Friday, January 20, 2012

Judge snuffs fourth and long ploy by Scrushy

Ruling also setback for Siegelman

   The above is from the final page of the order issued Wednesday 
by Montgomery-based U.S. Magistrate Charles Coody

            If one story-line has developed in the seemingly endless post-trial life of the Siegelman/Scrushy saga, it's this: When the rubber hits the road, the pair lose.
            The former Alabama governor and disgraced ex-HealthSouth CEO sucked in the national media with their multifarious conspiracies and tales of woe. They've set a standard for selling nonsense (See Simpson, Jill) to presumably intelligent, responsible reporters (See, among others, many at the New York Times and CBS/"60 Minutes.") But when they and their lawyers have tried to spin the same wild tales before a court, the storyline changes.
            A careful review of the claims by judges, then rejection.
            The latest example: A ruling issued Wednesday by Montgomery-based U.S. Magistrate Judge Charles Coody on Scrushy's demand for an evidentiary hearing. This, his lawyers argued, was necessary, so they could prove one or more of four claims of wrongdoing which they contended would compel the court to order a new trial for Scrushy and Siegelman.
            Barring a most unlikely intervention by the U.S. Supreme Court, Scrushy/Siegelman II is not going to happen.
             Coody arguably went too far in agreeing to Scrushy's request that he review reams of trial evidence and other materials. (Mark Fuller, not Coody, was the trial judge in the case.). He ordered the Justice Department to conduct various searches, such as for old e-mails; and compelled the former lawyer for chief witness Nick Bailey to produce a pre-trial notebook kept by Bailey.
            Coody, as he wrote in his order, went through it all in camera -- which is to say, he personally reviewed the documents produced by the Justice Department as well as substantial portions of the trial transcripts to determine if any of documents and e-mails supported the allegations made by Team Scrushy.
            About his efforts and findings, he wrote, among other things:
            "The court has carefully and thoroughly reviewed all material provided by the United States. The material does not further the defendant's claims, does not contain exculpatory material, and contains nothing justifying an evidentiary hearing."

            Coody's decision, though on a request by Scrushy, arguably hits Siegelman harder. The "new trial effort" was one of Siegelman's final chances of avoiding a return to prison for what could be in the neighborhood of six years. The worst case scenario for Scrushy is that his estimated June 2013 release date remains unchanged. 
             (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.)
            Unlike Scrushy, Siegelman wasn't released on appeal in 2008, so he has, at most, another year in prison.
            As best as I can tell, the only remaining avenue for Siegelman is for the U.S. Supreme Court to agree to consider his appeal of the 11th Circuit's latest ruling upholding his conviction. Chances for that appear dim. (For more about that, see the blog entry below this one.)
            I like going into detail, so for those who want the detail, keep reading. For those who don't, thanks for spending time with, "Goat Hill Chronicles."

            Scrushy and his lawyers made four distinct arguments for a new trial, or, lacking that, an evidentiary hearing to help them win a new trial. The four issues:
            1. That Scrushy (and Siegelman) were selectively prosecuted in violation of their Fifth Amendment Rights.
            2. That trial judge Mark Fuller engaged in "judicial misconduct" by having ex parte communications (communications with one party in a case, but not the others) with the government.
            3. That then U.S. Attorney Leura Canary "deprived (Scrushy) of a disinterested prosecutor" by failing to honor her decision to remove herself from the case.
            4. That the Justice Department and U.S. Attorneys who tried the case committed "prosecutorial misconduct" by withholding "exculpatory and impeaching information" from the defendants. That's to say, evidence that would have helped the defendants at trial -- specifically, alleged FBI interview reports of interviews with chief witness Nick Bailey showing Bailey saying something helpful to the defense, and which were not turned over to the defense prior to trial.
            Coody addressed each of those, and so will we here. But first, something to keep in mind.
            As Coody noted throughout his order, defendants must clear all manner of hurdles to prove they deserve a new trial. If that wasn't so, every defendant found guilty at trial could seek a second shot, which would overburden the court system.
            As Coody put it:

             "Motions for new trial based on newly discovered evidence are highly disfavored in the (11th) Circuit and 'should be granted only with great caution.'....It is the defendant's burden to justify a new trial."
            Judging from Coody's findings, Scrushy did not come close to meeting that burden with either of his four arguments.
            Here goes:
            1. The Selective Prosecution Argument: From the word go, years before he was even indicted, Siegelman has presented himself as the victim of a Republican-backed effort to destroy his political career. Scrushy's claim here is, essentially, that the Repubs tossed him into the mix to increase their chances of getting Siegelman. Thus, he was the victim of selective prosecution.
            If Coody is correct on the law, and I assume he is, then Scrushy's lawyers took the wrong direction in making the case for selective prosecution. To succeed on such a claim, a defendant -- and here, Coody cites legal precedent -- must make "a credible showing of what constitutes 'similarly situated persons."
            The "demanding burden" facing Scrushy's lawyers: They had to "establish that the government could prove beyond a reasonable doubt that someone else had engaged in the same type of conduct, committing the same crime in ... substantially the same manner."
            In their brief, Scrushy's lawyers asserted that Scrushy was prosecuted for making campaign donations (the jury, and appellate courts, have determined that the convoluted and concealed $500,000 transfer at the heart of the Scrushy portion of the Siegelman case was anything but a simple campaign contribution.)
            Scrushy argues that Siegelman's successor, Bob Riley, and Riley's Republican backers, did essentially the same as Scrushy and Siegelman, but were not prosecuted. Coody stated that Scrushy failed to prove that Riley was bribed, and noted that a jury determined that Scrushy had bribed Siegelman, following solicitation of the bribe from Siegelman.
            Scrushy's lawyers -- and in this one sees the utter desparation of their effort -- wheeled out the bizarre tale by Rainsville lawyer Jill Simpson that Karl Rove in some manner ordered the prosecution. They also trumpeted the prosecutions of several people who became part of a laughable "selective prosecution" scandal. These included Georgia Thompson, a state employee in Wisconsin; Paul Minor, a Mississippi trial lawyer prosecuted for bribing a judge; and Cyril Wecht, a coroner in Pennsylvania.
            If I may, a quote from my book, "The Governor of Goat Hill":
            For the sake of argument, let’s assume that Thompson, Wecht and Minor are all shining examples of rectitude and were nailed without cause by overzealous federal prosecutors. The fact remains that John Conyers and his committee assembled this national scandal with cases brought against a defeated washed-up former governor, a civil servant in Wisconsin, a Mississippi trial lawyer, and the coroner of a county in Pennsylvania.

            Coody sharply criticized this argument on several grounds, among them, that the examples didn't support the argument since Thompson, etc., were prosecuted.
            He wrote: "Scrushy fails to identify anyone who committed bribery but was not prosecuted. Scrushy has failed to meet the rigorous standard justifying discovery in aid of his selective prosecution claim."
            For that and other reasons, Coody denied the selective prosecution argument.

            2. The Judicial Misconduct Argument: As with everything here, there is a story behind the story. Rather than reinvent the wheel, here is a presentation of the "judicial misconduct" allegation from my book. This tells about an investigation, well after the trial's conclusion, by U.S. Postal Inspectors, regarding a series of apparently bogus e-mails sent anonymously to lawyers for Siegelman and Scrushy, and purportedly written by jurors during the trial.
            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 (trial judge Mark) 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.
            And, here, I turn to a blog I wrote in August, reporting the findings by Robert Hinkle, a federal judge in Florida appointed to consider allegations by Siegelman and Scrushy against Fuller, including the allegations of ex parte communications.

             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.

            In rejecting this demand, Coody pointed to Hinkle's findings on the claims against Fuller, as well as those of the 11th Circuit. He wrote that he "should not and will not revisit this issue."
            And: "The problem with this argument, however, is that Scrushy does not identify any prejudice that he has allegedly suffered (as a result of Fuller's minimal communication on the e-mail investigation.)"
            3. The Canary's Failure to Remove Herself Argument: Ever since he learned of an investigation, in 2002, and while still governor, Siegelman's been very publicly accusing U.S. Attorney Leura Canary of targeting him for political reasons. Her alleged motive is that her husband is head of the Business Council of Alabama, is a friend of Bob Riley's, and that he used her to harm Siegelman and, thus, help Riley
            One problem here, as Coody notes, is that the investigation started before Canary was appointed U.S. Attorney. After Siegelman made his accusations, Canary asked the Justice Department to determine if she had a conflict that would require her removal from the case. The department concluded that she did not, but she removed herself anyway.
            The allegations at the heart of this claim are that Canary remained involved in the case. Scrushy's lawyers cited four e-mails from Canary. One of the e-mails involved the re-assignment of a clerk working on the team that  was prosecuting the Siegelman case; another referred to a contract employee who was working on that case and others; and the third regarded funding for the case. It was a big case, and expensive, and Canary sought extra funding from the Justice Department.
            Coody found that, with these e-mails, Canary was simply serving in her role as the top administrator of the U.S. Attorney's Office, as opposed to becoming involved in the case. He also remarked that, elsewhere in their brief, Scrushy's lawyers contended (based on Jill Simpson's gibberish) that the decision to prosecute Siegelman was based high up in the federal government, which is to say, well above Canary's head.
            The judge seemed to be saying, "You can't have it both ways, guys."
            The fourth e-mail, unlike the others, was sent to members of the prosecution team. Canary had received one of Siegelman's many mass e-mails decrying the prosecution. She passed it on the prosecutors, along with a suggestion that they consider seeking a gag order on Siegelman's public comments.
            As Coody noted, the prosecutors did not seek a gag order. As such, Scrushy suffered no prejudice from Canary's e-mail. It would be better if she hadn't sent it, but it had no impact on the case, he determined. He found that Scrushy's lawyers provided the court with "no credible evidence that (Canary) directed, managed, influenced or controlled any aspect of the prosecution of the case."
            The harshest comments in Coody's ruling came in response to the assertion by Scrushy's lawyers that it was "reasonable to infer that other e-mails written or received by U.S. Attorney Canary which would prove her continued involvement in the case, and demonstrate further false statements by the Government intended to cover up this continued involvement (by Canary."
            Wrote Coody:

            "The problem with this contention is that it is rank speculation, and simply wrong speculation at that... In addition, the court has laboriously reviewed the documents provided to it by the government related to this issue. This is not a case in which there is any conflicting evidence. In this case, there is no evidence to support the defendant’s supposition that “other emails exist.” There is nothing in the material provided to the court that is contrary to the evidence already in Scrushy’s possession. This is not a matter of withholding any documents; there are no other documents. Accordingly, the defendant’s motion for discovery on this issue will be denied."

            4. Prosecutorial Misconduct Argument: The basis of this final effort is an assertion that one of the prosecutions main witnesses -- longtime Siegelman aide Nick Bailey -- was coached by prosecutors to alter his testimony, and that the FBI unlawfully failed to produced all its reports of interviews with Bailey (these reports are called FBI 302s.)
            In response to Scrushy's request, Coody ordered the Justice Department -- including the FBI -- to turn over every iota of information it had regarding Bailey. Coody reviewed it all, and found nothing to support Scrushy's claims.
            Bailey provided the defendants with a statement, and this was provided to Coody. He wrote that  nowhere in the statement does Bailey recant the testimony he gave at trial and "does not claim that government agents or prosecutors threatened or pressured him, and he does not contend that he changed his accounts of event in any manner previously undisclosed to the defense."
            The notebook maintained by Bailey's former lawyer, George Beck, also failed to provide information supporting Scrushy's claims, Coody wrote.
            Coody remarked that, "with no help" from Bailey, Scrushy's lawyers had to rely on affidavits by several people who know Bailey, including his long-time employer and Siegelman friend, Stan Pate. That name alone should indicate the weakness of Scrushy's argument here.
            Coody wrote that the declarations of Pate and others were "replete with inadmissible hearsay and not based on personal knowledge.."
            He stated that his review showed that the only documents not provided to the defendants before trial consisted of "internal prosecution memos related to the investigation or prosecution of this case and internal correspondence concerning relationships among and between prosecutors. These documents do not contain exculpatory information."
             For that and other reasons, Coody denied the "prosecutorial misconduct" element of the appeal, leaving Scrushy 0 for 4.

            Do you get the feeling that Scrushy, and Siegelman as well, have taxed the patience of the federal bench in Montgomery? Considering that they both face re-sentencing, is that such a good idea?
            I will argue as much in a blog I plan to post prior to next Wednesday, when Scrushy will appear before Fuller for re-sentencing. Fuller's actions regarding Scrushy -- which he signaled in a recent order to be discussed in the blog -- could very well signal what he will do with Siegelman when, as now appears likely, Siegelman faces the judge for his re-sentencing.


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