Articles on this Page
- 12/12/14--04:10: _Why did a federal p...
- 12/14/14--16:59: _Tomorrow's hearing ...
- 12/15/14--08:35: _Sonny Reagan's forc...
- 12/15/14--13:24: _Today's Siegelman h...
- 12/16/14--04:59: _Rob Riley appears t...
- 12/17/14--04:56: _Judge Bill Pryor's ...
- 12/18/14--04:20: _Rollins grandchildr...
- 12/18/14--13:37: _New judge in Siegel...
- 12/22/14--04:30: _Courts continue to ...
- 01/05/15--04:11: _We might have track...
- 01/06/15--06:21: _Why is an easy deci...
- 01/07/15--04:35: _Siegelman lawyers c...
- 01/12/15--04:30: _Here is more eviden...
- 01/12/15--15:05: _Ted Rollins and his...
- 01/13/15--04:20: _Oral arguments in S...
- 01/14/15--04:22: _U.S. 11th Circuit h...
- 01/15/15--04:35: _Alabama Supreme Cou...
- 01/19/15--04:22: _Confusion reigns as...
- 01/20/15--07:32: _Jeffrey Toobin's ca...
- 01/21/15--04:41: _Rob Riley's communi...
Riley was serving as campaign manager for his father, Bob Riley, who was Siegelman's chief political opponent at the time. The revelation seems to support claims that Siegelman supporters have been making for years--that unlawful political motivations played a pivotal role in the prosecution.
Adam Zagorin wrote the article, titled "Justice Department Downplays Evidence of Politics in Probe of Governor," for Project On Government Oversight (POGO). The information about Rob Riley is included in a letter, dated June 3, 2010, from Assistant Attorney General Ronald Weich to U.S. Representative John Conyers (D-Mich.), who was then chair of the House Committee on the Judiciary. (See full letter at the end of this post.)
A Justice Department internal affairs unit, the Office of Professional Responsibility (OPR), was critical of several government attorneys involved in the Siegelman case, but concluded that the evidence "did not establish that political motivation played a role" in the case.
Why would a prosecutor contact the campaign manager for Siegelman's primary political opponent--if, in fact, politics were not involved? Why would Rob Riley's correspondent refer to himself as a "conservative prosecutor"?
Here is Zagorin on the communications between a member of the prosecution team and Rob Riley:
In 2002, during the Justice Department’s investigation of Siegelman’s administration, a federal prosecutor emailed the son and campaign manager of Siegelman’s principal Republican opponent updating him on the confidential probe, according to a Justice Department document obtained by the Project On Government Oversight and reported here for the first time.
In the email, the prosecutor said he had been “thwarted” after starting an investigation “into the Siegelman administration.” He added that it was “frustrating for me and a small group of like minded conservative prosecutors” to “fight the tide in order to do the job we are sworn to do.”
Many questions remain unanswered, Zagorin reports, in part because the Department of Justice (DOJ) apparently tried to hide information from Conyers and others. Many of those unanswered questions involve Rob Riley. Writes Zagorin:
In listing the people OPR interviewed, the Justice Department letter summarizing the probe does not name Rob Riley, the son of and campaign manager for Siegelman’s political rival Bob Riley and the recipient of the “like minded conservatives” email. As a result, it is unclear whether OPR contacted him.
The DOJ letter also offers no indication of why the prosecutor emailed Riley in the first place, and on whose instructions, if anyone’s. Nor does it say whether Riley replied or took any subsequent action. It does not explain how the “small group of like minded conservative prosecutors” fit into the picture, or why the prosecutor injected his own political leanings and those of his colleagues into the matter.
The unanswered questions also include who may have “thwarted” the conservative prosecutors and why, and what penalty the prosecutor faced, if any, for sending the email.
“I do not recall receiving the email in 2002, but I had nothing to do with the U.S. Attorney’s Office pursuing charges against Don Siegelman,” Rob Riley told POGO, noting that the contact would have occurred more than a decade ago. “I also do not recall being contacted by OPR one way or the other.”
The Conyers letter criticizes former Alabama U.S. attorneys Leura Canary and Alice Martin, who both oversaw prosecutions against Siegelman. The DOJ concluded, however, that no substantive discipline was merited:
The letter summarizing OPR’s investigation into prosecutors’ handling of the Siegelman matter shows that the internal watchdog singled out four prosecutors for at least some criticism, but nonetheless concluded that “political motivation” played no role in the case.
One of those singled out was Leura G. Canary, an experienced DOJ career lawyer who served as U.S. Attorney for Alabama’s Middle District, where Siegelman was tried and convicted.
A few months before Bob Riley defeated the incumbent Siegelman in the 2002 election, Canary formally recused herself from the Siegelman investigation. She did so following accusations, widely disseminated by the Siegelman camp, that she had a variety of political conflicts of interest. For example, citing public records, a lawyer for Siegelman protested that one of Siegelman’s political opponents had paid fees to Canary’s husband, a prominent Republican consultant.
In a letter explaining Canary’s recusal, Deputy Assistant Attorney General David Margolis wrote that DOJ had found no conflict, but that out of “an abundance of caution,” Canary would withdraw from the case anyway. She issued a similar statement.
Soon after she contacted the prosecution team, it did in fact seek such a gag order, though a judge refused to grant one.
OPR minimized this example of Canary’s continued involvement in the case. It found that “Canary did not commit professional misconduct or exercise poor judgment in connection with her recusal from the Siegelman case.”
As for Martin, OPR found she exercised poor judgment in a minor administrative matter:
At another point, the DOJ letter refers to a separate attempt in 2004 by the Northern District of Alabama to prosecute Siegelman for corruption. A federal judge with nearly 30 years tenure threw that matter out of court, later calling it “completely without legal merit” and “the most unfounded criminal case over which I presided in my entire judicial career.” Citing the 2004 case, the judge wrote a letter to Attorney General Eric Holder calling for an investigation of prosecutorial misconduct in Siegelman’s subsequent 2006 conviction.
OPR had a different view. It concluded that, while the evidence in the 2004 case was “weak, the decision to prosecute. . .did not violate the Principles of Federal Prosecution.”
According to the DOJ letter, OPR had a procedural complaint. It found that the U.S. Attorney who brought the case, Alice Martin, “exercised poor judgment by failing to comply with Department guidelines” requiring her to “provide timely notice” of Siegelman’s indictment to DOJ headquarters.
Reached by POGO, Martin said, “We exercised great judgment in bringing the case, after a grand jury indicted Siegelman.”
Were politics at work in the Siegelman case? POGO shows that the DOJ considered Lanny Young to be an unreliable witness regardomg incriminating evidence against Republicans Jeff Sessions and Bill Pryor. But the department used Young extensively in the case against Siegelman. Writes Zagorin:
The letter also says that “evidence did not support” an allegation that appeared in TIME magazine in 2007. That story, written by the author of this article, cited FBI documents showing the prosecution relied on a witness who gave incriminating evidence against Siegelman and two prominent Republican politicians in Alabama. Investigators and prosecutors allegedly ignored the evidence against the two Republicans.
The letter says OPR concluded that investigators and prosecutors did not pursue those matters because of “concerns” about the witness’s “credibility” as well as a “lack of resources.” The letter also reports that a lawyer in DOJ’s Public Integrity Section later re-interviewed the witness and determined that his allegations “lacked merit” and were probably “time barred” from prosecution. The letter says nothing about why, given those weaknesses, prosecutors chose to have the witness testify for four days at Siegelman’s trial, where the witness’s allegation figured in about half of the 32 corruption counts brought against the ex-governor. . . .
As long as the Department of Justice keeps the report about its internal investigation under wraps, it will be impossible for anyone to independently assess the Department’s investigation into itself or the soundness of its conclusions.
Perhaps most shocking of all, however, is the revelation that prosecutors were in touch with Rob Riley during what was supposed to be a confidential investigation. A full account of the communications are needed to know for sure, but information in the POGO report hints at possible criminal behavior, especially obstruction of justice.
Clay Land, from the Middle District of Georgia, has been named to replace original trial judge Mark Fuller, in the wake of Fuller's wife-beating scandal.
The point of tomorrow's hearing, set for 10:30 a.m. at the Federal Courthouse in Montgomery, is to determine if Siegelman should be released from prison, pending the U.S. Eleventh Circuit's consideration of his appeal on January 13.
If Land has reviewed the file--and it's one of the most controversial white-collar criminal prosecutions of the past 50 years--he should say something like this:
"Gov. Siegelman, the record shows that you and your codefendant, Richard Scrushy, have been through a nightmare--one that never should happen on American soil. You have served years in federal custody for crimes you did not commit. In fact, you were convicted of "crimes" that do not exist under the law. That's because the trial court gave incorrect jury instructions that do not match any language to be found in the relevant statutory or case law.
"The record is filled with evidence of juror misconduct, prosecutorial misconduct (including coaching and threatening of a key witness, plus failure to turn over potentially exculpatory evidence), and dubious rulings from the bench--by a judge we now know has serious problems with alcohol and prescription painkillers.
"On top of that, we see indications there was insufficient evidence to convict, in part because a check Mr. Scrushy allegedly handed to you, in which the government contends was a corrupt deal, had not been written at the time witness Nick Bailey said the transaction took place. Mr. Bailey testified that you left the meeting with a check, but evidence shows that could not have happened. What else did Mr. Bailey get wrong?
"My No. 1 concern, however, is that, by law, you and Mr. Scrushy never should have gone to trial. The government wrote an indictment that was so vague the defendants hardly knew what they were defending themselves against. When you asked for a bill of particulars from the government, seeking specifics about the charges, the trial judge inexplicably denied the request. Even Jerry Sandusky, the convicted child rapist and former Penn State football coach, was granted such a request at his trial.
"It wasn't until deep into your trial, that it became evident the alleged unlawful conduct took place in summer 1999, and the indictment was issued on May 17, 2005. Almost six full years had elapsed, meaning the charges were brought well after the five-year statute of limitations had expired. Your counsel properly sought a judgment of acquittal on statute-of-limitations grounds, but the trial court denied it.
|Judge Clay Land|
"What will happen with your appeal, which is due to be heard in January? I don't know what will happen, but I know what should happen. As I've stated already, you could not lawfully stand trial because the government did not act within the five-year statute of limitations. That means that granting you a new trial would be inappropriate.
"The only correct and lawful finding is to find you and Mr. Scrushy not guilty of all charges.
"As for my decision here today, that is an easy one: You are due to be released immediately from federal custody, pending the Eleventh Circuit's hearing of your appeal.
"My best wishes to you, your family, your friends, and supporters. I hope someday you will find reason to once again have confidence in a justice system that has so badly betrayed you in this matter.
"Court is adjourned, and Mr. Siegelman, you are free to go."
|Sonny Reagan (right), with Bob Riley|
Many more questions remain unanswered, and the episode hints that the state's ruling conservative elites often have their priorities out of whack when it comes to matters of loyalty and law. In an internal memo announcing the departure to AG employees, Strange essentially said Reagan was playing for one football team while tipping off the other team about plays to come. Reagan turned himself into a mole, a plant, a backstabber, and his actions raise this question: Is it possible for a lawyer to go any lower than this guy has gone?
Let's ponder just a few questions raised by Reagan's ouster:
* In his memo, Strange says Reagan "shared counsel" with two of the investigation's primary targets--House Speaker Mike Hubbard and State Rep. Barry Moore. What exactly does Strange mean by the term "shared counsel"? It appears he means that Reagan actually provided legal assistance to two individuals who were the subject of his own office's investigation. Again, how low can this guy go?
* Strange says Reagan "forged relationships with persons, outside the Office of Attorney General, who had an interest in undermining the Lee County Special Grand Jury's investigation." Who were these people, what was the nature of any communications Reagan had with them, and did they actually undermine the investigation?
* Were these individuals part of what has come to be known as "the Riley machine," headed by former Governor Bob Riley and his lawyer children, Rob Riley and Minda Riley Campbell. Reagan once served as a legal advisor to Bob Riley, so he clearly is in the Riley inner circle--as are Hubbard and Moore. Does the rule of law matter to those in the Riley orbit? Are their loyalties strictly to the Riley agenda, as opposed to Alabama taxpayers who pay their salaries?
* Will Reagan become the target of a criminal investigation? What about those with whom he communicated? Acting Attorney General Van Davis hinted that criminality was involved when he announced that Reagan had been placed on administrative leave in September, using verbs such as to "impede" and "obstruct" in describing the alleged conduct.
* What charges might be brought against Reagan and his cohorts? A state charge of obstructing governmental operations certainly is a possibility. If the misconduct invokes federal jurisdiction, that could lead to charges such as obstruction of justice, conspiracy, racketeering, and more.
* Where is the Alabama State Bar on all of this? How could Reagan possibly keep his bar card after committing acts of such brazen dishonesty?
* Reagan's lawyers in his appearance before the grand jury were Rob Riley and Bill Baxley. Did they know about Reagan's misdeeds? Did they participate in them? If so, what kind of professional and criminal sanctions might await them? Could they be disbarred or indicted, along with Reagan.
* Reagan has been the point man in the crusade against non-Indian gaming that started in 2008 under Bob Riley and has continued under Strange. Reagan has been the chief courtroom antagonist for several electronic-bingo casinos around the state that have been subjected to raids and seizure of equipment that appears to be legal under various constitutional amendments, but has been deemed illegal gambling machines by Riley, Strange, and Reagan. In fact, a judge is due to rule any day in a forfeiture proceeding involving the VictoryLand casino in Macon County. Given Reagan's dishonesty toward his colleagues in the AG's office, how has he treated adversaries in the courtroom setting? Have VictoryLand and other electronic-bingo facilities received fair shakes in their battles with a proven cheater named Sonny Reagan? If not, should their equipment be returned, and their facilities reopened?
* We know that Reagan unlawfully was trying to help Mike Hubbard and Barry Moore. But what about other members of Team Riley, including Big Bob himself? Insiders have speculated that prosecutors have the ammunition/information needed to "dismantle" the Riley Machine. Will the "Unmasking of Sonny Reagan" be a pivotal step in that process?
Today's hearing in Montgomery for former Alabama Governor Don Siegelman is over, and U.S. District Judge Clay Land is expected to release a written order regarding possible release later this week.
Siegelman is expected to stay in the Montgomery County Jail until the decision is reached.
If Siegelman is released, he would be free pending the outcome of a U.S. Eleventh Circuit hearing on his appeal, set for January 13.
Birmingham attorney Rob Riley, son of former Governor Bob Riley, reportedly reached out to current Governor Robert Bentley and a sitting federal judge in an effort to derail the ongoing Lee County grand-jury investigation. Our research indicates the federal judge in question is Bill Pryor, who sits on the Eleventh Circuit Court of Appeals but perhaps is best known for nude photographs that tie him to 1980s and '90s gay pornography, via the Web site badpuppy.com.
Sonny Reagan was forced to resign as deputy attorney general for leaking information about the grand jury, which so far has focused mostly on House Speaker Mike Hubbard (R-Auburn). But Bill Britt of Alabama Political Reporter (APR) writes that Team Riley still is trying to force the Lee County inquiry off balance, partly by attacking Prosecutor Matt Hart.
In an article released yesterday, titled "Is Conspiracy At Play To Thwart Justice in Hubbard Case?" Britt reports that Rob Riley and others are taking extraordinary steps to undermine the investigation. At the heart of the scheme is a game of legal musical chairs, with Rob Riley and Bill Baxley representing multiple clients in an apparent effort to use attorney-client privilege as a way to get inside information. Writes Britt:
The public face of Hubbard’s legal team has been J. Mark White, but the attorney of record is, and has been, Rob Riley. This was confirmed by Riley’s office. It is believed that Riley is the one who suggested that White represent Hubbard and that Baxley defend Moore.
Strange’s memo makes it clear that Reagan's representation by attorney’s allied with Moore and Hubbard, created an “irreconcilable conflict of interests,” that compromised his, “duties of loyalty and confidentiality to the State,” and undermined grand jury's investigation for “his own personal interest.”
Strange describes a situation where a sitting Deputy Attorney General is sharing confidential information with attorneys, who, under the guise of attorney/client privilege are free to use this information to protect and defend their clients in a manner the law never imagined.
Here, a cast of characters all linked to former Gov. Bob Riley through relationships, both familial and financial, are talking to Reagan and each other through their attorneys.
Such a scheme, Britt reports, dances dangerously close to criminal territory:
|Bill Pryor at badpuppy.com|
How desperate is Rob Riley? The answer appears to be "very," Reports Britt:
It had been known for months that Reagan worked in concert with others inside the Attorney General’s office to lay the foundation for a bogus complaint against Hart. It is not known at this time if Riley or Baxley had any influence in the plot to remove Hart, but it is not outside the realm of possibilities given Strange’s statement. It has been said by a number or political operatives that Rob Riley allegedly reached out to Gov. Bentley as well as a sitting federal judge in an attempt to thwart the Hubbard investigation.
It is believed that the Attorney General’s Chief Deputy Kevin Turner was instrumental in Reagan’s scheme to oust Hart and that he is still causing friction within the office designed to slow the investigation.
The federal judge in question almost certainly is Pryor. He sits on the Eleventh Circuit, which is based in Atlanta, but his "duty station" is at the Hugo Black Federal Courthouse in downtown Birmingham.
We strongly suspect that Rob Riley and Pryor have collaborated on dubious activities before, including my unlawful arrest in October 2013.. At least one investigative journalist has reported that Pryor essentially serves as a "fixer" for conservative interests represented by former Bush White House strategist Karl Rove. The journalist reports that Pryor's ties to gay porn are well known among Republican factions, and they use that knowledge to essentially blackmail him into making sure key cases turn out in their favor.
Would a sitting federal judge actually interfere with a state criminal probe? When you are talking about Bill Pryor, the answer probably is yes--and it's likely that Rob Riley knows that.
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|Bill Pryor at badpuppy.com|
June 15, 2009 -- Is there a closet door closed at the 11th Circuit Court of Appeals in Atlanta?
William H. ("Bill") Pryor, Jr., the former Attorney General of Alabama who was involved in the political prosecution by the Bush administration of Alabama Democratic Governor Don Siegelman and who squeaked by U.S. Senate confirmation after being nominated by George W. Bush to the 11th U.S. Circuit Court of Appeals, appears to have a little something in his "closet." Pryor was confirmed by the Senate in 2005 in a 53-45 vote, his nomination being secured by a bi-partisan agreement between Senator John McCain and thirteen "Gang of 14" senators to force an "up or down" vote on three stalled Bush federal court nominees. Pryor was 43 when he was sworn in as a federal judge.
According to WMR sources in Alabama, Pryor, who now acts as a gatekeeper on the 11th Circuit for the Bush interests in Florida, Alabama, and other states in the jurisdiction, advertised himself during his younger days on a gay website called "Bad Puppy." There are also rumors from informed sources that naked photographs are held by some top Republicans and conservatives as an insurance policy that Pryor rules the correct way on issues on the 11th Circuit bench.
How many cases have received unlawful interference from Bill Pryor? Could they include the high-profile case of former Alabama Governor Don Siegelman?
We don't have answers to those questions at the moment, but it's important to note this key point from Madsen--it's Republicans, not Democrats, who have tended to use this information against Pryor--to help ensure that some parties receive favorable treatment, while others are cheated.
The GOP angle is in keeping with our experience. The copies of the Pryor photos we received came from individuals with Republican political leanings.
|Glen Rollins (right) and other members|
of the Rollins family in court.
A trial court had dismissed the grandchildren's claims, but the appellate court found the case presented factual issues that should go to a jury, according to an article by Alyson Palmer at dailyreportonline.
The grandchildren are suing their father, Gary W. Rollins, and their uncle, R. Randall Rollins, who head Orkin Pest Control and its parent company, Atlanta-based Rollins Inc. Gary and Randall Rollins are the sons of the late O. Wayne Rollins, founder of Rollins Inc. O. Wayne Rollins started the family's business empire with his brother, the late John W. Rollins Sr.
The John Rollins side of the family is based mostly in Delaware and the Carolinas, and it includes Ted Rollins, who recently was removed as CEO of Campus Crest Communities. Ted Rollins has been the subject of numerous posts here at Legal Schnauzer, mainly because of his central role in a grossly unlawful divorce case in Shelby County, Alabama, from his second wife, Birmingham resident Sherry Carroll Rollins. Also, Ted Rollins has student-housing developments at four Alabama campuses (South Alabama, Troy, Jacksonville State, and Auburn), even though he has a criminal conviction for assault from the brutal beating of his stepson.
The Georgia court case does not involve Ted Rollins, but the controversy involves millions of dollars and recently attracted the attention of Forbes magazine, with reporter Clare O'Connor producing a major investigative report.
At the heart of the case are trust funds that O. Wayne Rollins established for his grandchildren, with the recipients having limited access to them. That strategy seems to run in the Rollins family. As we reported in a previous post, Sarah Rollins of Birmingham (the daughter of Ted and Sherry Rollins) has a trust fund established by John W. Rollins, and she has reached the age where, by law, she is entitled to information about the fund. Sherry Rollins states that nothing about the fund has been disclosed to her daughter, while Sherry, Sarah, and her sister Emma have relied on food stamps off and on for several years.
What's the gist of the ongoing court case in Georgia? Here is how Alyson Palmer explains it:
The siblings complain that their father and uncle have established unfair distribution systems at odds with the terms of the trusts created for their benefit by their grandfather. . .
In their lawsuit, filed in 2010, the plaintiffs contend that, after their grandfather died in 1991, their father and uncle breached their duties when they made various changes to the structure, leadership, holdings and distribution methods used within the various family entities held within the trusts. They point to a "conduct-based distribution system" imposed by their father and uncle after their grandfather's death that made distributions from entities held in the trusts based on factors such as the plaintiffs' attendance at entity shareholder meetings and engagement in "serious pursuits." They also complain that their father and uncle unilaterally amended the agreement for a family partnership held within the S-trusts, the Rollins Investment Fund (RIF), to concentrate power in themselves and permit non-pro-rata distributions to themselves at their own discretion. . . .
The plaintiffs claim the changes amounted to breaches of trust and breaches of fiduciary duty. They say their father threatened to cut off distributions to them entirely if they sued and that he and their uncle had Glen Rollins fired from his position at the family company, where he had worked for his entire career.
The establishment of trust funds comes with significant tax advantages and can involve huge sums of money. How much is at stake in the Rollins case. Alyson Palmer provides an idea:
Giving some hint as to how much money is at stake, Wednesday's decision said the plaintiffs, in support of their allegations of inequitable distributions, say that Gary and Randall received a total of $46.7 million from RIF between 1993 and 2011, while the four plaintiffs received a total of $53.5 million from RIF during the same time.
Land's primary grounds for denying Siegelman's request for release was that the U.S. Eleventh Circuit Court of Appeals had already ruled on matters related to Leura Canary's recusal in the appeal of Siegelman codefendant Richard Scrushy. Siegelman argued that Canary, former U.S. attorney under George W. Bush, did not honor her recusal--and presented ample evidence that Canary remained involved with the case long after she had supposedly stepped aside. Land admitted that Siegelman had raised ""significant issues that deserve serious consideration." (See order at the end of this post.)
But then the judge, from the Middle District of Georgia, dropped back to punt. In essence, he said, "The trial court and appellate court have already ruled on this issue, and it would make the judiciary look bad if I corrected them now. Please understand that I'm not saying the previous rulings are correct; there's a good chance they are not. In fact, this case is riddled with incorrect rulings, including the fact that prosecutors brought it well outside the five-year statute of limitations. Heck, convicted child rapist and former Penn State football coach Jerry Sandusky got more favorable treatment in court than did Mr. Siegelman and Mr. Scrushy. But I don't have the courage to stand up and say my fellow judges got it wrong. Unfortunately, our courts are not about dispensing justice; they are about protecting the judiciary and legal elites."
That's what we mean by damage control. The federal judiciary in the South has taken a much-deserved pounding in the past 12 months or so. First came revelations that Eleventh Circuit judge Bill Pryor, whose duty station is in Birmingham, has ties to 1980s and '90s gay pornography via nude photographs that appeared at a Web site called badpuppy.com. Then came reports that Fuller, the original trial judge on the Siegelman case, had been arrested for beating his wife in an Atlanta hotel room. That was followed by thunderous calls for Fuller's resignation, plus a vow from U.S. Rep. Terri Sewell (D-Alabama) that she will initiate impeachment proceedings when Congress gathers again in January.
Just yesterday, we had a report here at Legal Schnauzer that Pryor--because of his gay-porn secrets--is vulnerable to blackmail by conservative interests led by GOP guru Karl Rove, who once was Pryor's campaign manager in a run for Alabama attorney general. Our report stated that Pryor has become a "gatekeeper" or "fixer," ensuring that cases of particular importance turn out in a favorable way for the Rove faction.
Pryor's reputation as a fixer apparently extends to state-court matters because, as we reported earlier this week, prominent Alabama Republican Rob Riley sought out the judge for possible intervention in a Lee County grand-jury investigation that threatens the Riley Political Machine.
In that kind of environment, where flagrant corruption has become the norm, is it any wonder that Don Siegelman's request for release was denied? When will the public demand a federal investigation that likely would send numerous bad actors--including judges, lawyers, and politicians--to federal prisons? When will the public turn to the kind of protests we've recently seen in Ferguson, Missouri, and New York City over apparent police misconduct?
U.S. law enforcement apparently is infested with rogue officers, but our guess is that the judiciary (state and federal) is even worse. Clay Land's ruling today just adds to a mountain of evidence that a major shakeup is in order.
Beneath the surface, and somewhat buried in Land's 31-page opinion, was an issue that is much darker and potentially explosive. In fact, it points to a cover-up of criminal behavior that, if fully exposed, could rock our democracy. (See opinion at the end of this post.)
We're talking about discovery, specifically an inquiry into the supposed recusal of Leura Canary, the U.S. attorney over the Middle District of Alabama, where the Siegelman case was held. On page 3 of his order, Land states that discovery on the Canary recusal is one of three issues Siegelman raises on appeal--then the judge waits until the final four pages to address it, stating that "the Court leaves the most difficult issue for last."
Why is it the most difficult issue? Because Leura Canary clearly had a financial interest in the outcome of the Siegelman case; her husband, Bill Canary, had served as a paid consultant for Siegelman's political opponents. That violates Siegelman's fundamental due-process right, under the Fourteenth Amendment, to an impartial prosecutor, which Land addressed as follows:
It is indisputable that a defendant in a criminal prosecution is entitled to an impartial, disinterested prosecutor who does not have a personal financial interest in the prosecution. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 803-04, 809-10 (1987). The reason is fundamental to our system of justice:
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."
Berger v. United States, 295 U.S. 78, 88 (1935); accord 18 U.S.C. § 208(a) (prohibiting federal prosecutors from representing the Government in any matter in which they or their family members have a financial interest).
Siegelman presented evidence that Leura Canary had a financial interest in his case, and that has been prohibited by U.S. Supreme Court precedent for roughly 80 years.
Thanks to whistleblower Tamarah Grimes, Siegelman presented evidence that Canary did not abide by her announced recusal. Part of Siegelman's case before Land was a request to conduct formal discovery on the issue of Canary and her failure to fully recuse. By my unofficial count, Land became the sixth judge to deny such discovery. (That total might be seven if you count Bill Pryor's possible role as a fixer for certain conservative interests.)
And there is little doubt that Siegelman is entitled to discovery, under the law. As his lawyers wrote in a 2013 brief:
Even if these manifestations of Canary’s continuing involvement were not, by themselves, sufficient to warrant reversal, the district court erred by refusing to order further discovery. When discovery is sought in support of a motion for a new trial, discovery should be ordered “where specific allegations show reason to believe that the [defendant] may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Arthur v. Allen, 459 F.3d 1310, 1310-11 (11th Cir. 2006) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)).
A district court’s failure to order discovery is an abuse of discretion if it is “too soon to declare out of hand that the new evidence” might support the defendant’s new-trial claim. United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990); see id. at 913 (“The District Court abused its discretion in denying [the defendant’s] motion for discovery into [the government’s] alleged misconduct and in denying the motion for a new trial without first conducting an evidentiary hearing.”).
Both U.S. Supreme Court and Eleventh Circuit precedent indicate Siegelman is entitled to discovery regarding Canary and her recusal. He is entitled to evidence that might show that his due-process right to an impartial prosecutor was trampled?
The answer, in our view, is that discovery regarding Leura Canary would reveal that the Siegelman case was, in fact, a political prosecution. And it would reveal who was pulling Leura Canary's strings, to help ensure that the case ended with a conviction.
Who might those persons have been? We don't know, at the moment, but they probably go to very high levels of the federal government, at the time. And that probably is why federal judges, including Clay Land, are so invested in a cover-up.
We will say this for Judge Land. His opinion hints that he does have a conscience, and he is troubled by the way the Siegelman case has been handled. Consider this from the opinion, on the subject of discovery:
Defendant has been prevented from making the record more robust. Thus, he faces an unenviable conundrum. He is told: “You have not produced enough evidence to support your claim.” And when he responds, “but all of the evidence is in your control and not available to me, so let me have a chance to see it ,” he is told, “too bad, you don’t get to see it because you have not produced enough evidence to support your claim.” It sounds like an unsolvable riddle: “To win, A must prove “X.” B is in control of the evidence relevant to “X” and will only give A a peek at that evidence if A first proves “X.” How does A win? Impossible--unless C, who has authority to order B to allow A to see evidence relevant to “X,” intervenes.
Land then comes real close to saying that he believes the trial and appellate courts have gotten it wrong on the issue of discovery:
The Court finds that a substantial question exists as to whether the district court erred by denying Defendant the opportunity to engage in discovery to support his prosecutorial misconduct claim.
That wasn't enough for Land to order Siegelman's release. But it should tell the public that something deeply troubling is going on--and at least one judge pretty much admits it, although he apparently lacks the courage to fix it.
|Bill Pryor at badpuppy.com|
How did the Pryor photos make their way to Badpuppy? Details about that are murky, but language at the top of "WizardBoy Gallery 19" provides some clues. Here is how it reads:
"WizardBoy Gallery #19 features new scans of classic color and B&W pix from a private collector. Thanks, Ernie! Comments to WizardBoy welcome."
Who is Ernie? Well, that remains a mystery at this point--although we have discovered some clues about his identity. This much appears certain: Ernie was quite the collector of gay porn, and he liked to share it with his friends and the public.
Ernie almost certainly had no clue that his collecting habits would someday help shine light on a federal judge who has a solid record of speaking out against gay rights. In fact, Bill Pryor might accurately be called the most homophobic individual on the federal bench.
More importantly, we showed in a recent post--borrowing from the work of D.C.-based investigative journalist Wayne Madsen--that members of Pryor's own party (Republicans) have used his gay-porn secrets to help ensure that he serves as a "gatekeeper" for their interests before courts in the Eleventh Circuit (Florida, Georgia, and Alabama).
So, who do we think is this mystery man named "Ernie"? We will address that question in an upcoming post.
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What gives? Perhaps Shashy figures that Alabama courts have handled electronic-bingo cases peculiarly for years, so he might as well stick with the pattern. But this one is especially hard to figure because it's not a complicated case; the facts and the law are clear that VictoryLand is due to have its property returned--and its casino should be reopened, after raids from the Alabama Attorney General's Office forced it to close in February 2013.
The issues are so clear-cut that Shashy should have been able to make a ruling at the close of testimony in September. Here are three reasons why:
(1) AG Luther Strange's primary argument has been that VictoryLand's e-bingo machines violate state statutes that prohibit slot machines and gambling devices. It has been long established under Alabama law, however, that the state constitution trumps a statute. And voters approved a constitutional amendment in 2003 that paved the way for e-bingo at the facility in Macon County.
(2) Strange also argues that the machines do not meet a lawful definition of bingo. But again, Amendment 744 is controlling law, and it states that the Macon County sheriff will "promulgate rules and regulations" for the operation of bingo in the county. The sheriff has found that the machines play a form of bingo, and by law, that should end the discussion. In fact, the machines at VictoryLand operated lawfully under the sheriff's definition for five years--and that only changed when former Governor Bob Riley, the beneficiary of funding from Mississippi Indian gaming interests, decided to launch a crusade against non-Indian facilities in Alabama.
(3) At September's trial, VictoryLand presented expert testimony that its machines were legal and did, in fact, play bingo. The AG's office presented no expert testimony, nothing to controvert VictoryLand's evidence. That would seem to make Shashy's ruling awfully easy--in a sense, the AG forfeited at trial.
A side issue seems to make the picture even more curious for the AG. Sonny Reagan, one of Strange's top assistants and his point man on gaming issues, was forced to resign in December over allegations that he had leaked information from a grand-jury investigation in Lee County.
If Strange has admitted that his chief bingo prosecutor has behaved in an unethical manner on one case, shouldn't the public be asking, "Well, how did Mr. Reagan handled his responsibilities in the VictoryLand matter and other bingo cases? Did he try to undermine the legal process in those cases?"
What if Shashy rules against VictoryLand? From here, it seems the casino and owner Milton McGregor would have grounds to ask not only for an appeal but also for a criminal investigation into Sonny Reagan's handling of the case.
U.S. Magistrate Charles S. Coody, from the Middle District of Alabama, states in an order dated June 27, 2012, that he reviewed in camera(in private, in his chambers) all documents that Siegelman sought and found they contained "no exculpatory matter" that would "further" the former governor's claims. Coody proceeded to deny Siegelman's request for discovery, just as he had earlier denied a similar motion from codefendant Richard Scrushy, the former CEO of HealthSouth.
By our unofficial count, Coody became the first of at least six federal judges to deny discovery on the Canary-recusal issue--the others being trial judge Mark Fuller; a three-judge panel of the U.S. Eleventh Circuit Court of Appeals; and, most recently, U.S. District Judge Clay Land, who was appointed to hear the case in the wake of Fuller's wife-beating scandal.
All six judges to consider the matter have denied discovery by essentially following Coody's lead--and his claim that he had privately reviewed all relevant material that Siegelman requested. But Siegelman's lawyers state, in a brief dated August 26, 2013, that Coody never reviewed any documents related to Canary's recusal. (The brief is embedded at the end of this post.) In fact, the Siegelman team states that Coody only reviewed documents related to primary government witness Nick Bailey and never even ordered documents about Canary.
In essence, Siegelman's lawyers are calling Coody a liar--and they are saying that Coody's lies have tainted the defendants' cases for roughly 2 1/2 years now. Do they have a point? Let's consider Coody's words from the second paragraph of his order:
After reviewing the submissions and hearing argument of the parties, the court ordered the United States to produce for an in camera review all documents that would be responsive to the defendant's discovery requests. 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. Accordingly, for the more detailed reasons that follow, the court concludes that Siegelman's motion for discovery (doc. # 960) is due to be denied.
Near the end of his order, Coody returns to the issue:
The court has thoroughly reviewed in camera the documents that Siegelman seeks. . . . They do not support his hypothesis that other evidence exists to support his claim, nor is there anything in the material provided by the United States that is contrary to the evidence already in the hands of the defense.
Coody twice makes it clear that his denial of discovery is based largely on the fact that he has "thoroughly reviewed" all of the documents that Siegelman requests. And Coody's order makes clear that the most important of those documents likely are the ones involving Canary.
But in a brief filed a little more than one year later, Siegelman's lawyers state that Coody is mistaken--that he is, for lack of a more delicate term, a con man. In fact, defense lawyers point to specific documents, and cite precise language, that seems to prove Coody lied. From pp. 17-18 of the Siegelman brief:
The Magistrate Judge, however, did not order any Canary-related discovery.Instead, he entered two discovery orders, neither of which asked the government to turn over any documents related to Canary’s continued involvement in the prosecution. The two discovery orders required the government to turn over notes and documents “related to or developed from interviews of or meetings with Nick Bailey by any agent of the government.” Doc. 1042; see also Doc. 1040 (ordering Case: 12-14373 Date Filed: 08/26/2013 Page: 28 of 65 - 18 - production of “the binder provided to [an attorney] by his former client Nick Bailey”). Bailey had been a government witness who claimed that prosecutors had improperly shaped and scripted his testimony; his claims of testimony-shaping had nothing to do with Canary’s continued involvement in the Siegelman prosecution. Doc. 1096 at 5.
Having granted only Bailey-related discovery, the Magistrate Judge denied Siegelman’s request for materials relevant to Canary’s disqualification.
In a footnote on pp. 18-19, Siegelman's lawyers show that Coody offered pretty much the same language to deny Scrushy's request for discovery:
In denying co-defendant Scrushy’s similar discovery request, the magistrate judge wrote that “the court has laboriously reviewed the documents provided to it by the government related to this issue. . . . This is not a matter of withholding any documents; there are no documents.” Doc. 1070 at 19-20. Yet the magistrate judge failed to acknowledge that the “documents provided to it by the government” included nothing related Canary’s ongoing involvement. Indeed, the government was not ordered to turn over any Canary-related documents.
Coody, it appears, engaged in blatant subterfuge; Siegelman's lawyers caught him at it, but Coody's fellow jurists mindlessly followed his bogus lead.
What would genuine discovery regarding Leura Canary reveal about the Siegelman case? Why are federal judges resorting to deceit and chicanery to make sure it remains hidden from the public?
That might cause a reasonable person to ask: What in the world is in the Canary documents that would cause a federal magistrate to lie openly in court documents--with at least five more judges helping to perpetuate the lie in followup rulings? Are these judges trying to protect powerful individuals who were pulling Canary's strings in the background, ensuring that the Siegelman case was a political prosecution--as the former Alabama governor and his supporters have claimed for years.
As we reported last week, Siegelman's lawyers stated in an appellate brief that U.S. Magistrate Charles S. Coody never even ordered documents related to Leura Canary, who was U.S. attorney for the Middle District of Alabama at the time. That means Coody's claims that he "thoroughly reviewed" the documents and found nothing to help Siegelman's case could not be true. Ironically, the revelations about Coody come to light as a new appeal is due to be heard in Atlanta tomorrow before the U.S. Eleventh Circuit.
Members of Siegelman's legal team were not the only ones to catch Coody's ineptness and deceit some time ago--even though it largely has escaped public notice. Lawyers for former HealthSouth CEO Richard Scrushy, codefendant in the Siegelman case, made almost identical claims regarding Coody.
Lawyers tend to use delicate language when they make the slightest criticism of any judge--and both the Siegelman and Scrushy legal teams use careful wording to describe Coody's actions. But we are not bound by any courtroom traditions that call for soft treatment of corrupt judges, and we will put it bluntly--lawyers for both Siegelman and Scrushy claim that Judge Coody lied, and in so doing, he trampled their clients' due-process rights to have their case handled by an impartial judge. More importantly, probably every ruling subsequent to Coody's order has been affected by the finding that a magistrate reviewed documents related to Leura Canary and found nothing helpful to the defendants.
In other words, two-plus years' worth of rulings that have gone against Siegelman and Scrushy are based largely on a lie.
Let's consider language from Scrushy's brief dated April 9, 2012. Scrushy's lawyers address Coody's failure to review Canary-related documents on pages 29-34. (The brief is embedded at the end of this post.)
The magistrate’s representations as to the discovery requests relating to the e-mails to or from U.S. Attorney Canary are at odds with the record. The wording of the order denying discovery as to these e-mails states that he “laboriously reviewed the documents provided to it by the government related to his issue.” . . . The magistrate’s finding that “there is no evidence to support the defendant’s supposition ‘that other e-mails’ exist,’” . . . clearly implies that the in camera review included the e-mails specifically requested by Scrushy in his discovery motion. However, since the Government was never ordered to produce any materials relating to the U.S. Attorney’s failure to honor her recusal, it is not surprising that the in camera review would find no such e-mails.
Scrushy's team also refers to a Freedom of Information Act (FOIA) proceeding, upon which the U.S. Justice Department (under both George W. Bush and Barack Obama) has been stonewalling for roughly nine years:
These findings are further undercut by the supplemental showing that Scrushy made in support of his motion for discovery. . . . Scrushy cited to a summary judgment motion filed by the U.S. Attorney’s office in a Freedom of Information Act proceeding.
A declaration attached to the summary judgment motion by Middle District of Alabama First Assistant Sandra Stewart shows that documents relating to the recusal of the U.S. Attorney not only exist, but had also been indexed. These materials include the entire file of the then-First Assistant and a CD containing “all the captured electronic records from U.S. Attorney Canary’s computer system.” . . .
At the time the magistrate found that no such documents existed, he was on notice that documents relevant to this issue had been gathered and indexed in the D.C. District Court proceeding.
This makes Judge Coody's lies even more perverse. He knew that documents related to Canary's recusal had been gathered and indexed--but he failed to order them, and then he lied about having reviewed them.
If a cover-up is in place on the Siegelman/Scrushy case, it might have started with Charles Coody. Why are he and others trying to deny fundamental rights to the defendants and hoodwink the general public? Are he and others engaged in a criminal conspiracy?
Americans need to be asking these questions--and more--if our justice system ever is to be restored to a place of integrity. A white-hot spotlight needs to shine on the entire Eleventh Circuit, and its butchery of the Siegelman case. And the light needs to shine first on U.S. Magistrate Charles Coody.
Seeking Alpha published the article on December 30, 2014, under the headline, "Management Overhaul=Long-Needed Transformation at Campus Crest, 50% Upside for Shareholders." It uses terms such as "blunders" and "loss of credibility" to describe Rollins' performance.
Rollins has been the subject of numerous posts here at Legal Schnauzer, in part because of his central role in a Shelby County, Alabama, divorce case that we have described as perhaps the most grotesque cheat job we've seen in a courtroom. Also, Rollins has been a major business figure in Alabama, with student-housing developments at four state universities (South Alabama, Troy, Jacksonville State, and Auburn)--plus, his primary corporate law firm has been Bradley Arant, of Birmingham.
Ted Rollins' former wife, Sherry Carroll Rollins, and the couple's two daughters are Birmingham residents.
Here is a summary of what Seeking Alpha reported about the performance of Rollins and his managers:
* Campus Crest Communities' previous management team was removed on the back of multiple blunders and loss of credibility.
* The company's operations are getting streamlined by an exit from construction and development as well as from multiple joint-ventures.
* The dividend payout is finally reduced to a prudent and sustainable level.
* Recently announced actions would solve most of the relevant problems and should close the huge discount to peers.
On the subject of credibility, Seeking Alpha would have known Ted Rollins has shortcomings in that department if it had followed our coverage of the Rollins v. Rollins divorce case. We presented overwhelming evidence that both Ted Rollins and his billionaire cousin, R. Randall Rollins, committed perjury during discovery proceedings in the divorce case.
All of this should not have been news at the highest levels of the nation's financial system. We notified a Wall Street analyst named Paula Poskon, of Robert W. Baird and Company, about some of the ugliness in Mr. Rollins' background, and after initially exclaiming, "Oh, my God!" she tried to strong arm me into not using her quotes.
If financial elites had paid attention to our reporting, perhaps Seeking Alpha would not have recently written this about Campus Crest Communities:
The not so good work by the prior management with multiple value-destroying blunders led to the loss of investor confidence. Previously unresolved portfolio acquisitions, disappointing new deliveries, heavy reliance on joint ventures, underperforming international redevelopments are only some of the issues faced by the company.
On top of this, the earlier dividend payout was at a rate above the Funds From Operation (FFO), which implied high risk of its cut and created another source of investor confusion.
Until recently, CCG was construction and development company as well as owner and operator of student properties. Development activities led to cash flow volatility and elevated risk, when at the same time REIT investors typically want high and stable dividend income. This resulted in a mismatch in terms of what investors wanted and what the company offered, which contributed to CCG's discount to peers.
Recent business restructuring activities gave rise to a number of impairments and one-off charges, which temporary depress accounting earning creating negative sentiment around the company.
We broke the story last week that U.S. Magistrate Charles S. Coody, from the Middle District of Alabama, claimed he had "thoroughly reviewed" documents related to the supposed recusal of former U.S. Attorney Leura Canary. But as we reported yesterday, lawyers for both Siegelman and codefendant Richard Scrushy state in court filings that Coody never even ordered the Canary-related documents from the U.S. Department of Justice, so he could not possibly have reviewed them. Subsequent rulings, at both the trial and appellate level, have gone against the defendants, based to a considerable extent on Coody's finding that the Canary documents presented no "exculpatory" matter.
Now we know that Coody lied about having reviewed the documents. And while our research indicates we are the first news site to break the story, we have found references--even in the Alabama mainstream press--that Coody did, in fact, fail to order the Canary documents. Also, a review of the case history shows that Siegelman and Scrushy moved for Coody to recuse himself--twice--and the judge refused to step down.
Based on developments of the past few days, is it any wonder that the defendants did not want Coody anywhere near their case? What kind of judge--what kind of person--claims he has reviewed material that could lead to reversal or a new trial for wrongly convicted parties, and then lies about it? Did Coody cross the boundary into criminal territory?
To be sure, this is not a matter of defense attorneys whining mindlessly about a judge in hopes their clients might catch a break. In an article dated November 3, 2011, reporter David White, of The Birmingham News/al.com,hinted at Coody's deceit, but did not shine a heavy light on it. White focused primarily on Coody's order requiring that prosecutors turn over a three-ring binder of notes that chief witness Nick Bailey allegedly used.
White never mentions Leura Canary by name, but his story includes:
U.S. District Court Magistrate Judge Charles Coody this morning ordered U.S. Attorney George Beck to present for Coody's inspection a copy of a binder used by a key prosecution witness [Nick Bailey] in the 2006 corruption trial of former Gov. Don Siegelman and HealthSouth founder Richard Scrushy.
Coody's order came a day after attorneys for Siegelman and Scrushy asked the magistrate to make government officials release documents that could show the two men deserve a new trial. Coody's order did not deal with any other documents.
White's readers probably did not know at the time what that last sentence was about. But now we know that it means the defendants asked for documents related both to Bailey and Canary--and Coody ordered only the ones related to Bailey.
Siegelman and Scrushy apparently did not trust Coody from the outset because they moved twice for his recusal. What were the grounds for asking the judge to step aside? Here is part of what the Tuscaloosa News reported:
Siegelman, former HealthSouth Chairman Richard Scrushy and former Siegelman transportation director Mack Roberts filed recusal motions, citing alleged conflicts of interest Coody has in the case. They included Coody’s wife hearing two of her students discuss frustrations by their road contractor father, who was a witness before a grand jury that indicted Roberts, and Coody’s grown children’s employment with or ownership of some of HealthSouth’s 396 million shares of stock.
Here is part of Coody's explanation for staying on the case, according to a report at onlinemontgomery.com:
U.S. Magistrate Charles Coody said his ability to remain impartial won't be affected by his son-in-law's position as a HealthSouth executive. Scrushy, who has pleaded not guilty to charges he bribed former Alabama governor Don Siegelman, had said Coody should recuse himself.
"My son-in-law has never discussed with me anything about internal corporate information to which he is privy," Coody said. "I have assured myself that my son-in-law's position with HealthSouth did not bring him into contact with any matter in dispute in this criminal case." . . .
Siegelman and two former cabinet members charged in the corruption case had sought Coody's recusal as well, saying he coached a debate team whose members included daughters of a potential witness. All the defendants have pleaded not guilty. Prosecutors opposed the requests, saying in a filing Thursday that Coody didn't "intimate that he could not be impartial."
Neither Coody nor prosecutors apparently bothered to check the required standard for making a determination on recusal. It is simply stated in 28 U.S. Code 455:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
What Coody's son-in-law might have said to someone is irrelevant. Whether Coody did or did not "intimate" anything about his impartiality is irrelevant. The question is: Given evidence regarding Coody's son-in-law role at HealthSouth, plus Coody's role as debate coach for daughters of potential witnesses, could the judge's impartiality be reasonably questioned? The answer almost certainly is yes, and that means--by law--Coody should have stepped down.
Those questions now seem trivial in light of what we now know about Coody's actions. It no longer is a matter of whether his impartiality could be "reasonably questioned"; he clearly was not impartial, he lied about it, and deprived the defendants of a fair hearing.
Did at least one judge, Charles S. Coody, commit criminal acts? That's the No. 1 question hanging over the Siegelman case now.
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|Eleventh Circuit Court of Appeals|
Scrushy's lawyers, in their 2012 appellate brief, showed that Coody claimed to have "thoroughly reviewed" documents related to the recusal of former U.S. Attorney Leura Canary and found no "exculpatory matter"--when, in fact, Coody had not even ordered the documents.
The Scrushy team showed that Coody's statements were "at odds with the record." (Translation: The judge cheated the defendants and then lied about it.) But when the Eleventh Circuit released its ruling in July 2013, denying Scrushy a new trial, the three-judge panel made no mention of Coody's chicanery. If anything, the appellate court only added to the high-level deceit that has marked the Siegelman case from its inception. (The Eleventh Circuit ruling on the Scrushy appeal is embedded at the end of this post.)
We're not talking about a minor issue here. Scrushy (and later Siegelman, in his appeal that was heard yesterday) were seeking discovery to show that Canary did not abide by her recusal, trampling their constitutional right to an impartial prosecutor. Coody essentially claimed he had done the discovery for the defendants, checking the documents in his chambers and finding nothing that would help them. In truth, we now know, Coody didn't review the documents because he did not even order them.
Did this concern the Eleventh Circuit? Apparently not. Without mentioning Coody by name, the appellate court references a magistrate judge--but it simply ignores the profound implications, and inherent dishonesty, of his actions.
The appellate court notes that trial judge Mark Fuller denied Scrushy's request for discovery on the recommendation of a magistrate judge, who supposedly had ordered all requested Canary-related documents, conducted an in camera review, and found nothing to support defendants' claims. That magistrate, of course, was Charles S. Coody--and the record shows he could not have reviewed any Canary documents. From page 26 of the Scrushy ruling:
Judge Fuller referred Scrushy’s motion for production to a Magistrate Judge for a report and recommendation on whether any of the requested discovery was needed to decide any of the grounds for a new trial and thus should be made available to Scrushy’s counsel. The Magistrate Judge ordered the Government to produce the discovery in camera. The Government complied. After examining the discovery, he concluded that none of it supported any of Scrushy’s grounds for a new trial. He therefore denied Scrushy’s motion for discovery.
Scrushy appealed the Magistrate Judge’s discovery decision to the District Court, arguing that the Magistrate Judge erred in concluding that the discovery provided no support for his motion for a new trial. Judge Fuller rejected Scrushy’s argument and denied his motion. Without saying so explicitly, the Magistrate Judge, and thus Judge Fuller, found Scrushy’s grounds for a new trial facially insufficient as a matter of law.
Did the Eleventh Circuit essentially jump on Coody's train of deceit? The answer is yes. Let's consider the three key points made in the first paragraph above:
* "The Magistrate Judge ordered the Government to produce the discovery in camera." That is not true. Coody ordered only discovery items related to witness Nick Bailey; he ignored the request for material related to Leura Canary;
* "The Government complied." That is not true. The full request was for discovery material related to both Bailey and Canary. The government did not comply with the request for Canary items because Coody didn't order them to do it.
* "After examining the discovery, [Coody] concluded that none of it supported any of Scrushy's grounds for a new trial." That is not true. Coody could not have examined the Canary discovery because he didn't order it. The magistrate had no idea whether or not discovery would support Scrushy's grounds for a new trial.
The Eleventh Circuit panel goes on in its ruling to declare:
Moreover, there is no evidence that Canary’s emails influenced any decisions made by the U.S. Attorney’s office in prosecuting Scrushy. Canary’s limited involvement in his case did not deprive Scrushy of a disinterested prosecutor. In fine, Judge Fuller did not abuse his discretion in rejecting ground (4) of Scrushy’s motion.
That's right, there is no evidence about Canary's actions because Charles S. Coody didn't look for any--and then he lied about what he had done. But the Eleventh Circuit says nothing about it, which probably means it doesn't want the public to know what happened.
We have suggested that Charles Coody was part of a criminal conspiracy that started from his post in Montgomery, Alabama. Now, we see signs that the conspiracy spread to the Eleventh Circuit headquarters in Atlanta. Will the appellate panel further the corruption by ignoring Coody's dishonesty in its Siegelman ruling?
|Center Stage Alabama casino|
In short, the conservative doctrine holds that judges must never "make law" from the bench, but should craft rulings grounded in law that already exists.
Someone should get that message to the justices, all Republicans, who comprise the Alabama Supreme Court. That's because the Alabama Supremes recently engaged in one of the most blatant acts of judicial activism any of us ever are likely to see. In a unilateral action that is based on--well, pretty much nothing--the high court effectively outlawed electronic bingo in the state. As Dave Barry would say, "I'm not making this up."
Did this involve any legislative or executive action? Nope. Was it grounded in any legitimate legal precedent? Nah. Is it somehow based in Alabama's archaic and outdated constitution? Not on your life. In fact, it flies in the face of constitutional amendments that voters approved in various counties around the state.
Does it resolve the controversy that started in 2008 when then governor Bob Riley, the beneficiary of millions in Indian gaming money, decided to launch a string of raids against non-Indian bingo facilities in the state--and has continued under Attorney General Luther Strange, another Republican who has benefited from large chunks of Indian campaign cash? It sure looks that way to us.
The ruling in question, styled Houston County Economic Development Authority (HEDA) v. State of Alabama, was issued on November 21, 2014, and involved the Center Stage Alabama casino near Dothan. (The opinion is embedded at the end of this post.) Buried on page 30 of the 40-page opinion is the following:
In accordance with the foregoing, we reiterate today that the game traditionally known as bingo is not one played by or within an electronic or computerized machine, terminal, or server, but is one played outside of machines and electronic circuitry.
Did expert witnesses testify to this effect in the HEDA case? Heck, no. The state, which asked for the machines to be declared unlawful, presented no expert witnesses. The only experts on the record were from HEDA, and they testified that the machines did, in fact, play bingo and were lawful under the relevant constitutional amendment.
So how did the Alabama Supremes come to their conclusion? Citing no law as precedent, they declared that expert testimony was not necessary--and pretty much pulled the ruling out of their collective, berobed rear ends.
Oh, the Supremes did trot out their usual case--Barber v. Cornerstone, 42 So. 3d 65 (Ala., 2009)--in an effort to prove that bingo can be played only on paper cards, preferably by people who are at least 95 years old and have blue hair, white hair, or no hair. Almost as an aside, the Supremes declare in HEDA that the six-point test outlined in Cornerstone now applies to all other local bingo amendments in the state.
That's funny because Cornerstone itself doesn't say that. As we've shown in a previous post, Cornerstone clearly was about narrow issues regarding a preliminary injunction in Lowndes County.
Back in September 2013, we wrote the following:
We invite readers to click on the link above and read the entire Cornerstone ruling. Taken as a whole, it states that the court was focusing narrowly on: (1) The electronic-bingo facility in Lowndes County; and (2) The lawfulness of the preliminary injunction against the Riley defendants.
That's it--nothing about any other bingo facility in Alabama, nothing beyond a right or wrong ruling on a preliminary injunction.
But now the Alabama Supreme Court cites Cornerstone to essentially outlaw electronic bingo in counties where voters have approved bingo-related constitutional amendments? And those amendments were crafted through the legislative process? And in some locations, electronic bingo was played lawfully for up to five years before Bob Riley came along, with Indian cash dripping out of his pockets, to launch a crusade against non-Indian gaming facilities?
Heck, we've even found a Supreme Court case, issued AFTER Cornerstone, that seems to uphold the provisions of the constitutional amendment in Macon County and finds the e-bingo machines at VictoryLand are legal. Specifically, the case seems to uphold the amendment's language that it is for the county sheriff, not the courts, to define bingo and set rules for its play.
Why should the HEDA ruling scare the bejeebers out of Alabamians, even those who don't give a hoot about bingo or gambling of any kind? The ruling clearly is based on the whims and personal biases of the Supreme Court justices--and not on any legal precedent. In fact, it circumvents the law-making process and overrides the will of voters who approved constitutional amendments.
That hints that Alabama's high court is tainted on the subject of electronic bingo. It also suggests that some of the Indian gaming money that flowed to Bob Riley and Luther Strange has found its way into the pockets of Supreme Court justices.
Thanks to the reporting of The Montgomery Independent's Bob Martin, we already have seen frightening signs of collusion between the Riley team and members of the Supreme Court. In fact, we've written about that issue multiple times, in 2009, 2010, and 2013. (See here, here, and here.)
The HEDA ruling suggests that something of that sort still is going on. If that's the case, it would represent a criminal conspiracy that, if unmasked by the U.S. Department of Justice, would rock Alabama government to its foundation.
At first glance, the HEDA ruling seems to be about little more than bingo. But we suspect something much more sinister is going on beneath the surface.
In a case styled Houston County Economic Development Authority (HEDA) v. State of Alabama, the high court recently found that bingo can be played only outside of "machines and electronic circuitry." In reaching this conclusion, the Supremes pointed to Barber v. Cornerstone, 42 So. 3d 65 (2009), a case in which they concocted a six-point test to define bingo.
But get this: Just one week after releasing the Cornerstone decision, the high court issued a ruling that indicates the machines at VictoryLand casino in Macon County are legal. That case is styled Macon County Greyhound Park Inc. v. Knowles (2009). In that case, a woman named Sherry Knowles claimed she had won a jackpot of at least 40,000,000 credits, while VictoryLand argued that the play was not a valid win.
In the Knowles ruling,the Supremes state that bingo in Macon County is allowed by Amendment No. 744 to the Alabama Constitution, and they note the prominent role the county sheriff plays in overseeing the game. From Knowles:
Amendment No. 744 further authorizes the sheriff of Macon County to “promulgate rules and regulations for the licensing and operation of bingo games within the county.” In force at all times relevant to this action were the “Second Amended and Restated Bingo Regulations for the Licensing and Operation of Bingo Games in Macon County” (“the sheriff's regulations”), promulgated by the Macon County sheriff pursuant to Amendment No. 744.
The stated purpose of the sheriff's regulations is to “adopt the policy of the Attorney General in limiting the conduct of Class B bingo gaming in Macon County thereby allowing the Sheriff to more effectively regulate and enforce the proper conduct of bingo games.”
The high court even notes that it is up to the sheriff to define bingo. From Knowles:
“Bingo” is defined in § 1 as
“any game of chance known as bingo, including any bingo game permitted by federal law, (whether or not electronic, computer, or other technologic aids are used in connection therewith) which is played for prizes, with cards bearing numbers or other designations, and [in] which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards. The bingo game must incorporate the typical features of traditional bingo, including, but not limited to, a grid of five horizontal and five vertical squares, numbers randomly selected, and a preordained winning pattern. Alternative entertaining displays such as spinning reels and other video or mechanical graphics are permitted but must not affect game play. Just as in traditional bingo halls, players on electronic bingo machines must compete against one another. Consequently, the electronic machines must be linked so that players are competing against each other. . . . "
That is the Macon County sheriff's definition, and the Alabama Supreme Court seems to have no problem with it. The definition clearly states that bingo can be played in an electronic or computerized format, and the Alabama Supreme makes no objection to that. At no point do the Supremes state that Sherry Knowles was playing on an illegal machine.
A reasonable person could argue that Knowles trumps Cornerstone. After all, Cornerstone was issued on November 13, 2009, while Knowles was released on November 20, 2009, The cases involve a number of "disparate issues" (as lawyers like to say), so they are not exactly on point with each other. But it's clear that Knowles came after Cornerstone, and at the time of the Knowles ruling, the Alabama Supreme Court considered the machines at VictoryLand to be legal.
How deep does the confusion on electronic bingo get in Alabama? In a January 7 memo, Attorney General Luther Strange cited the HEDA ruling and encouraged state prosecutors to enforce laws against illegal gambling. Governor Robert Bentley responded by saying the state does not have the resources to relentlessly pursue gambling cases.
Some observers have suggested that Strange's memo indicates his office plans to step back from pursuing gambling cases. Writes Brian Lyman, of the Montgomery Advertiser:
However, Strange's memo was more reserved about what role, if any, the attorney general's office — which has engaged in high-profile activity against gambling over the past four years — would continue to have.
Strange said his office would continue to provide answers to legal questions, but told D.A.s to contact the newly-formed Alabama Law Enforcement Agency (ALEA) for "assistance or additional manpower" in enforcing the state's gambling laws.
Mike Lewis, a spokesman for Strange, said Thursday the memo was meant to instruct "local law enforcement on what is legal and illegal and encouraged to follow the guidelines and the law." However, he declined to say whether the attorney general's office would continue to take the lead on gambling prosecutions.
What does the future hold? That is anyone's guess, and clarity does not seem to be coming from courtrooms or law firms. The Alabama Supreme Court is not the only legal entity in the state that can't seem to get its story straight about electronic bingo. We know of at least one other one.
(To be continued)
Jeffrey Toobin's piece at The New Yorker, titled "Why Obama Should Pardon Don Siegelman," leads a flurry of new coverage about a case that has become perhaps the most notorious political prosecution in American history.
Toobin, who has been legal-affairs analyst at CNN since 2002, says now is the time for President Barack Obama to act on a high-profile case of injustice:
Since the midterm elections, President Barack Obama has been acting as if he feels liberated from parochial political concerns. After taking action on immigration, Cuba, and climate change, he should take on another risky, if less well-known, challenge by commuting the prison sentence of Don Siegelman, the former governor of Alabama. . . .
Throughout Siegelman’s legal ordeal, the Supreme Court has been in the process of deregulating American politics, most notably in the 2010 Citizens United decision. In that case, the Justices found that money is speech—that contributing to a political campaign amounts to a protected activity under the First Amendment. As the appeals court in Siegelman’s case noted, the charges in his case “impact the First Amendment’s core values—protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of these constitutionally protected activities.”
The line between legal and illegal behavior in the campaign-donation environment has become so thin as to put numerous politicians and their donors, from both parties, at risk, Toobin writes:
It seems clear that Siegelman was conducting the seedy, but routine, business of contemporary American politics. Scrushy contributed because he wanted something in return, which is why many, if not most, people contribute to political campaigns. (George Will made this point in a column in defense of Siegelman.) Why do “bundlers” become Ambassadors in congenial countries? Why do local contractors support mayoral candidates? Why do real-estate developers give to prospective (and incumbent) governors? Because they want something. Siegelman was convicted because the quid pro quo was too “explicit”—but, beyond the conversation about what Scrushy might want, there was no clear evidence that it was. Thanks to the courts, the line between illegal bribery by campaign contribution and the ordinary business of politics has all but disappeared. Throwing a man in prison for activity at the murky barrier between the two is simply unjust.
At Justice-Integrity Project, Andrew Kreig applauds Toobin's conclusion, but notes that the prominent commentator has joined a long line of journalists (including yours truly) who has gotten certain key facts wrong about the Siegelman case. In fact, Kreig uses quotations from codefendant Richard Scrushy to help set the record straight.
The most common error involves reports that Scrushy gave Siegelman $500,000 for an education-lottery campaign. In fact, Scrushy states, the amount was $250,000, and it came from his company, HealthSouth, not from him personally. Kreig reports:
The former HealthSouth CEO commented that Toobin is among the many journalists who have accepted a false prosecution narrative that Scrushy donated $500,000 in 1999 to the non-profit Alabama Education Foundation in order to obtain appointment to a governor-appointed regulatory board.
Scrushy . . . said the sum was $250,000 and it came from HealthSouth at the request of a fellow businessman, not Siegelman -- and Scrushy did not want to serve on the board. . . .
In a comment posted Jan. 14 on the Free Don Facebook page maintained by Siegelman supporters, Scrushy disputed Toobin's factual summary of the case, including regarding that of the chief prosecution witness, former Siegelman aide Nick Bailey. Scrushy's comments, with minor typographical changes made here, were:
I never gave a single dime to Governor Siegelman and the facts show this but for some reason the jury didn't care about the facts either and neither did the prosecutors or the judge.
First, I never wrote a check to him [Siegelman] and he never received any money. HealthSouth did donate $250,000 to the Alabama Democratic party along with Alabama Power, Alfa Insurance and many other companies and those funds were used to pay back the money the party had borrowed to pay the marketing expenses for the Educational lottery foundation.
The prosecutors kept saying that I gave the Governor $500,000. They said it in the courtroom and to the press over and over till they got it to stick in the minds of the jury and people everywhere. The press played right into their lies and propaganda. This actually helped them win the case and till this day every single article that is written about this case states that I gave the Governor $500,000 which is totally false.
I have repeatedly told the press, newspapers, magazines and television that I never gave the Governor a dime, but the press continues with the lies of our Government prosecutors. Their PR campaign was effective and it continues to have legs regardless that it is totally false.
Finally, Joan Brunwasser, of OpEd News, has an interview with me about the latest developments in the Siegelman case--especially revelations that U.S. Magistrate Charles S. Coody never ordered (or reviewed) documents related to the supposed recusal of prosecutor Leura Canary, and then lied about his actions in court documents. Brunwasser's piece is titled "Magistrate's Deceit Discovered in Siegelman case--Does Anyone Care?"
From the interview:
Brunwasser: Pragmatically speaking, what difference does it make? If the judges are corrupt, incompetent or both, what makes you think that anyone will give your revelations the attention they deserve?
Shuler: Good question. The Eleventh Circuit Court of Appeals certainly is not going to do anything about it. They've already denied Richard Scrushy's appeal, in which he raised the Coody issue, and the three-judge appellate panel just ignored it. It looks like the Obama DOJ is going to sleepwalk through the entire eight years he's in office. So, I don't necessarily think my revelations will receive much attention--beyond what I give them on Legal Schnauzer. And I have more posts coming on the subject. The only way I see to advance this issue is for the public to become engaged and somehow reach key media outlets that might take it to a broader audience. This is a case of a judge cheating and lying in a way that has caused individuals to go to prison and have unjust felony convictions on their records. If the public doesn't care about a story like that . . . well, God help our democracy.
Most importantly, the recent reports indicate Rob Riley was at the heart of a plot against Siegelman, perhaps from the very beginning. This has dark implications because no one benefited more from the Siegelman case than Bob Riley (Rob's father), who went on to serve two terms as governor after "beating Siegelman" in a 2002 election where votes for the Democrat disappeared overnight in heavily Republican Baldwin County.
Former Time magazine reporter Adam Zagorin revealed the Rob Riley e-mail communication in a piece last month at Project for Government Oversight (POGO), and we picked up on the story here at Legal Schnauzer. Many questions remain about Rob Riley's e-mail correspondence--at a time when he was serving as his father's campaign manager, against Siegelman--and here are just a few of them:
* With which prosecutor did Riley communicate? Was he in contact with more than one on the case?
* What was the full extent of the e-mail exchange? For now, we have only a few words that the self-described "conservative prosecutor" wrote to Riley, saying he felt "thwarted" on the case. What was Rob Riley's response? What other issues were addressed?
* Did Rob Riley offer to take action to help the "conservative prosecutor"? If so, what did he do?
* Did Rob Riley offer to contact anyone on the "conservative prosecutor's" behalf? If so, who did he contact?
* Isn't this grounds for the U.S. Department of Justice to subpoena all of Riley's e-mail and phone records, to get a full view of exactly what he was doing? At the moment, Riley's actions point to possible obstruction of justice and perhaps even more serious crimes.
Rob Riley's e-mail communications with a prosecutor become even more alarming when you consider them in light of what Jill Simpson already has stated before Congress. Here are key points Simpson made about Rob Riley, from a summary of her testimony published in The New York Times. (The full summary is embedded at the end of this post.)
Ms. Simpson described a 2005 conversation with Rob Riley in which Mr. Riley stated that, in late 2004, Karl Rove had contacted the Public Integrity Section of the Department of Justice to press for further prosecution of Don Siegelman, and had also stated that the case would be assigned to a federal judge who “hated” Mr. Siegelman and who would “hang Don Siegelman.” (50-57) According to Ms. Simpson, Mr. Riley stated:
* that the case against Don Siegelman in the Northern District had been “miserably messed up” by United States Attorney Alice Martin and had been dismissed by a federal Judge in 2004 (48-50);
* that, with that case out of the way, Mr. Siegelman was “the biggest threat” to Governor Bob Riley – Rob Riley’s father – in the coming 2006 Governor’s race (48);
* that the new case against Mr. Siegelman would be brought in the Middle District of Alabama and would be assigned to Chief Judge Mark Fuller, whom Rob Riley knew from college (50-53);
* that “Fuller would hang Don Siegelman” because he believed Mr. Siegelman had caused Fuller to be audited in a former position which had exposed some questionable financial dealings by Fuller (56-57); and
* that Mr. Siegelman would be indicted on charges related to Richard Scrushy because Mr. Scrushy was very unpopular and it would be useful to link the two men together. (84-85, 106).
Jill Simpson's sworn testimony before Congress points to possible criminality on the part of Rob Riley and others. Now, we know that Rob Riley was communicating via e-mail with at least one member of the prosecutorial team.
Just when you think the Siegelman saga can't get more disturbing . . . well, along comes this.
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