Give Hizzoner a Break!

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For Curran Interview

With WPMI on

Campaign Spending

 Put Your Mouse

  HERE 

FOR THE SCOOP ON THE

Sam Jones

Probe

And there You Shall Find

 Commentary,

Reports and

ALARMING VIDEO,

Even, Dare We Say,

SATIRE

On Case Against

Mobile's Mayor

Roger Bedford parties with campaign bucks

           The immense amount of scrutiny into Mobile Mayor Sam Jones campaign expenditures prompted me to present some perspective, which is to say, to show that Jones expenditures stand out only when examined alone. 
            Links to two, uh, unusual but I think effective videos and a story that focuses on spending by State Sen. Roger Bedford can be found here: http://www.eddiecurran.com/TheSamJonesProbe.htm


             If you are only interested in the story about Bedford, go here: http://modmobilian.com/2012/06/08/eddie-curran-on-the-campaign-trail-with-roger-bedford/


                If Bedford's spending form his campaign funds is legal, then there really is no such thing as illegal spending of campaign funds. If that sounds like a strong statement, then read the story. 

Open Letter to Mobile DA Ashley Rich

"There was only one package of bread purchased by the campaign in 2011."

 -- From, "Mayor's Spending Habits Appear Hard to Break," by Rob Holbert, in Lagniappe. His reporting ignited the

campaign finance scandal involving Mobile Mayor Sam Jones, and spawned an apparent criminal investigation of the mayor.

.

An Open Letter to Mobile District Attorney Ashley Rich

Subject: Request for Clarification of Your Campaign Expense Reports To Bring Them in Compliance With the Alabama Fair

Campaign Practices Act; and Request for Supporting Documentation of Your Campaign Expenditures

               Go to EddieCurran.Com to Read Letter.

Riley Way Late in Reporting Income

  

"Considering various efforts by Riley the Governor for 

at least some of  these  lobbying clients, it naturally 

would be interesting to see how much  if anything  they

 paid him so soon after he left the governor's office."

If former Alabama Governor Bob Riley ever gets around to

 filing his past-due ethics forms, his  reports will likely include 

payments from an Orange Beach condo developer.

               A suggested question for reporters who cover politics in Alabama:

               Why hasn't former Gov. Bob Riley filed his annual financial disclosure with the Alabama Ethics Commission for either 2010 or 2011?

               Some months ago I requested his form for 2010 from the Ethics Commission and was told he had not filed it, which I found surprising. Recently, the commission went "on-line" with a searchable database of ethics filings. The database includes annual reports for 2011, which came due on April 30. Riley's reports for 2008 and 2009 are there, but still no 2010, nor anything for 2011.

               For those not familiar with the process, each year, in late spring, local and state elected officials, non-federal public employees with salaries above $50,000 and members of certain boards must report their outside income from the previous year by completing a, “Statement of Economic Interest.” Among other requirements, officials must list sources of income and monetary ranges from those sources, starting at, “Less than $1,000,” and climbing to "more than $250,000."

               To make sure there wasn't an error, I called the Ethics Commission Monday and was told that if Riley had filed reports for 2010 and 2011, then the reports would be on-line.

               Here are some justifications for a story on Riley's apparent failure to file his annual reports.

               1. The law requires it. Riley was an elected public official for the entirety of 2010 and for the first few weeks of 2011, when his successor, Robert Bentley, took office. As such, the law requires that he file reports. The deadline for Riley's 2011 report is three weeks past. The deadline for the 2010 report was more than a year ago.

               As a comparison, in spring 2003, former Gov. Don Siegelman filed his annual report for 2002 (his last full year in office). The following spring, Siegelman filed his annual report for 2003, when he was governor for only the first few weeks of the year, until Riley's inauguration.

               For another comparison, I checked on former Attorney General Troy King. Like the governor, the outgoing attorney general serves the first few weeks of the year when his successor takes over. Last spring  King filed for 2010, and recently filed his report for 2011, the year when he served but a few weeks.
               2. Riley, to his credit, called a special session at the end of 2010 and, as a result, the Legislature passed laws that strengthened the ethics law and brought more transparency to state campaign laws. It is, then, surprising that Riley has not filed his annual reports. Doing so is a basic to say nothing of widely known requirement of the ethics law that existed long before the 2010 upgrade.

               3. Some six or seven months after leaving office, Riley raised eyebrows by registering as a lobbyist for the following clients: Mobile's Austal USA, EADS North America, VT Systems Inc.; Gulf Coast Asphalt Co. and Brett/Robinson Real Estate Development Co.

               As governor, Riley was heavily involved with some of those companies on economic development matters and perhaps other issues as well.

               The most startling client on the list was Brett/Robinson. In November 2010 -- near the end of Riley's tenure as governor -- news reports announced that BP had agreed to pay Brett/Robinson a whopping $37 million. This was to satisfy the company's claims of lost sales at its Phoenix West condominium development because of the oil spill.

              A story reporting the $37 million deal quoted Jim Thompson, a lawyer for Brett/Robinson, saying the settlement was pushed along by elected officials, including Riley and U.S. Sen. Jeff Sessions.

               ''They stepped up to the plate and swung heavy bats,'' Thompson said of Riley and Sessions.

               Considering various efforts by Riley the Governor for at least some of these lobbying clients, it naturally would be interesting to see how much if anything they paid him so soon after he left the governor's office.
               Once that information is in hand -- as I have to assume it will be, since the law demands it -- it won't be unreasonable for the media to ask Riley what he's done for the companies in his role as lobbyist. He won't be compelled to answer, but certainly the questions aren't unfair. He sort of asked for the questions by seeking the business from these companies or agreeing to their requests that he lobby for them -- however the partnerships came about.

               It's understandable that someone who only served for a few weeks in 2011 could forget, some 16 months later, of his or her requirement to file his report. Still, they must file. And there is  zero excuse for Riley's failure to file for 2010.

               If Riley intentionally did not file, for 2010 or 2011 or both, well, I suppose there could be repurcussions for that.

            The suggestion at the beginning that the Alabama media should ask about this is not a criticism of the media. In fact, the Birmingham News has done an excellent job of "watch-dogging" Riley's fledgling lobbying career, with regular stories about his client situation on the state and federal level. In that first story, in August 2011, Riley told the News that he set up his lobbying firm, called Bob Riley and Associates, to "be a partner with, or help when I can, this administration, the governor, and the Legislature" especially in economic development and education reform.

               He made it sound like a charitable undertaking.

               I will confess that I was quite disappointed upon reading that story and the subsequent reports. Riley truly did, with his ethics and campaign reform legislation -- and before that, strong bid requirements and public reporting of state spending -- do much to clean up Alabama politics.

               I also was a fan of his courageous efforts against Milton McGregor's blatantly illegal "electronic bingo" operations and the sleaze cloud that enveloped Alabama as long as McGregor was allowed to operate.

               Riley, though, knowingly put his reputation in peril by becoming a lobbyist and signing up, as clients, companies that he had helped while governor.

               It seems as if more than his reputation could be in peril if he doesn't move quickly to file his ethics reports for 2010 and 2011 and convince anyone who might ask that it was an oversight, and not an intentional effort to bypass the law.

    (Note: This occasional blogger, when he blogs, does it for free, as in, as a charitable undertaking. However, you can help him feed his children by going Here or Over Here.)

Take this Quiz, Mr. Will!

A Letter to George Will

   George Will

      Yesterday the Washington Post published a column about the Siegelman case from, of all people, George Will. He is widely syndicated, and the column was assuredly in papers throughout the country. Here is a link to the column: 
http://www.washingtonpost.com/opinions/is-it-bribery-or-just-politics/2012/02/09/gIQA4hy34Q_story.html

        It began:

      All elected officials, and those who help finance elections in the expectation that certain promises will be kept — and everyone who cares about the rule of law — should hope the Supreme Court agrees to hear Don Siegelman’s appeal of his conviction. Until the court clarifies what constitutes quid pro quo political corruption, Americans engage in politics at their peril because prosecutors have dangerous discretion to criminalize politics.

        
             Upon completion, I immediately summoned Sancho for another frontal assault on the national media windmill that, to date, has survived intact, wholly unharmed from my offensives.
            The following letter was hastily written and sent to the e-mail address provided at the end of Will's column. First, though, allow me to make note of Will's early use of the phrase, "Rule of Law." That one never fails to set my bullshit detector pulsating  bright red. What it really means is,  "The Rule of Law, as I see it, and as it supports my particular ideology, is...."
             But that's tangential. Here's the letter George Will is unlikely to see, much less read:
         

From : Eddie Curran

Mobile, AL

Phone: 251-454-1911

Author: “The Governor of Goat Hill: Don Siegelman, the Reporter Who Exposed His Crimes, and the Hoax that Suckered Some of the Top Names in Journalism.”

E-mail: eddcurran@aol.com

Web-site for book: http://www.eddiecurran.com/home.html

               Dear Mr. Will,

              

               As a former reporter – in fact, the one who did the stories on the Siegelman/Scrushy donations – I realize there are times when someone approaches a journalist with a set of facts that support a storyline, and makes a sale, so to speak. I suspect that happened here. I don’t believe there is any way that you could both have a grasp of the bizarre nature of the $500,000 “campaign contributions” in this part of the Siegelman case and then characterize the case as you did.

               My guess is that you did not even trouble yourself to read the 11th Circuit’s opinion upholding the bribery elements of the Siegelman case.

               If you are unable to answer the following questions, it means that you are too unfamiliar with the case to be qualified to offer the opinion you offered.

               1. Were the two $250,000 “campaign contributions” publicly disclosed in a timely fashion, as is required of campaign contributions? If not, when were they disclosed, and why?

              

               2. Were the “contributions” disclosed on the “Lottery Foundation’s” public tax returns, called 990s? If not in a timely fashion, why not? (For that matter, did the Foundation file and make available its 990s?)

              

               3. Was there testimony at trial that made the case for an explicit deal between Siegelman and Scrushy?

              

               4. Can you characterize any of that testimony?

              

               5. Can you identify the name on the check – the donor -- of the first $250,000, or provide any of the circumstances surrounding that check? For example, are you familiar with the pivotal role played in getting that money to HealthSouth, and from there to Siegelman, by New York-based investment bankers with UBS Warburg?

              

               6. Can you identify the person who testified: “He said that, you, meaning me, was ‘going to be fucked’ if I don’t figure out a way to make the donation?” Do you know who the person is who said that (to the person who gave the testimony), and can you describe the context in which it was said?

              

               7. Are you aware that a Maryland healthcare company gave the first $250,000? Do you know why?

              

               8. Do you believe, as apparently does the NY Times and “60 Minutes,” that Karl Rove in some fashion directed the Justice Department to prosecute Siegelman?

               9. Was Siegelman a former attorney general, and a member of the group of former attorneys generals who lobbied heavily for support of that group? How many were Republicans? Do you think this was part of a public relations effort? How many of those signees do you think could answer any of the questions in the quiz above, which is only scratching the surface.

              

               10. Did Siegelman or Scrushy testify at trial?

              

               11. Do you believe it should be legal for a public official to link public action on his part to financial acts by another party, whether as outright gifts of money, campaign contributions, or such as the matter in this case (an animal all its own, really, that being one reason why this case hardly seems a good fit for the Supreme Court to address the matter.)

               Siegelman, incidentally, also has another charge outstanding against him that has nothing to do with the Scrushy matter. Many of the worst things he did were not included in the prosecution, but that’s another matter. I feel sure you know some people involved in Republican politics in Alabama. You might ask them what they think of Siegelman, and not, was he liberal or conservative, but corrupt, to say nothing of someone who routinely threatened donors with retribution should they not give.

               I doubt you have seen any of this, but I figured it wouldn’t hurt to try.

               Sincerely,

               Eddie Curran

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

             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.

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.