eleventh Circuit has now disagreed.  The importance of this cannot be overemphasized: the Eleventh Circuit has squarely rejected the defendants’ position that the district court should have granted a new trial or at least conducted or authorized a broader investigation."
            -- Hinkle, an appointee of Democratic president Bill Clinton, in the same ruling.

            Once again, irresponsible allegations against participants in the Siegelman-Scrushy case have been rejected for the bizarre, tortured, paranoid gibberish they always were.
            On June 29, Florida federal judge Robert Hinkle not merely dismissed but disparaged the charges by the defendants and their lawyers against jurors, trial judge Mark Fuller and others who, like them, have had to suffer in silence as a result of the scorched-earth legal and public relations campaign pursued by Siegelman and Scrushy since the 2006 guilty verdicts.
            Understandably, Hinkle's order received little media play. With the bingo trial daily pumping out details on the sordid state of Alabama's political affairs, this significant development in the Siegelman/Scrushy case passed by all but un-noticed. The Associated Press wire ran a four-paragraph brief reporting Hinkle's decision, but it was devoid of details.
            So, here I am.
            I got all kinds of space here on, "Goat Hill Chronicles." Unlimited, really. And so I'm going to include some passages from Hinkle's order. If a case is interesting, and this one certainly is, the court filings -- by both sides, the judge, etc. -- make good reading. In any event, I think so. And in providing his words, filters are removed. You get to see for yourself.

            The procedural impact of the ruling is that Fuller will almost surely see the pair one last time in his Montgomery courtroom. My guess is that the dramatic final act in this seemingly endless case will occur in late fall. Be mindful, though, that my prior predictions on the time-frame for re-sentencing have all been wrong.
            It's unlikely that the U.S. Supreme Court will consider the expected appeals by Siegelman and Scrushy of the 11th Circuit Court of Appeals' decision, in May, to uphold all but two counts against each man. This refusal will presumably be announced in late August or early September, when the court convenes following its summer break. That's when the court decides which of the relative handful of the thousands of appeals it will consider. The rest are losers.
            Once that happens, Fuller can schedule the re-sentencing.
            (Re-sentencing is necessary because the 11th Circuit dismissed two counts against each defendant. The original sentences were based on criteria that included the since-removed charges. Scrushy has been in prison since July 2007 and is due out in 2013. Siegelman was released on bond after serving about nine months. Both were sentenced to about seven years. Because he served such a small portion of his sentence, Siegelman has a lot more hinging on re-sentencing than Scrushy.)
            Hinkle's order was precipitated by a series of post-trial filings demanding that Fuller remove himself from the case. These demands put Fuller in the uncomfortable position of having to decide issues in which he was the focal point.
            In May 2010, he asked the 11th Circuit to determine if he should be disqualified from presiding over future matters regarding the case. The 11th Circuit assigned Hinkle to decide.
            Hinkle is a Democratic appointee, whereas Fuller was appointed by President George W. Bush. Siegelman, with all his howling about Karl Rove, has done a fine job of convincing many sensible people that Rove and a cabal of top Alabama Republicans targeted him for political reasons. If a Republican judge ruled against Siegelman and Scrushy here, one supposes there would be more such howling. But if a Democrat appointee made the same ruling, well, that wouldn't serve the conspiracy. I won't pretend to suggest that I have the first clue why the 11th Circuit tapped Hinkle, such as if his Democratic pedigree factored in. In any event, having a Democratic appointee's signature on the order adds some muscle to the positions stated within.
            Interestingly, Hinkle revealed in his order that he was initially inclined to hold oral arguments. (For those unfamiliar with the appeals process, that's when an appeals court or judge holds a hearing in which the party's lawyers make their cases in court and respond to questions from the judge/judges.) 
            Then he reviewed the briefs from the defendants and prosecutors, the applicable portions of the court record, and the rulings by the 11th Circuit. After doing so, Hinkle "determined ... that oral argument would serve no purpose."
            "The recusal motions fail on their merits," he wrote.
            Translation: Siegelman and Scrushy swung for the fences, popped out to first.
            In the past four years, lawyers for the pair have taken a two-prong appeal strategy. The main prong entailed pursuing appeals based on the law and facts of the guilty counts, and was of course expected.
            The second prong involved attacks on the judge and jurors. Two separate, unconnected reasons were presented in support of the demand that Fuller remove himself.
            Initially, in 2007, Scrushy's lawyers asked that Fuller not merely remove himself from the case, but that he order a new trial because he failed to remove himself prior to the 2006 trial. The basis of this ludicrous demand was Fuller's ownership of a substantial portion of an Enterprise-based company that has contracts to sell fuel and provide pilot training to the Air Force.
            Fuller's father had been the lawyer for the company, called Doss Aviation. In the late 1980s, when its owners decided to sell, Fuller, his father and others bought it. This occurred ages before he became a federal judge; his income from the company has always been reported on his publicly available financial disclosures; there is of course no ban on federal judges earning outside income, such as from stocks; and his shares in Doss were not an issue when the U.S. Senate confirmed him.
            Among the problems with the Doss demand was that it was made too late. If Scrushy and his lawyers had a problem with it, they should have raised it before the trial, not after.
            The 11th Circuit has shot it down twice, in 2009, and again, in May. The court wrote that Scrushy's post-trial demand had "all the earmarks of an eleventh-hour ploy based upon his dissatisfaction with the jury’s verdict and the judge's post-trial rulings.”
            Hinkle spent little time on the "Doss" issue because, as he wrote, the 11th Circuit "squarely rejected the defendants’ assertions on this issue." Hinkle agreed with the higher court, declaring that Fuller's part-ownership in the company "has nothing to do with the judiciary or this case."
            He expended considerable more time with his discussion of the second reason given by Siegelman and Scrushy for Fuller to step aside from their case. This second argument pertained to the assuredly bogus "juror e-mails" mailed in batches to lawyers for Siegelman and Scrushy in the months after the jury's verdict. They arrived without return addresses and the sender neglected to identify him or herself. The e-mails were purportedly between three jurors, and during the trial.
            Fuller was to convene two hearings on the juror e-mails and another, equally specious juror issue raised by the defendants. At both, jurors were summoned back to court to testify. In his rulings denying a new trial, Fuller stated that he believed the e-mails were fake. However, he also considered, for sake of argument, that they were real. His conclusion: Even if they were authentic, the statements made in the e-mails did not rise to a level that would require a new trial.
            All of the e-mails were to or from jurors Katie Langer and foreman Sam Hendrix (one involved a third juror). After Fuller's ruling that the e-mails failed to warrant a new trial even if they were real, another batch was sent. These were harsher, and seemed tailored to cure the defects in the others.
            Rather than re-invent the wheel, I'll appropriate my description of the situation from my book, "The Governor of Goat Hill":

            Almost two years later, in July 2008, the Justice Department notified the defense lawyers that there had been an investigation into the e-mails.
            It was disclosed that the last two e-mails were also sent to Langer’s supervisor and four of Hendrix’s co-workers. The co-workers reported receipt of the e-mails to Langer and Hendrix, who, separate of each another, contacted the U.S. Marshals to complain. The marshals passed it on to (lead Siegelman prosecutor) Louis Franklin, who turned the matter over to postal inspectors.
            The postal inspectors interviewed Langer, Hendrix and their co-workers, as well as a fellow employee of Hendrix’s who monitored his e-mail during the two month trial to make sure Hendrix didn’t miss anything. The co-worker said he never saw any e-mails from the Katie Langer address. The inspectors also printed out test e-mails to and from Langer’s e-mail account and compared them to the anonymously sent e-mails.
            The postal inspectors concluded that the e-mails were frauds. They submitted the envelopes and e-mail sheets to forensic testing, and described the results as inconclusive. The investigation was closed in September 2007, without a determination as to who had sent them.
            Midway through the probe the U.S. Marshal's Office informed Fuller about the matter, and the determination, already made by then, that the e-mails were fakes.
            In July 2008, the Justice Department wrote the defense lawyers to apprise them of the results of the postal inspectors report, and gave them the report.
            Incredibly, the news stories reporting the postal inspectors’ findings and the incredibly spiteful act against the two jurors focused, not on the victims or the determination that the e-mails were frauds, but on the squeaky wheels. Team Siegelman, with Artur Davis playing point man, did a brilliant job of turning lemons into lemonade. The Alabama congressman handed the media copies of the Justice Department letter to the defendants and accused Fuller and Franklin of misconduct in failing to disclose the probe to Siegelman, Scrushy, and their attorneys.
            Franklin responded that the postal inspectors were investigating complaints of juror harassment and that neither he nor Fuller had any oversight over the probe, and that the e-mail investigation was done as a matter of court security, not as part of the case.
            Siegelman and Scrushy, through their lawyers, demanded that Fuller recuse himself because he failed to inform the defense teams of the investigation when it started and for some time after it was completed. They also argued that they would need to question Fuller about an April 2007 meeting when the U.S. Marshals told him that postal inspectors were investigating the e-mails because they were sent to co-workers of the jurors.
        For the lawyers to question Fuller, he would first have to remove himself from the case.
            "Chief Judge Fuller is a material witness in this proceeding, and has personal knowledge of evidentiary facts placed in dispute. Therefore he must disqualify himself," stated a motion by Scrushy's lawyers.
            They'd already managed to turn the jurors into witnesses and now they wanted the judge, too.
            Because the defendants made much of the e-mails, Hinkle addressed them along with the outlandish attempt to compel testimony from the judge.
            Hinkle left no doubt that he believed the e-mails fake -- as in, not to and from jurors, but manufactured by someone so sleazy that he, she or they would falsely tarnish jurors if it could win a new trial for Scrushy and Siegelman.
            There is, for example, the quote atop this piece, with Hinkle saying they "seemed more likely amateurish fakes than authentic." Elsewhere, Hinkle noted that Fuller doubted the authenticity of the e-mails and said he did too  --  "for reasons having nothing to do with the Postal Inspection Service’s investigation or the report to Chief Judge Fuller."
            "My doubt springs from my review of the e-mails and my commonsense analysis of the circumstances," he wrote.
            If anything, Hinkle seemed even less inclined than Fuller to permit lawyers for Siegelman and Scrushy to subpoena the computer and cell phone records of the jurors -- a truly amazing request, if you think about it. No shortage of, uh, balls. Not on the part of these defendants and their lawyers.
            Like Fuller, Hinkle expressed concern about the impact of the defendants' proposed course of action on the willingness of future jurors to serve.
            He wrote:

            In this case the jurors served for nearly two months.  They incurred a substantial burden.  The defendants now propose an intrusive investigation including subpoenas to their cellular and internet service providers and a review of their text messages and e-mails.  The defendants propose seizing the jurors’ computers for a forensic examination.
             This kind of treatment sometimes befalls a person accused of a crime or  even someone involved in substantial civil litigation. To visit it upon a juror,  based on nothing more than anonymously provided e-mails that bear no indicia of authenticity and that conveniently showed up just after the court issued a comprehensive opinion explaining why earlier e-mails were insufficient to warrant relief, would inflict an indefensible additional burden on these jurors.  Treating jurors this way would make future jurors understandably reluctant to serve.
            We ask much of jurors.  But not this much.

            Like Fuller before him, the Florida judge gave Siegelman and Scrushy the benefit of the doubt by considering the impact on the juror's behavior if one assumed the e-mails real. And, like Fuller, he concluded that the statements in the e-mails weren't damning enough to compromise the verdict. He made an observation about one of the e-mails that I'd never seen before and, well, didn't considered when writing a chapter in my book about the alleged juror misconduct.
            He cited an e-mail that read in part, "penalty 2 severe." (See e-mail below)

This is the purported juror e-mail containing the portion discussed above, with the line, "penalty 2 severe." At the top of the e-mail is the "Report as Seem" mentioned in Hinkle's order and in the quote atop this blog. It should say, "Report as Spam." 

            Jurors are not supposed to consider sentencing when deciding criminal counts. But, if one took the e-mail at face value, a juror knew and was possibly factoring the sentencing in is thinking. Hinkle noted that jurors sometimes are aware of sentences -- especially in capital cases -- and belittled the impact of a juror knowing the sentencing ranges on these charges.
            Hinkle wrote that if the juror had "somehow learned the maximum sentence, that does not undermine confidence in the verdict." And then (parts in bold are mine):

            "For one thing, any prejudice would have cut against the government; the email, if authentic, indicated that a juror thought the possible penalties were too severe.  A juror who thinks a penalty is too severe might ignore the point—as the juror should—and thus be equally likely to convict. Or the juror might be less likely to convict because the juror does not wish to subject the defendant to a too-harsh penalty.  But the juror plainly would not be more likely to convict."

            The remaining issue was the innocuous decision by the Marshals to inform Fuller of the postal inspectors investigation into the e-mails.
            Hinkle acknowledged that it would have been best if the Marshals hadn't told Fuller about the investigation and that Fuller perhaps should have blocked further communications about the investigation from the Marshals and Postal Service. Hinkle, though, said it "should could come as no shock" that judges come across outside information regarding cases they are presiding over.
            "If someone prepared a phony email and sent it through the United States Postal Service to a party, attorney, or someone else, in the expectation that it would reach the court for consideration in connection with a motion for a new trial, it was a crime, or so a reasonable person might conclude.... Similarly, if someone sent a phony email to a juror’s coworker in an effort to harass or intimidate the juror, a reasonable person might conclude it was a crime," wrote the Florida judge.
            The U.S. Attorney's Office had "every right to refer these purported e-mails to the Marshals service ... or the Postal Inspection Service," Hinkle wrote, adding that those agencies had "every right to investigate."
            And then:

            "They had the right to investigate not for the purpose of supporting the government in the Siegelman and Scrushy case but for the purpose of determining whether a new crime had been committed and, if so, who committed it.  The defendants’ suggestion that there was something wrong with this is plainly incorrect.
            It was prudent, and perhaps even required, for the acting United States Attorney to assign the new investigation to an assistant not involved in the Siegelman and Scrushy prosecution.  And it was prudent for the Marshals Service to let the Postal Inspection Service spearhead the investigation.  None of this casts doubt on the propriety of the investigation that the Postal Inspection Service conducted."

            Here's what Hinkle had to say about Fuller's meeting in April 2007 with the Marshals, and, from there, to the demands by Siegelman and Scrushy that Fuller step aside from the case:

             "The answer is this. In light of the Eleventh Circuit’s decision on appeal and the analysis set out above, what was said in the April 2007 meeting does not matter; it is not a disputed issue.  The judge properly decided all issues presented after the meeting, and will properly decide all further issues, without considering what was said in the April 2007 meeting in any way. End of story."

            You read right.
            He wrote: End of story.
            From Hinkle's perspective, yes. But I don't think it should be the end of the story.
            I believe that when this issue arose -- when the bogus e-mails were sent, and in the period after -- Siegelman had stage-managed the coverage of this case by the national media and with John Conyers and others on the U.S. House Judiciary Committee. I think the U.S. Attorney's Office -- at the time, inundated with all manner of accusations of favoritism and political prosecution -- was intimidated, that the prosecutors there were scared that an investigation into the e-mails would only generate more attacks. And given the abundance, nature and sources of the attacks -- the House Judiciary Committee and its chairman, for example -- their reluctance was understandable.
            The statute of limitations may have run, but if not, I think George Beck -- the new U.S. Attorney in Montgomery, and an Obama appointee -- should assign the FBI to investigate the source of the e-mails. This was a crime against jurors who gave two months of their lives to this case. Every attempt should be made to determine the culprit and bring him, her or them to justice.
            If they were to call, I'd be glad to give them some ideas about where to start. I think I know how or, in any event, from whom the e-mail addresses of the jurors were procured. As for who procured them, and where the ladder would lead, I can only guess.

Wednesday, July 27, 2011

McGregor would have ranked 4th in CEO payment for 2009

$$Milton McGregor$$

                  Alabama should be proud.
            Our very own Milton McGregor was one of the best paid corporate chieftains in the country in 2009, and, for all we know, many years preceding.
            Mr. Big Hair's eye-popping $28.3 million in income in 2009 -- a precious nugget reported yesterday from the bingo trial --  would have placed him fourth among the country's highest-paid CEO's that year. According to CNN/Money, Oracle's Larry Ellison took the top spot ($84.5 million) in 2009; followed by Ray Elliott of Boston Scientific ($33.4 million); Ray Irani of Occidental Petroleum ($34.1 million); and Mark Hurd of Hewlett-Packard ($24.2 million).
            Hurd would have been bumped a spot if the Alabama dog track/electronic bingo magnate's gaming company were public. Hard to believe, isn't it, that there was that much left over from his "electronic bingo" operations after all those payments to charity. (WINK! WINK!)
            Among those trailing the chief defendant in the ongoing electronic bingo corruption trial was media mogul Rupert Murdoch, who's also swimming in hot water these days. Murdoch ranked 17th in 2009, with $18 million. He fell $10.8 million short of Alabama's pride.
            If McGregor's $28.3 million take in 2009 isn't the result of a transfer of wealth from the poor to the rich then there's no such thing. I continue to be befuddled by the intense and broad support McGregor and his gaming operations receive from state Democrats and Alabama's blacks, especially black leaders.
            And not just befuddled. Disgusted as well. (Probably his money has something to do with it, you think?)
            Here's a quote from my book, "The Governor of Goat Hill":

            "McGregor is a major supporter of Democratic politicians, because in Alabama, taxing the poor through gambling is not only consistent with Democratic principles, but is among the state party’s only objectives."

            Certainly this trial has done nothing to alter that opinion.
            None of which means McGregor will be found guilty. From the start, one of the most dangerous charges, from McGregor's perspective, seemed to involve the $72,000 in payments to Ray Crosby, an attorney for the legislature whose job involved drafting legislation. According to a report on Al.Com, on Wednesday morning, trial judge Myron Thompson indicated he wasn't sure the prosecution had proved a crime on those counts.
            Thompson's comments were of course made out of earshot of the jurors, as were responses to his questions about the Crosby counts and other issues.
            I don't think anyone ever expected McGregor to testify, but an answer by one of his lawyers to one of Thompson's questions would appear to settle the matter for good.
            This, from Press-Register reporter Brendan Kirby's story:

            Thompson had tough questions for lawyers on both sides today. While he grilled prosecutors over the intricacies of bribery law, he demanded to know why McGregor was paying $3,000 a month to Ray Crosby, who at the time worked for a government agency that was in charge of drafting legislation for lawmakers.
            “I don’t know,”(McGregor lawyer Sam) Heldman said.
            Thompson asked if a jury could not infer the worst, given the lack of explanation.
            Heldman said that the burden is on prosecutors to prove a corrupt intent. He acknowledged that Crosby worked with McGregor on gambling legislation but pointed out that state law authorized that as long as the bill’s sponsor approved it.
            “Merely paying him is not a crime, not a federal crime,” he said. 

            If McGregor's own lawyer doesn't know why McGregor paid Crosby, and at this late stage of the proceedings, it's fair to infer that he's not going to let his client get in the witness chair and let a prosecutor ask the question.
            It would also seem unlikely that Crosby will testify, since, if he were to, he's sure to be asked why McGregor paid him; why he failed to report the payments on his ethics disclosures; and much else as well.
            What many people don't realize is that prosecutors face a substantial burden in proving a bribery charge, or a quid pro quo. It's not enough to show money going from one person to another, and the other using his public position to help his benefactor. They must also prove that the payments and the public acts were part of an illegal agreement. If neither Crosby nor McGregor testify, the prosecution may come up short on these charges even if guilt seems obvious, as it does to me, on the Crosby counts.
            Heldman may believe his client guilty as well. That he doesn't know why McGregor paid Crosby suggests that he didn't ask his client and that his client never took it upon himself to explain. Heldman's failure to ask his client about this important matter suggests that he suspects the worst and, by not asking, can truthfully answer to the court that he doesn't know why the monthly $3,000 payments were made.

Milton McGregor's Lawyers
            I'm not entirely sure of the relevance to the charges to yesterday's revelation of McGregor's 2009 income, but I trust that the lawyers on both sides and the judge worked that out. In any event, I'm glad to know. One of the great benefits of public corruption trials (Siegelman/Scrushy comes to mind) is that all manner of scrupulously concealed facts, figures and relationships finally see the light of the day.
            One example among many: That McGregor paid $300,000 to a company owned by the chairman of the Christian Coalition of Alabama. Randy Brinson, the Christian payee, had in recent years given media quotes supportive of McGregor's efforts in the legislature.
            If you're reading this, those payments probably don't come as news to you. And I don't have anything to add to what you know. But it is amazing, isn't it? 

Randy Brinson, Milton McGregor's "$300,000 Man"

Monday, July 25, 2011

The Lowdown on "Honest Services"

J.B. Perrine

        Anyone who's been paying attention to the bouncing ball that the Siegelman/Scrushy appeal has become has heard about the "honest services" statute. The statute, which is also being used by prosecutors in the bingo trial, has in the past several years come under appellate review, primarily by the U.S. Supreme Court.
            Recently, J. B. Perrine, one of the prosecutors on the Siegelman/Scrushy team, co-authored an informative piece on the recent travails of the statute and an analysis of its future as a tool for prosecutors bringing cases against white collar defendants in the private and public sector.
            The article, called, "Navigating the Honest Services Fraud Statute: After Skilling v. United States," is in the July issue of, "The Alabama Lawyer," the magazine of the Alabama Bar Association. (To read the piece, download the issue by going here --
            It's written for lawyers and, as such, is technical in some places. However, laymen who've followed the case shouldn't have any difficulty.
            Some quotes from the piece:

            "Despite reports that the Supreme Court 'gutted and eviscerated one of the federal prosecutors' favorite weapons,' Skilling does not provide either public or private officials with carte blanche to dishonestly conduct their affairs."

            "Despite the availability of criminal offenses other than honest services fraud, the Supreme Court in Skilling may have insulated certain conduct from prosecution by federal authorities. An area of particular interest is a public official's receipt of a campaign contribution that is temporally followed by his appointment of the donor to a public position."

            "The exact contours of the honest services fraud statute are presently unknown, but the federal offense certainly encompasses a smaller scope of conduct that it did before the Supreme Court's decision in Skilling..."

            Perrine handled much of the brief writing chores for the Siegelman prosecution team. Last fall, he left the U.S. Attorney's Office in Montgomery for private practice. He opened a Montgomery office for a mid-sized, multi-state law firm called, Bailey & Glasser. Perrine is specializing in white collar criminal defense and complex civil litigation. 

Tuesday, June 7, 2011

McGregor's Fox in the Henhouse

I wrote, "McGregor's Fox in the Henhouse" for my web-page, EddieCurran.Com, shortly after the bingo indictments came down in October. The column, reprinted here, is an analysis of the government's case against Joseph Crosby, a lawyer for the state legislature who is accused of accepting bribes from dogtrack owner Milton McGregor. Back in October, I cited the apparent strength of the case against Crosby in all but predicting that he would enter into a plea agreement and testify against McGregor. Though I suppose that option remains open to Crosby, it appears that prognostication missed the mark.

JOSEPH CROSBY (Birmingham News photo)

       Government employees are forever belittled as bureaucrats, a word ripe with stereotype that I don't care for. In my experience "bureaucrats" often act as a bulwark against public corruption, far more likely to serve as sources reporting malfeasance than participating in it. Most government employees I've met are friendly, bright, honest and hard-working.
       An exception -- at least as regards the honesty part -- would seem to be Joseph Crosby. He is a 61-year-old lawyer and upper-level employee of the Legislative Reference Service. That's the non-partisan research and bill-drafting arm of the state legislature. When a senator or representative wants to propose a bill, he or she goes to the Legislative Reference Service. Someone like Crosby essentially translates the legislator's wishes into bill form, with all the required legalese.
        The Crosby charge is different from the other counts against McGregor in that it alleges bribery of a state employee, not a politician, and involves, not campaign contributions, but payments to the employee. In return, or so the government alleges, Crosby helped McGregor manipulate the drafting of legislation that would govern the operations of gaming in Alabama.
       The indictment presents all manner of threats to McGregor, but for two reasons, the Crosby charge appears the most dangerous in the government's arsenal against the Bingo Magnate.
       The first is that it alleges payments to a public official, not a candidate's campaign. The bribery laws make little distinction between the two, but people -- jurors, for example -- generally take a harsher view of payments, cash or otherwise, than to campaign contributions.
      The second reason for McGregor to fear: Crosby would be a fool not to seek a plea deal. Unless he can justify accepting secret payments from McGregor -- and it's hard to imagine how -- then prosecutors have him dead to rights. If Crosby rolls the dice, goes to trial and loses, he could easily receive a sentence in the five-year range.
       However, considering his value to the government as a cooperating witness -- a potential silver bullet in the government's case against McGregor -- a cooperating Crosby could expect a sentence of about a year, give or take six months in either direction.
         With Crosby, McGregor had a fox in the henhouse.
         On one occasion, Crosby contradicted the specific directives of an anti-gaming state senator whose proposals could have harmed
McGregor's business. The legislation had been assigned to another staffer but Crosby, using his seniority, took over the drafting of the bill.
       When the senator noticed Crosby had failed to follow his wishes, he ordered the state employee to re-do it.
       According to the indictment, from May 2008 to April 2010, McGregor "caused to be issued monthly checks in the amount of
$3,000, totaling $72,000, made payable to CROSBY....who was prohibited from receiving income in addition to his State of Alabama salary for his official assistance."
        The checks -- don't ask me why, I suppose because they were exercising some combination of brazenness and stupidity -- were written on Macon County Greyhound Park checks, made payable to Crosby, and sent to his home.
        The indictment presents numerous examples showing Crosby serving McGregor, not the taxpayers funding his $160,000 salary. It describes Crosby sending McGregor and the lawyer drafts of legislation, and making changes dictated to him, not by the legislators he served, but by McGregor.
        What follows are several interesting examples from the indictment, presented verbatim (thus allowing me to be lazy by not summarizing/condensing them, but also to give readers a feel for how federal corruption indictments read). Words in black are mine:

        168. On or about March 4, 2010, MCGREGOR, through his lawyer, gave specific instructions for CROSBY to make changes to SB380 (the bingo legislation, called, "The Sweet Home Alabama" bill.)
        169. On or about March 7, 2010, CROSBY told MCGREGOR his work on SB380 had been “pretty exhausting.” 
In response, MCGREGOR stated, “I wanted to thank you for staying on top of everything and, and, uh, responding to working with us.”
        170. On or about March 8, 9, and 10, 2010, CROSBY directed an employee of the Legislative Reference Service to transmit updated drafts of SB380 to MCGREGOR. 
        171. "On or about March 10, 2010, CROSBY promised MCGREGOR that he would make changes to SB380 and get the agreement of the bill’s Senate sponsor. During the conversation, MCGREGOR told CROSBY, “I appreciate your efforts, big man,” before asking him to “jog [his] memory” regarding proposed changes to the bill.
       172. On or about March 11, 2010, MCGREGOR told (Montgomery lobbyist and McGregor co-defendant Tom) COKER that CROSBY, along with MCGREGOR’s lawyer and the sponsor of the legislation (the sponsor was State Sen. Roger Bedford), “fixed” some language in SB380 that would affect MCGREGOR’s tax liability.

      That last bit -- about McGregor's tax liability -- is interesting and, probably for the prosecution, important. The gambling folks -- McGregor his minions, legislators included -- were forever telling the public and the media that one of the chief benefits of the "Sweet Home Alabama" legislation was to generate huge sums of taxes for Alabama. It appears, from the above, that not only McGregor, but Roger Bedford (unindicted, at least for now) and a state employee being paid by McGregor were working to limit the taxes to be paid by the Bingo Magnate's operations.
       Bedford's use of his position to limit McGregor's tax liability should be shocking, but it's not. (This suggests a blog idea: A simple categorization of Roger Bedford's dubious acts over the past 20 or so would be VERY long blog.)
       Back to the indictment:
       173. On March 11, 2010, MCGREGOR asked SB380’s sponsor to talk to MCGREGOR’s lawyer, who “knows more about my finances than I do,” in an effort to amend the bill in a way that would reduce MCGREGOR’s tax liability under the legislation."
     174. On or about March 11, 2010, and March 12, 2010, CROSBY directed an employee of the Legislative Reference Service to transmit updated drafts of SB380 to MCGREGOR.
     175. On or about March 12, 2010, in a telephone call with CROSBY, MCGREGOR provided specific provisions that were to be included in a revised SB380 and urged CROSBY to speed up the drafting process so that his legislation would advance before bills proposed by other legislators.
      176. Later that same day, on or about March 12, 2010, referencing a proposed tax provision in SB380, MCGREGOR assured COKER that “we ain’t gonna pay no higher tax.”
     177. On or about March 14, 2010, MASSEY told GILLEY (Country Crossing developer Ronnie Gilley, who has pleaded guilty and will testify at trial) that any proposed pro-gambling legislation would go through CROSBY, and that CROSBY could be expected to report any such legislative developments to MCGREGOR.

     Two unfortunate fact issues would seem to encourage Crosby to fold rather than fight.
     He was paid a salary of $160,000 -- a sum that would seem to make the secret McGregor bonuses all the more inexcusable. Even more problematic was Crosby's failure to report the McGregor stipends on his annual financial disclosures with the Alabama Ethic Commission.
       In July, the feds issued a subpoena to the Legislative Reference Service, seeking all manner of records, such as drafts of the bingo legislation. Soon after, Crosby amended his past reports to include the McGregor money. Reporting the receipt of illegal funds doesn't magically render them legal, but not reporting them, and getting caught, makes it all the more illegal, if you know what I mean.
      Crosby and his lawyers will certainly weigh those matters when making the momentous decision to plea and testify against King Bingo or risk going before a jury.