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Cross Posted at Legal Schnauzer

The trial judge in the Don Siegelman case is not required to recuse himself, according to a ruling issued last week by U.S. District Judge Robert L. Hinkle of Florida.

Hinkle's ruling means that trial judge Mark Fuller, a George W. Bush appointee, can continue to preside over the Siegelman case, including a resentencing that has been ordered by the U.S. Eleventh Circuit Court of Appeals. Hinkle also ensured that no hearing or other discovery will be conducted to determine if Fuller conducted the Siegelman trial in a biased fashion--or if jurors engaged in serious misconduct.

A Bill Clinton appointee to the federal bench, Hinkle appears on the surface to be a Democrat. But a review of his background reveals some alarming ties to Republicans of a Rovian stripe. And his dubious ruling regarding Fuller's recusal appears to drive home a couple of disturbing points about the state of America's justice system:

* Certain Democrats have joined Republicans in an effort to cover up the rampant corruption that surrounded the Siegelman case--from Fuller's unlawful rulings, to misconduct of Bush-era prosecutors, to allegations that the whole charade was orchestrated by Republican operatives for political reasons.

* If Democrats won't stand up for due process, as outlined in the Fifth and Fourteenth amendments to the U.S. Constitution, who will?

Due process, the legal principle that government must respect all legal rights owed to a person under the law, is the broad issue at stake in Hinkle's finding.

Conservative commentators long have portrayed Siegelman supporters as being drunk on what might be called a "cult of personality." To these pundits, Siegelman and codefendant Richard Scrushy have become a cause only because the former Alabama governor was a popular, charismatic public official.

But the Hinkle ruling shows that the case is not about Siegelman's personality; in a sense, it isn't about Siegelman at all. It is about the fundamental notions of fairness that are supposed to hold sway in our courtrooms. They come under the umbrella known as "due process," and they include the right to an objective, unbiased judge; the right to an untainted jury; and the right to face prosecutors who follow fundamental legal procedures.

Hinkle, in so many words, found that Siegelman and Scrushy are not entitled to any of those protections. At the risk of sounding crude, I would say that Hinkle rolled out critical provisions of the U.S. Constitution and took a giant crap on them.

Why did he do this? Andrew Kreig, director of the D.C.-based Justice Integrity Project, provided important insight yesterday in a piece titled "Florida Judge Continues Whitewash of Siegelman Frame-Up." Reports Kreig:

Hinkle's decision absolving Chief U.S,. District Judge Mark E. Fuller of Alabama's Montgomery-based Middle District carries the veneer of independence and fairness. But Hinkle trivializes Fuller's mind-boggling irregularities and a judge's legal duty to avoid even the appearance of unfairness. Most important, Hinkle severely undermines public confidence in the judiciary when he protects his colleague Fuller from scrutiny regarding the fabulous sums Fuller has been making on the side while implementing the Bush administration's long jihad against Siegelman, his state's most prominent Democrat. Hinkle, a wealthy man with many investments, fails to see any potential conflict in Fuller's repeated, dubious rulings in favor of his Bush administration patrons while also being enriched by Bush contracts totaling $300 million to the judge's closely held company, Doss Aviation, Inc.

What about Hinkle's investments? He is making a bunch of dough on the side, too--and it comes from some intriguing sources. Kreig provides intriguing details:

Further, Hinkle was a substantial stockholder in another company, ChoicePoint--exactly when ChoicePoint used despicable methods in 2008 to thwart a private detective’s researches into Fuller's Doss holdings. ChoicePoint, since acquired by Lexis-Nexis, is notorious for other reasons in Florida's state capital: At the request of Gov. Jeb Bush's administration, ChoicePoint furnished the state with flawed records that enabled the state government wrongly to remove thousands of African-American voters from eligibility to vote in 2000. This helped George W. Bush win the Presidency that year in disputed Florida vote returns with a reported margin of just several hundred votes. The 5-4 Bush v. Gore Supreme Court decision sealed the victory by forbidding Florida from continuing vote recounts.

To be sure, there's no way of knowing how much Hinkle knows about the operations of the companies in which he invests. He has declined to respond to my request for comment for this column, and to provide a photo and his 2010 financial disclosures covering the year 2009.

The bottom line? Hinkle has ties to a company that former Florida Governor Jeb Bush used to help his brother, George W. Bush, get "elected" president in 2000. Should that raise questions about Hinkle's objectivity regarding the Siegelman prosecution, which was instigated by the Bush Department of Justice? In our mind, it certainly should.

As for Hinkle's ruling itself, we are being charitable when we call it "dubious." A more appropriate term might be "laughable." (The full ruling can be viewed at the end of this post.)

Hinkle notes key legal standards governing recusal--and then proceeds to ignore them. For example, he correctly states that the governing standard is "whether a reasonable person fully informed of the facts would question the judge’s impartiality." 28 U.S. Code 455. Material in the Siegelman file indicates that Fuller's company makes millions of dollars from U.S. government contracts--and one of the parties before him was . . . the U.S. government. How could a reasonable person not question the judge's impartiality under such circumstances? Hinkle does not say.

Hinkle also correctly states that "doubts about recusal must be resolved in favor of recusal." Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1112 (5th Cir. 1980). Then he proceeds to ignore that standard. Actually, there are no doubts about Fuller's status in the Siegelman case; he was required by law to notify the parties of potential conflicts and then recuse himself. Liljeberg v. Health Services Acquisition Corp, 486 U.S. 847 (1988). Once the issue landed on Hinkle's desk, any doubts should have been decided in favor of recusal. Hinkle admits that's the law, and then he violates it.

Perhaps most stunning is Hinkle's finding regarding alleged juror misconduct in the Siegelman case. Get a load of this:

In this case the jurors served for nearly two months. They incurred a substantial burden.  The defendants now propose an intrusive investigation including subpoenas to their cellular and internet service providers and a review of their text messages and emails.  The defendants propose seizing the jurors’ computers for a forensic examination. This kind of treatment sometimes befalls a person accused of a crime or even someone involved in substantial civil litigation. To visit it upon a juror, based on nothing more than anonymously provided emails that bear no indicia of authenticity and that conveniently showed up just after the court issued a comprehensive opinion explaining why earlier emails were insufficient to warrant relief, would inflict an indefensible additional burden on these jurors. Treating jurors this way would make future jurors understandably reluctant to serve.

Translation: It's better for innocent men to go to prison than for jurors to be inconvenienced. God only knows where Hinkle found that concept in the Constitution. But it should scare the bejeebers out of every American.

This also should scare every American. The recusal issue in the Siegelman case is real simple--but multiple federal judges cannot get it right.

The law plainly states that a judge shall disqualify himself when "he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding." 28 U.S.C. 455(a)(4).

Does Mark Fuller have a financial interest in a party to the proceeding, specifically the U.S. government? Yes, he does. So why is he still on the Siegelman case? Hinkle apparently thinks regular citizens are too stupid to ask that question. And even though he appears to be a Democrat, Hinkle apparently is more interested in protecting the legal/judicial cartel than in making sure justice is served.

Due process? What due process? That's the message from Judge Robert L. Hinkle.

Judge Hinkle's Ruling in the Siegelman Case

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Comment Preferences

    •  I think it is a sad commentary that Eric (3+ / 0-)
      Recommended by:
      MJ via Chicago, rmx2630, Dvalkure

      Holder has refused to review the Siegelman case.  Any hope we had that Obama would right some of the wrongs of the Bush administration were dashed long ago.

      If Siegelman can't get a fair trial or review of his case after all the publicity and the Rove connections, what chance have the rest of us if we are targeted by the PTB?????

  •  His point about the jurors is a good one. (1+ / 0-)
    Recommended by:

    discovery before a trial should be liberal.  But here, Siegleman is not innocent in the eyes of the law.  Attempts to reopen cases, and especially, to attack the judge are weak sauce and the requested discovery is no more than a fishing expedition.  Without some concrete reason to believe there was jury misconduct,  there's no basis to subject the jurors to discovery.  Here, the second set of e-mails apparently looked fake  and showed up at a most opportunte time for the defense, and so the judge was perfectly within his rights be initially skeptical to take sworn testimony, only, as was the holding of the court.  

    As a famous Alabama judge once said, "Once again, the communication process has broken down between us. It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal. Well, I'm not about to revamp the entire judicial process just because you find yourself in the unique position of defending clients who say they didn't do it."

    Siegleman's also in the extremely awkward position of arguing that the judge should be recused because he had reason to believe the e-mails were fake based on the investigation by the marshalls.  Even if he did consider the ex parte communications -- and i tend to think not since he acknowledged receiving them and provided an independent basis for the ruling -- an affidavit from the marshalls that the e-mails were inauthentic would probably result in a denial of the motion for post-trial discovery.  So, assuming the judge had to be recused (from this motion only, previous recusal motion denials being "law of the case"), the motion for a retrial for jury misconduct would still likely be denied.    

    "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

    by Loge on Wed Jul 13, 2011 at 10:16:20 AM PDT

    •  ...Fred Gwynne? (0+ / 0-)

      It seems curiosity has killed the cat that had my tongue.

      by Murphoney on Wed Jul 13, 2011 at 11:15:07 AM PDT

      [ Parent ]

    •  His supposed conflict of interest... (1+ / 0-)
      Recommended by:

      ...via the HealthChoice Roger mentions borders of seven degrees of Kevin Bacon.

      Did Siegelman's lawyers make a single meritorious argument in this whole appeal?  I'm thinking, no.

      •  the honest services claims in part got tossed (0+ / 0-)

        based on an intervening Supreme Court decision.  Considering Siegelman was convicted on the basis that he received personal benefits from Scrushy's campaign contributions, having made a personal guarantee of certain debts, there was quid pro quo here, or so a jury could reasonably conclude.  But even Skilling v. U.S. allows honest services convictions based on "bribes and kickback schemes."

        "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

        by Loge on Wed Jul 13, 2011 at 11:25:00 AM PDT

        [ Parent ]

        •  A problem . . . (1+ / 0-)
          Recommended by:

          with your statement. There was no quid pro quo jury instruction given. The applicable law, McCormick v. U.S., says there must be an "explicit agreement," but Fuller's jury instruction did not say that.

          That is one of many fundamental problems with Fuller's handling of this case. Much the same thing happened with the Paul Minor case in Mississippi, another Bush-era production.

          When juries are given unlawful instructions, they are allowed to convict individuals for "crimes" that do not exist under the law.

          That should be pretty scary to folks.

          •  i read the May opinion, (0+ / 0-)

            and the instruction, along with the 11th circuit's treatment of the instruction, seem perfeclty ok:  

            In this case, the jury was instructed that they could not convict the defendants of bribery unless they found that “the Defendant and official agree[d] that the official will take specific action in exchange for the thing of value.” This instruction required the jury to find an agreement to exchange a specific official action for a campaign contribution. Finding this fact would satisfy McCormick’s requirement for an explicit agreement involving a quid pro quo.

            Siegelman argued that the agreement had to be "express," not just explicit, which is without any foundation in law.  So, you're just wrong.

            this motion had nothing to do with that, but rather a farily supurious second attempt to recuse the trial judge, having already lost on that at least twice.  

            "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

            by Loge on Wed Jul 13, 2011 at 12:11:09 PM PDT

            [ Parent ]

            •  I'm afraid you are wrong . . . (0+ / 0-)

              Siegelman, in fact, argued that the agreement had to be "explicit," which is exactly what the law says--and as your own passage shows was not included in the jury instruction.

              I didn't say the Hinkle ruling had anything to do with the jury instructions; I was responding to a comment that you made. You raised the jury-instruction issue, and you are wrong as your own followup comment shows.

      •  The company is . . . (0+ / 0-)

        called ChoicePoint, and it was never raised by Siegelman's lawyers. That's information that independent journalists and researchers uncovered. You certainly won't read about it in the MSM.

    •  If you read Hinkle's ruling . . . (1+ / 0-)
      Recommended by:
      MJ via Chicago

      he sounds an awful lot like you. Hinkle cites no law for his proposition that jurors should not be subject to scrutiny--and neither do you.

      He pulls it out of thin air. That does not make it legally correct.

      •  First of all, it's Judge Hinkle and Judge Fuller, (0+ / 0-)

        secondly, it's not out of thin air except to the extent the law actually requires the judgment to be fairly ad hoc.  Every decision on discovery weighs costs against benefits.  That's what the trial judge did and that's what the reviewing judge did.  There is not a judge in the country who would order the impounding of jurors' computers and cell phone records when the e-mails being cited to justify this look inauthentic on their face and when it's a second bite at the apple.  

        if you want statutes, FRCMP 17(c)(2) permits courts to quash or modify subpoenas of third parties when they would be "unreasonable or oppressive."  Rule 16(d), which governs party discovery, provides that "At any time the court
        may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief."

        So, the whole legal issue turns on the question of (a) whether further discovery would be reasonable or non-oppressive given the interest in finality and the extreme non-likelihood e-mails that were more than likely fakes somehow corresponded to actual e-mails, and (b) whether the exercise of discretion in this case is so flawed as to warrant recusal.  

        The simplest answer is these motions were denied because they are frivolous, not because the fix is in.  Your accusations of corruption are pretty ironic in the context of taking a very narrow view of what constitutes bribery for purposes of defending Don Siegleman.  

        "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

        by Loge on Wed Jul 13, 2011 at 12:38:15 PM PDT

        [ Parent ]

      •  The opinion also cited (0+ / 0-)

        the 11th circuit's prior rejection of the request to investigate juror misconduct, which in turn quoted a Supreme Court opinion that said:

        "Allegations of juror misconduct, incompetency, orinattentiveness, raised for the first time days, weeks, or months afterthe verdict, seriously disrupt the finality of the process. Moreover, fulland frank discussions in the jury room, jurors’ willingness to return anunpopular verdict, and the community’s trust in a system that relies onthe decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct."

        This adds up to a requirement to weigh costs against benefits, which do not exactly favor Siegleman in this case.

        "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

        by Loge on Wed Jul 13, 2011 at 12:44:55 PM PDT

        [ Parent ]

        •  I love phrases . . . (0+ / 0-)

          like "there is not a judge in the country who would . . . "

          You have no way of knowing that. And like Hinkle, you cannot cite any law to support his finding.

          And by the way, they did not have just allegations of juror misconduct; they had e-mails, which if proven authentic,  presented hard evidence of juror misconduct.

          By your way of thinking, we should do away with the "beyond a reasonable doubt" standard in criminal cases.

          If the jury instructions are in the ballpark, it's fine. If the jury is only 75 percent tainted, that's fine. Hey, we're only talking about people's freedom here--and out constitutional guarantee of due process. Nothing important is at stake.


          •  Did Siegelman cite any precedent (0+ / 0-)

            for post verdict discovery based on such flimsy evidence and in contradiction to sworn testimony?  No.  It's not that no judge would, it's that non judge ever had.

            As far as the jury instruction goes, you're just wrong about what Siegelman asked for.  He wanted an instruction that the bribe had to be verbal or in writing.  In fact, he got a quid pro quo instruction in addition to the circuit's pattern instruction.

            "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

            by Loge on Thu Jul 14, 2011 at 08:34:56 AM PDT

            [ Parent ]

            •  You might want to check out this . . . (0+ / 0-)

              from a Siegelman document:

              “Ex parte proceedings, particularly in criminal cases, are contrary to the most basic concepts of American justice and should not be permitted except possibly in most extraordinary cases involving national security.”  United States v. Presser, 828 F.2d 330, 335 (6th Cir. 1987). The court held: “[W]e do not approve the practice of government counsel in a criminal prosecution approaching the trial judge ex parte in any matter relating to the pending case.” Id.

              In United States v. Barnwell, 477 F.3d 844 (6th Cir. 2007), the Sixth Circuit reversed a defendant’s conviction in a second trial due to ex parte communications between the government and the trial court regarding possible jury tampering which occurred during jury deliberations in defendant’s first trial which ended in a hung jury: “We hold that these ex parte conversations violated Barnwell’s constitutionally prescribed rights to due process, effective assistance of counsel, and trial by an impartial judge and jury.” 477 F.2d at 850. Similarly, in Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969), the First Circuit granted habeas relief based on an ex parte communication between the state prosecutor and the trial judge after trial but before sentencing regarding defendant’s sordid behavior toward his kidnapping victim.  

              You can find many more citations to relevant law at the full document below:

              Siegelman Motion for New Trial

              By the way, Siegelman asked for a jury instruction regarding an "explicit agreement," which is exactly what the relevant law says. He did not say it had to be written. You are just regurgitating material from the 11th Cir ruling, which contradicts itself and violates the circuit's own precedent throughout.

              Always interesting to see how far even a liberal lawyer will go in an effort to protect the legal establishment. You keep driving home the key point I make in the diary. Thanks, I appreciate it.

              •  ex parte communications? (0+ / 0-)

                two judges acknowledged communications with a wholly-separate branch of the government, were unsolicited, and were not the basis for the decision on post-trial discovery or the recusal motions.

                since the jury instruction has already been up and back to the Supreme Court and there's an en banc petition pending, and then an inevitable cert petition once more, i'm sure there will be plenty of opportunities for someone who isn't Don Siegleman's lawyer (or you) to find something more than harmless error, or even error at all.  Just one.  By the way, Jeralyn at Talk Left, herself a criminal defense attorney, agrees with my characterization:

                Siegelman argued for and received a "quid pro quo" instruction but also wanted an instruction that the agreement for the quid pro quo (the CON board seat) had to be express.

                And Siegleman's own cert petition presents the issues as follows:

                Does this standard require proof of an "explicit"
                quid pro quo promise or undertaking in the sense of
                actually being communicated expressly, as various
                Circuits have stated; or can there be a conviction
                based instead only on the inference that there was an
                unstated and implied agreement, a state of mind,
                connecting the contribution and an official action? [. . .]

                Governor Siegelman argued
                that an inference about what the official had in mind
                is not enough; what must be shown under the
                McCormick standard, he argued, is an actual communication
                from the official, promising the action in
                exchange for the contribution.  [ . . .]

                So in the Eleventh Circuit, the "explicit" aspect of
                McCormick’s standard does not mean "express," or
                overtly communicated. Furthermore, according to the
                decision below, a promise that is merely "implied,"
                and is only a matter a "state[] of mind" rather than
                being verbally expressed, can nonetheless be deemed
                "explicit" within the meaning of McCormick.

                His argument was essentially that an implicit wink-and-nod promise could never be "explicit," which contradicts the SCOTUS's later holding in Evans.  He tacitly concedes, therefore, that if there isn't a requirement of being "express," the standard of being "explicit" is met in this case.

                i'm not protecting anybody.  just noting that "adverse to Don Siegelman" is not the test of what's legal or not.  but it is probably true i'm less likely to go after judges on evidentiary rulings than pure questions of law.  at the same time, i disagree with the Skilling ruling by the Supreme Court, so I'd have rather seen traditional honest services convictions stand.  

                "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

                by Loge on Thu Jul 14, 2011 at 11:15:26 AM PDT

                [ Parent ]

                •  I agree with you . . . (0+ / 0-)

                  on Skilling, and I also think traditional honest-services convictions should have stood.

                  Neither the Siegelman case nor the Paul Minor case in Mississippi should have come down to Skilling. Under the traditional law, the public must actually be deprived of an official's honest services. That didn't happen in either case. Siegelman appointed the same man to a hospital board that three other governors had appointed. And Minor's clients won cases that they should have won, based on the facts and the law.

                  You and I probably are never going to agree on the "explicit/express" business. I've read the entire Siegelman motion on that many times and written numerous posts about it. I know what it says, and the point is not debatable. He asked for an "explicit" jury instruction that was exactly as McCormick states it, and he did not get it.  

                  That the Talk Left woman agrees with you just shows that both of you are wrong. Even very smart people can be wrong about some things, and this is one example. You both are quoting from the Eleventh Cir's ruling, which is filled with errors of both fact, law, and logic.

                  By the way, I've addressed Evans in another post:

                  Fuller's instruction, however, turned the law on its head, focusing on an action and not an agreement. The Eleventh Circuit has said Fuller's instruction was OK because it was in line with another case, Evans v. U.S., 504 U.S. 255 (1992). But Evans did not involve a campaign contribution, so it is not applicable to the Siegelman case; the alleged facts and legal issues in the two cases are radically different.

                  As you lawyers like to say, Evans is not apposite. The law long has noted a distinction in a case of campaign contributions.

                  Here is more info on Evans, plus the Davis case, which actually is relevant to Siegelman:

                  The Cheating of Don Siegelman, Part III

                  For the record, I'm not a Siegelman "groupie." I've written more than any other journalist on the Paul Minor case, which in many ways, is even worse than the Siegelman matter.

                  By the way, the Minor case and one of its defendants (Oliver Diaz) is featured in a major segment in the new HBO doc "Hot Coffee." I highly recommend the doc. Excellent.

  •  Thanks for keeping us up-to-date (1+ / 0-)
    Recommended by:

    I've been following this heartbreaking case.  It's a shame we can't get justice for Don Siegelman.  Our courts are so screwed.

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