A Smoking Gun Incriminates the Judge Who Ruled Against Don Siegelman

Welcome to the ethically challenged courtroom of Judge Mark Fuller, who waited 18 months before providing defendants with the trial transcript necessary before filing any appeal.
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Before commencing deliberations, jury foreman Sam Hendrix began each day with his fellow jurors by holding hands and saying a prayer. They prayed for the defendants, including former Governor Don Siegelman, who had been indicted for bribery and government corruption. "We didn't want to crucify people," Hendrix told the Auburn Villager, "but we did want to send a message."

As for the jury comprised of five whites and seven blacks, "we were all really good friends," Hendrix told the Montgomery Advertiser in July 2006. "There was a bond between us. It never got personal. I think we were very fortunate that we had a very congenial group of people who respected each other and listened to each other."

Katie Langer, who also sat on the jury, agreed. "We really did get along," she told the Associated Press. "By the end we looked forward to going. We were bringing pictures in of our families."

Hendrix, who works as a fundraiser for Auburn University, and Langer, who teaches gymnastics, were the only two jurors in the Siegelman trial who spoke to the press. Each of them gave multiple interviews. Both dismissed any notion of rifts among jurors, even though the jury itself had twice notified the judge that it was deadlocked. Both insisted that it was simply a matter of needing sufficient time to adequately evaluate each of the charges against each of the four defendants.

Other jurors saw it differently. Here's how one juror, in a sworn affidavit, describes the deadlock vote:

"Five for guilty, five for not guilty, and two undecided. The jurors 100% not guilty were [redacted]. Two jurors had hostile words at each other and at this time, the foreman [Hendrix] slipped a note to the judge without our knowledge and told him that we were deadlock.

[Hendrix's private note said that some on the panel were being "lackadaisical."]

"The judge said that he could keep us until the next 4th of July and we needed to have a unanimous decision. Our whole objective changed at that point after nine days, we felt he applied extreme pressure on us to get us to make a unanimous decision. We all decided to agree with whoever was in charge so we could leave and go home. I told everybody I was through deliberating - do whatever you want to do. Just tell me which way I should vote so I can go home. The stake of the two men's lives were totally irrelevant at this point for all of us, and we had a more pressing objective in mind - just to leave and go home for good. We did not vote our conviction. We voted based on the pressure applied by the judge."

In a post-trial hearing into allegations of juror misconduct, seven other jurors admitted knowing that Hendrix and Langer had used information not available to the other jurors, which they used to direct the discussion and push the holdouts into voting guilty.

If Hendrix and Langer told stories that jibed, it may have been because they compared notes via email. They purportedly used Hendrix's address at Auburn and Langer's gmail account. Evidence, sent anonymously to defense counsel after the trial, shows that the Hendrix and Langer sent each other private messages prior to and during deliberations. A comparison between their interviews and their e-mails seems almost like a Southern cliché. Sweetness and sanctimony in public, nasty and conniving in private.

Langer wrote to Hendrix:

gov & pastor [i.e. defendant Richard Scrushy] up s--t creek.

good thing no one likes them anyway. all public officials

r scum; especially this 1. pastor is reall a piece of work

...they missed before, but we won't

...also, keep working on [juror number] 30...

will update u on other meeting


Earlier that evening she wrote:

Judge really helping with jurors

still having difficulties with #30

...any ideas???

Keep pushing on ur side.

Did not understand your thoughts on statute

But received links.


Those purported messages were sent on Sunday June 25, 2006, three days after Judge Mark Fuller, informed that jurors were deadlocked, sent them back to continue their deliberations.

Hendrix and Langer's private, and illegal, contacts had begun almost a month earlier. On May 29, 2006, more than two weeks before the jury was allowed to begin deliberations, Katie wrote to Hendrix:

I agree some of the kounts r

confusing 2 our friends.

Chek text.30/38 still off trac.

But were the e-mails bona fide? As we learned last week, the saga of the e-mails has many sinister twists and turns. What emerged is a smoking gun that incriminated prosecutor Louis Franklin and Judge Fuller. They, like Hendrix and Langer, connived behind the backs of others.

Some of the nine messages had been sent anonymously by fax in July 2006. My guess is that the sender was someone on the development staff at Auburn. (It's a very small world in Alabama. Katie is an Auburn alumna. Auburn is run by its Trustees, all of whom are appointed by Governor Bob Riley. According to sworn testimony before the Judiciary Committee, the governor's son, Rob Riley, was on the call in which Republican operative Bill Canary said that Karl Rove had arranged with Justice to destroy Siegelman.)

Siegelman's and Scrushy's lawyers asked the Court if they could investigate the authenticity of the purported emails. Prosecutors were opposed. Judge Fuller denied the motion.

Defense counsels then asked the Court to investigate the emails' authenticity. Prosecutors were opposed. Judge Fuller denied the motion.

Defense counsels then asked the court to order the ISPs to protect the information in case an appellate court would elect to investigate the emails' authenticity. True to form, Judge Fuller denied the motion. He expressly forbid both the prosecution and the defense from investigating the authenticity of the emails, threatening any party who violated his order with criminal contempt.

On December 12, 2006, Judge Fuller ruled, in the face of abundant evidence of jury tampering, that the guilty verdict was not tainted and that it should stand. He ruled as a matter of law that neither the Court nor any other party was authorized to investigate the authenticity of the emails.

Nine days later, people got additional copies of emails via postal delivery. They were sent counsel for the defense. And, as we learned just recently, copies were also sent to Hendrix, Langer and co-workers of Hendrix and Langer.

We learn this twist in the saga because of a Justice Department letter obtained by Scott Horton of Harper's, who has been on the Siegelman case for some time. The letter reveals that, unbeknownst to the defendants, Hendrix contacted Judge Fuller, who directed him to the U.S. Marshals Service. Langer also contacted the U.S. Marshals Service.

The Marshals Service brought the letters to Louis Franklin, who directed an attorney in his office, not involved in the Siegelman case, to oversee an investigation as to who sent the letters to the co-workers. Over the next several weeks, a Postal Inspector interviewed Hendrix, Langer and some co-workers.

"The Postal Inspector also compared the purported emails to test emails sent from and received by Juror 40's [Langer's] email account. Based on a comparison of the emails and information obtained from the jurors and their co-workers, including information from a co-worker of Juror 7 [Hendrix] who monitored Juror 7's emails during trial and did not see any incoming emails from Juror 40 [Langer], the Postal Inspector concluded that the purported emails were not authentic and had been forged." July 8, 2008 letter from Patty Berkamp Stembler, Chief, Appellate Section, Criminal Division Department of Justice

Three things suggest that the Postal Service inquiry was a sham:
1. The stated purpose of the inquiry was to determine who sent the letters, not the authenticity of the emails. Yet the Postal Service looked into the matter anyway.
2. The emails sent to Hendrix's work address at Auburn could have been easily authenticated by the university's IT department. The most obvious, commonsensical approach -- at least to this non-techie - was not taken.
3. Then there's the obvious red herring: "information from a co-worker of Juror 7 [Hendrix] who monitored Juror 7's emails during trial and did not see any incoming emails from Juror 40 [Langer]." The emails were always sent late at night, after 10:00 p.m. Of course Hendrix's coworkers would never see the messages, if they were deleted.

In early April 2007, the Marshals Service informed Judge Fuller that the Postal Inspectors had concluded that the purported emails were forged.

So the prosecutor took actions which constituted criminal contempt. By proxy, he ordered a secret investigation into the authenticity of the emails, and had secretly informed Judge Fuller of information that was prejudicial to the defendants, that the emails were deemed to be forgeries.
And Judge Fuller kept it all one big secret. Welcome to the ethically challenged courtroom of Judge Mark Fuller, who waited 18 months before providing defendants with the trial transcript necessary before filing any appeal.

In Congressional hearings on July 23, 2008, Rep. Artur Davis of Alabama had pointed questions about these latest revelations for Mukasey, who engaged in Gonzales-like avoidance. Here's how Mukasey summed it up in his testimony.

"What happened was the jurors' co-workers got copies of the letters that were already before the judge. They turned them over to the jurors. The jurors turned them over to the marshals.

"The marshals didn't know what to do with them, turned them over to the U.S. Attorney's Office, and they gave them -- since they had been sent by mail, gave them to the postal service. And then the U.S. attorney who was involved in the prosecution turned the whole matter over to somebody else who was not at all involved. And the postal service reached whatever conclusions they reached, apparently told the marshals service about it, and the marshals service told the judge about it.

But then...

"I don't know what role those copies of e-mails played in the larger matter that's under review by OPR [Office of Professional Responsibility] , so I can't -- I'm going to get a report from OPR at some point about this whole matter.

"I may be called on, if there's a finding of misconduct, to pass upon whether there ought to be a sanction against somebody or not and, if so, what it should be. So I can't really start offering opinions about..."

Till then, prosecutor Louis Franklin is still in charge.

And still Mark Fuller presides over Siegelman's case.

What a disgrace.

By the way, I checked out the email addresses of Hendrix and Langer. They still work.

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