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Cross Posted at Legal Schnauzer

Attorneys for former Alabama Governor Don Siegelman are requesting an evidentiary hearing, in part to determine if federal prosecutors committed crimes in their handling of the case. Siegelman also directly targets U.S. District Judge Mark Fuller, saying Fuller's handling of the trial constitutes a "screaming violation of due process."

Meanwhile, a central figure in the Siegelman story calls on Attorney General Eric Holder to step down from the case, because of conflicts related to his former law firm, and ask President Obama to appoint a special counsel.

A heightened sense of drama now surrounds the Siegelman case, and veteran attorney/journalist Andrew Kreig lays it out in a compelling overview pieceat Huffington Post. Writes Kreig:

What we now face is as dramatic a moment as I've ever seen in 35 years as a professional in this field, first as a news reporter covering federal courts and more recently as an attorney and commentator.

At this point, the Justice Department is either going to help enforce silence about Judge Fuller and the others who are accused of official misconduct, or else DoJ will stop making preposterous arguments to prevent a public hearing on the evidence, and potential new trial before a new judge. Then the evidence will take its course, whatever that might be.

Siegelman's latest court filing is filled with hard-hitting attacks against the Montgomery, Alabama-based judge and prosecutors who oversaw the trial. The complete document can be read here:

Siegelman Evidentiary Hearing

The filing focuses on what it calls a "smoking gun" e-mail provided by Justice Department whistleblower Tamarah Grimes:

The prosecution acts as if the "smoking gun" third email from District Ethics Officer and First Assistant United States Attorney, Patricia Snyder (later Watson) does not exist. But it does.

That email included the following:

"I wanted to let you know that Tami has agreed to work on the big case that Steve Feaga and J.B. Perrine are busily working up. Since this case has ACE potential, having her work on it is justified. Leura [Mrs. Canary] and Louis [Franklin ("Franklin") who was supposed to be in charge of the Siegelman case after the alleged recusal] both liked the concept, and Tami is excited about it as well. Because of the large volume of documents involved."

The e-mail could have criminal implications for federal prosecutors, the Siegelman team states:

If the facts show that the third email is accurate, attorneys and others in the Department of Justice and the United States Attorney’s Office for the Middle District of Alabama may have engaged in criminal conduct, as well as having violated a statute prohibiting conflicts of interest by employees of DOJ.

In a footnote, the filing cites criminal statutes that might have been violated:

18 U.S.C. § 208 (a) (conflict of interest); 18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony) among others.

Alleged threats to government witness Nick Bailey also could have criminal implications for prosecutors:

Again, all the evidence is not in, but if it turns out that the Government threatened witnesses, those who did so may have their own problems. 18 U.S.C. § 1512 (Tampering with a witness, victim, or an informant).

The filing saves its harshest language for Judge Fuller, who oversaw the trial involving Siegelman and former HealthSouth CEO Richard Scrushy. Fuller was shown a postal-inspector report about the authenticity of alleged juror e-mails, and that draws considerable attention in the filing:

Even if the Court did not read the report, it doesn’t matter. The Government secretly commissioned the Postal Inspector to determine the non-authenticity of the emails. After it received the report, it did not tell the defense, but it was shown to the Court. If there was ever anything that smacked of the appearance of judicial impropriety, this was it. It was also a screaming violation of due process to have secret investigations arranged by the Government and to conceal the results from the defense.

Speaking of hiding critical evidence from the defense, that is on the mind of Alabama attorney and Siegelman-case whistleblower Jill Simpson. She notes that Attorney General Eric Holder asked for a conflict waiver from President Obama on September 4 so that Holder could remain involved in the case of former U.S. Senator Ted Stevens (R-AK). The conflict arose because Holder's former law firm, Covington & Burling, now represents Public Integrity Section Chief William Welch, who is the subject of a criminal investigation for his actions in the Stevens case. Obama granted the ethics waiver, allowing Holder to remain on a case where he appeared to have a conflict.

Simpson points out, however, that Welch also was involved in the Siegelman case. And that means Holder has a conflict there, too. Says Simpson:

I wonder what (Holder) will do now that Siegelman has made William Welch part of his case, as many have encouraged him to do for months.

I do not believe (Siegelman) knew at the time he filed this last paperwork that Covington & Burling was representing William Welch; it has been a secret in Washington and quietly handled behind the scenes. But I suspect firecrackers will go off about this in all the cases in the South where Welch is accused of wrongdoing and helping hide facts that needed to be turned over to defendants, just as took place in the Stevens and Siegelman cases.

Holder should remove himself from the Siegelman case and make arrangements for Obama to appoint a special counsel, Simpson says. Also, she wonders how long the White House has been aware of Holder's conflict regarding the Siegelman case--and others in the Deep South:

Shame on them for allowing an attorney general to stay in a case where he thinks he might have a conflict. He needs to not be overseeing any cases where his old firm is involved, and since Mr. Welch is their client, AG Holder should have gotten out of the Siegelman case the minute he knew it; Mr. Welch's misconduct has been covered in numerous articles.

It is important to the citizens of our country that the Justice Department always appear to be conflict free, and we need to let President Obama know that Holder is not conflict free. . . . .

The damage (Holder) has done overseeing the Siegelman case while his old firm had Welch as a client is not something that can be corrected. The attorney general should dismiss the case and ask for a new trial.

Originally posted to RogerShuler on Tue Sep 22, 2009 at 09:16 AM PDT.

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