Cruel Justice: The Case of Don Siegelman

Of all the egregious instances of misconduct by the Bush administration's Department of Justice, no case epitomizes the abusive, vindictive, and politically-driven agenda as much as the prosecution of Don Siegelman.
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Of all the egregious instances of misconduct by the Bush administration's Department of Justice -- its ruthless pursuit of voting rights cases and government corruption cases against Democrats and firing U.S. attorneys who resisted -- no case epitomizes the abusive, vindictive, and politically-driven agenda as much as the prosecution of Don Siegelman. In 2002, Siegelman, a Democrat, was governor of the blood-red state of Alabama and was predicted to win re-election. But according to sworn and strongly-corroborated testimony before the House Judiciary Committee, Alabama's top Republican operative Bill Canary contacted Karl Rove and instigated the Justice Department's prosecution of Siegelman. Rove contacted the Public Integrity Section, and Canary declared confidentially that "his girls would take care of Siegelman." When asked who "his girls" were, Canary replied Alice Martin, the United States Attorney for the Northern District of Alabama, and Leura Canary, the United States Attorney for the Middle District of Alabama. Leura Canary, by the way, is Bill Canary's wife.

Rumblings about the Justice Department's investigation of Siegelman permeated the media, and cost Siegelman the re-election, but by a hair; Republican Bob Riley prevailed by a few thousand votes, mysteriously discovered in a polling place in a rural county vacated by Democratic poll-watchers after polls closed. Siegelman, polls showed, was heavily favored to win a re-match against any Republican opponent. But that was before federal prosecutors revved up their hunt.

First, Alice Martin, one of Bill Canary's "girls," indicted Siegelman in 2004 for bid-rigging on state contracts. But that indictment was dismissed almost as quickly as it was brought by Federal District Judge U.W. Clemon, one of the most senior judges in Alabama. Judge Clemon, in throwing out the indictment for lack of evidence, wrote that the prosecution "was completely without legal merit" and in a further remarkable statement, said that the prosecution of Siegelman "was the most unfounded criminal case over which I presided in my entire judicial career."

However, Bill Canary's other "girl," his wife Leura, had much better success. Her office indicted Siegelman for numerous RICO violations and a bribery count for accepting a large donation to a state lottery campaign to fund free tuition for high school graduates and appointing the donor to a seat on the state medical board, a position he had held under three previous administrations. The bribery charge appears to have been the first bribery case ever brought by the Justice Department that was predicated on an issue-advocacy campaign contribution in which the alleged beneficiary, Siegelman, received not one penny. There was another big difference in the two prosecutions - a different federal judge. Presiding over the Canary prosecution was Judge Mark Fuller, who according to sworn testimony before the House Judiciary Committee, was handpicked by the Justice Department to "hang Don Siegelman." Fuller had been investigated by Siegelman for financial fraud when Siegelman previously was Alabama's Attorney General.

The jury deliberated for 11 days, repeating several times that it was "hopelessly deadlocked," before finding Siegelman guilty of the one bribery count, and acquitting him of the 22 RICO counts. Fuller had given the jury a questionable legal instruction by omitting one of the key legal requirements to convict of bribery -- the need for an explicit promise of understanding. Indeed, under Fuller's deficiently-worded instruction, every U.S. President who has ever appointed as an Ambassador a wealthy donor who has contributed heavily to the president's campaign would be guilty of bribery. And the incendiary RICO corruption counts - all 22 of them? The jury acquitted because proof was non-existent. Indeed, it strongly appears the motive of the federal prosecutors in including the RICO counts in the indictment was for the inflammatory purpose of contaminating the jury by portraying Siegelman as part of a corrupt conspiracy and thereby improving their chances of getting a conviction on something.

Characterizing this case as "extraordinary," but deferring to the jury's verdict -- which appellate courts invariably do -- the 11th Circuit Court of Appeals upheld the verdict, but ordered a hearing on two claims. One claim challenges Judge Fuller's astonishingly harsh sentence that dramatically increased the offense level to three times what the sentencing guidelines mandate -- from a five-year sentence to a 15-year sentence. The second claim relates to the "Canary Connection." When news of her husband's possible involvement in Siegelman's prosecution surfaced, Leura Canary ostensibly disqualified herself from the case for her obvious conflict of interest. But it was subsequently revealed that she didn't honor that pledge; she remained heavily involved in the investigation and prosecution of Siegelman. Indeed, Leura Canary's continued involvement violates a fundamental precept in American criminal law -- that a prosecutor must remain impartial and disinterested in the prosecution of a case. But Leura Canary had a direct financial interest in the success of her husband's client -- the Republican candidate for governor - and in Siegelman's electoral defeat. Judge Fuller rejected the claim that Canary participated in the Siegelman prosecution, ruling that he found no prejudice, but in Humpty-Dumpty fashion denied Siegelman the opportunity to discover evidence in the prosecution files that could prove he was prejudiced by her continued involvement. Among the items of proof offered by Siegelman to prove Leura Canary's continued prejudicial involvement in the Siegelman prosecution are the following:

Canary emailed members of the Siegelman prosecution team as they were preparing a superseding indictment and advising them that Siegelman and his campaign supporters conducted a survey showing that 67 percent of Alabama voters believed the prosecution of Siegelman was politically motivated, advising "Perhaps grounds not to let him discuss court activities in the media?" Following this email the prosecution sought in its very first pretrial motion an order prohibiting Siegelman from presenting evidence, testimony, or argument "that politics was a motivating factor in the government's decision to prosecute" him, adding that "for months Siegelman has inundated the media with accusations that his prosecution is the result of a political witch hunt."

Members of the prosecution team noted that Canary approved the assignment of a particular employee to work on the Siegelman case.

An employee in Canary's office -- Tamara Grimes -- alleged that Canary maintained direct connection with the prosecution team, directed actions in the case, and monitored the case through members of the prosecution team and the First Assistant U.S. Attorney.

Canary rewarded with a personal acknowledgement every milestone in the Siegelman case. She also hosted a gala party at a fancy restaurant when the superseding indictment was unsealed. She hosted a similar celebration when Siegelman was convicted.

Canary and the first assistant wrote all the press releases in the case under the signature of Acting U.S. Attorney Franklin.

Canary's close associates in the office communicated Canary's suggestions to the Acting U.S. Attorney.

Grimes, the employee who blew the whistle on Canary's continued involvement, was subjected to retaliation by Canary and others.

Respected observers from both political parties have condemned the legality of Siegelman's prosecution on numerous grounds. Over 100 former attorneys general from both political parties have decried the legal and ethical irregularities that contaminated the Siegelman prosecution, as have widespread commentary from journalists, academics, and disinterested observers. Former Arizona Attorney General Grant Woods, a Republican, stated: "This was a Republican state and Siegelman was the one Democrat they could never get rid of." Former Alabama U.S. Attorney Doug Jones stated: "It appeared that [government] agents were not investigating any allegations of a crime, but were fishing around for anything they could find against [Siegelman]." Former Republican Congressman from Alabama Parker Griffith called the Siegelman prosecution a "political assassination."

The prosecution of Don Siegelman may be the most outrageously unfair "corruption" prosecution ever brought by the Justice Department, ranking much higher than several other recent inept and misguided prosecutions -- late Senator Ted Stevens, John Edwards, the River Birch defendants in New Orleans, and the Alabama casino operators. Why President Obama has refused to grant Siegelman a pardon or commute his sentence is incomprehensible. Yes, it takes a certain amount of political courage to grant a pardon or commute a sentence, and put some type of closure to this terribly misguided prosecution. Siegelman should not serve one more day in jail. But whatever happens in this misbegotten case, there is a dramatic lesson for anyone interested in seeing how federal criminal justice operates -- if any lesson is really needed. The Siegelman case shows how the worst in partisan politics, mixed with mindless and overzealous prosecution, can make a poisonous brew that produces cruel justice.

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