Tuesday, January 24, 2012

Scrushy's re-sentencing may forecast Siegelman's fate

Former Alabama governor will surely be paying close
 attention  to Scrushy's re-sentencing by Judge Mark Fuller

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             Scrushy, right, in a picture taken, at the earliest, AFTER discovering that the feds were investigating his role in the gargantuan accounting fraud that resulted in losses  counted in the billions of dollars by HealthSouth investors. Some  believe Scrushy's very public move to evangelical Christianity, and his focus on black congregations, was a ploy to win over jurors in the criminal trial in Birmingham. Thoughts such as these are characteristic of a type of person known as a "cynic."

        Though it's Richard Scrushy who is to be re-sentenced Wednesday (Jan. 24), the defendant with the most at stake may well be former Alabama governor Don Siegelman.
            Barring the unexpected, at some point, probably this summer, Siegelman, too, will appear before federal judge Mark Fuller for re-sentencing.
            A decision by Fuller Wednesday to reduce Scrushy's sentence would provide hope to Siegelman that the judge would, when the time comes, also reduce Siegelman's sentence.
            But the opposite is true as well. If Fuller doesn't trim Scrushy's sentence, it's hard to see how he would then reduce Siegelman's.
            And Siegelman's worst-case scenario is considerably worse, at this point, than Scrushy's.
            If Fuller doesn't shave any time off Scrushy's sentence, there would be no change in his presently scheduled release in June 2013 (with the final seven months at a halfway house, if I'm getting my facts straight).
            But for Siegelman, who is almost 66, no change would mean a return to prison for more than six years of a seven-plus year sentence he began, as did Scrushy, in July 2007.
            If a recent ruling by Fuller is any indication, Scrushy -- and, by extension, Siegelman -- has little cause to expect good news Wednesday.
            Before explaining, some necessary background for those who haven't been keeping up with the case.
            In early 2008, after serving nine months, Siegelman was released when a panel of the 11th Circuit deemed he and Scrushy had a reasonable chance on appeal of having their convictions overturned. Scrushy, due to misadventures while awaiting sentencing, and lying to his probation officers, was deemed a flight risk, and was not released.
            Fast forward to the present: As a result of the appeals by Siegelman and Scrushy, each had two counts removed from their ledger of guilty counts. On the day in July 2007 when they were sentenced, Scrushy had six guilty counts, and Siegelman seven.
            The number of counts is a key factor in the sentencing guidelines used by judges when issuing sentences.
            Had all the counts been removed, well, Scrushy would be out of prison, and Siegelman wouldn't have to worry about returning. Though that best-case scenario hasn't panned out, the removal of counts still mandates that they be re-sentenced.
            Thus, Scrushy is back in Alabama, and for the second time since being taken away by U.S. Marshalls back in July 2007 (his first time back was for the civil trial that resulted in a massive judgment against him and on behalf of HealthSouth stockholders.)
            Only Fuller knows what he will do Wednesday, and, for that matter, the judge may not have yet made up his mind.
            But on Nov. 1, he issued an order rejecting a request by Scrushy to be allowed out on bond pending the still outstanding appeal that is or will soon be filed by him and Siegelman with the U.S. Supreme Court. (For more on that, go here.)
            Among other things, Scrushy's lawyers argued that he should be released on bond because he had a reasonable chance to have the charges overturned by the U.S. Supreme Court; and because a reduction in his sentence was probable due to the removal of the two counts.
            In his order, Fuller disagreed with both assertions. He wrote: "The court concludes that a reversal or a reduced sentence less than the total of the time already served is not likely."
            When Fuller wrote that, he was in a pretty good position to know. He, after all, is the judge making the decision on the reduced sentence.
            There are two reasons I don't believe Fuller will reduce Scrushy's sentence, or Siegelman's; or, if he does, it won't be by much.
            The first reason is that, well, Fuller doesn't have to.
            Each man was sentenced to roughly seven years (Scrushy slightly under, Siegelman slightly above). For both, that was in the low to mid-range of the sentencing guidelines for the charges to which they were found guilty.
            Wrote Fuller in his November ruling: "Factoring in the reversals (on the two counts), Mr. Scrushy's Guidelines range at resentencing may be 78-97 months. Mr. Scrushy's 82 month initial sentence falls squarely within, and even edges toward the bottom of that Guidelines range."
            In other words, in terms of sentencing or, in this case, re-sentencing, the removal of two counts for Scrushy means little in terms of the range in the guidelines. The same is true for Siegelman (assuming failure of his appeal to the U.S. Supreme Court.)
            The second reason I don't expect Fuller to decrease the sentence for Scrushy (or Siegelman), is the behavior of both men, as well as, in some cases, their lawyers, ever since jurors found the pair guilty.
            The two defendants have, in court filings, in the media, in all manner of ways, not merely attacked but leveled serious charges of misconduct against the prosecutors, as well as Fuller, the jurors, all manner of people in the Justice Department, and too many others to name, including, laughably, Karl Rove.
            Rove's naughty-boy reputation made him a perfect villain. Alas, he's innocent as a babe on this one, as, I feel sure, Siegelman and Scrushy well know. But gosh did they sell it well!
            I probably won't make it to Montgomery for Wednesday's hearing.  I confess to being almost as eager to hear what Fuller says as how he rules.
            Will the judge --  silent throughout this charade put on by the defendants, their lawyers and toadies -- address the tsunami of nonsense that has swamped this case since the New York Times and Time magazines introduced the world, to say nothing of the Alabama political establishment, to Rainsville lawyer Dana Jill Simpson.
            It was she, with her fantastical imagination, who introduced the now famous claim that the White House, through Rove, ordered the Justice Department to prosecute Siegelman and others. I don't know of anyone who is sane and has any grasp of the facts that actually believes this, but goodness, did it take flight.
            Really and truly a sad chapter in reportage for people at the New York Times, Time, "60 Minutes," the once proud but now decrepit Harper's magazine and many others in the national media. As bottomless pit awful as was their reporting, the greater sin is that they've never acknowledged it, as in, admitted their mistakes, even issued apologies.
            They demand such things of politicians, just not themselves. (And I am a paying online subscriber to the Times, the greatest newspaper in the world, English speaking anyway, and by miles the most informative.)
            If you wish to know the full story, I heartily recommend that you go to this link.
            Update: I need to stop predicting what will happen next in this case. Today, Fuller cut a year off Scrushy's sentence. Whether this indicates he will cut Siegelman's sentence is anyone's guess, but certainly Fuller's decision Wednesday is far better news for Siegelman than if the judge hadn't reduced Scrushy's sentence.
     According to one report, Scrushy apologized for attacks by his legal team on Fuller. Leslie Scrushy was in attendance. She has, one supposes to her and his credit, stood by her man in the 4-1/2 years since he's been in prison.
    Here are links to three stories on the hearing, from the Montgomery Advertiser, the Birmingham News, and the local FOX TV station.

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