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.

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