Friday, February 29, 2008

Siegelman Case Update

I've been reading Naomi Wolf's "The End of America" and last night read how when she initially heard about the U.S. Attorneys Scandal, she predicted, to a friend, that the attorneys replaced would be in swing states, where politically-motivated prosecutions could swing elections. What was scary about her description was that she said she knew this, as she'd been reading about Joseph Goebbels at the time and sensed that Karl Rove was behind this.

But as much as the Siegelman case is being described in horserace terms, the 60 Minutes story featured former Arizona Attorney General Grant Woods, who is both a Republican and godfather to John McCain's children.

But Grant Woods, the former attorney general of Arizona, says the case should never have gone to trial. “The prosecutor's gotta look at it and say, ‘Hey, is this the sort of thing that we're really talking about when we're talking about bribery?’ Because what the public needs to know here is there is no allegation that Don Siegelman ever put one penny in his pocket,” he says.

Richard Scrushy did make donations totaling $500,000 to that education lottery campaign, and after serving on the hospital board under three previous governors, Scrushy was re-appointed by Siegelman.

But Woods says that’s politics, not bribery. “You do a bribery when someone has a real personal benefit. Not, ‘Hey, I would like for you to help out on this project which I think is good for my state.’ If you're going to start indicting people and putting them in prison for that, then you might as well just build nine or ten new federal prisons because that happens everyday in every statehouse, in every city council, and in the Congress of the United States,” he says.

“What you seem to be saying here is that this is analogous to giving a great deal of money to a presidential campaign. And as a result, you become ambassador to Paris,” Pelley remarks.

“Exactly. That's exactly right,” Woods says.

Siegelman was campaigning in the 2006 Democratic primary as he went to trial. “We’re going to turn this bus into what we call the night shift, because after the trial every day we’re gonna be hittin the trail every day,” he said.

But he lost in the primary. After two months, the jury deadlocked twice, then, voted to convict on its third deliberation. Many legal minds were shocked when federal judge Mark Fuller, at sentencing, sent Siegelman directly to prison without allowing the usual 45 days before reporting.

“He had him manacled around his legs like we do with crazed killers. And whisked off to prison just like that. Now what does that tell you? That tells you that this was personal. You would not do that to a former governor,” Woods says.

“Would you do that to any white collar criminal?” Pelley asks.

“No, I haven't seen it done,” Woods says.

“Help me understand something. You're blaming the Republican administration for this prosecution. You're saying it was a political prosecution. You are a Republican. How do I reconcile that?” Pelley asks.

We're Americans first. And you got to call it as you see it. And you got to stand up for what's right in this country,” Woods says.

Now former Reagan administration official, and obvious Republican, Paul Craig Roberts summarizes the case like this:

The Siegelman case makes it clear exactly what Bush, Rove, and the disgraced Bush flunky, Alberto Gonzales, intended by firing the eight Republican US attorneys. These eight refused to politicize their office by falsely prosecuting Democrats in order to achieve a Rovian political agenda. Apparently, there were only eight honest persons among the 1,200 Republican US attorneys. Bush, Rove, and Gonzales had no problem with the other 1,192.

Former Alabama Supreme Court Justice Terry Butts said that justice in America today is about political agendas, "not about convicting real criminals." Butts said that Siegelman’s attorneys and allies expect reprisals from the US attorney’s office and Alabama’s Republican establishment.

Karl Rove refused to testify about the case before Congress.

On February 25, Fox "News" gave Karl Rove airtime in which to deny the accusations and evidence against him, which he did.

The Department of Justice [sic] refuses to release Siegelman trial documents to Congress.

Siegelman’s family home was broken into.

Siegelman’s attorney’s office was broken into and ransacked.

Jill Simpson’s house was burned down, and her car was run off the road.

This is the way "justice" works in Bush Republican Amerika.

Think about that last line and remember that Roberts is a "a former Assistant Secretary of the US Treasury and former associate editor of the Wall Street Journal, has been reporting shocking cases of prosecutorial abuse for two decades."

Has he changed or have the Neocons taken the Republican party in a direction that's non-conservative, where the Justice Department becomes a tool of Bush's Brain?

Monday, February 25, 2008

60 Minutes Story on Selective Prosecution Blacked Out

When I heard that 60 Minutes would broadcast a story about former Alabama Democratic governor Bernie Siegelman in which a former GOP campaign worker claims she was asked by Rove to look into whether he was having an affair, I spread the word by emailing the TLC listserve.

The story aired last night but you can find the video here. >

An AP story from yesterday described what the 60 minutes segment would describe:

"A former Republican campaign worker claims that President Bush's top political adviser, Karl Rove, asked her to find evidence that the Democratic governor of Alabama at the time was cheating on his wife...

Jill Simpson, who has long alleged that Rove may have influenced the corruption prosecution of former Gov. Don Siegelman...

Simpson testified to congressional investigators last year that she
overheard conversations among Republicans in 2002 indicating that Rove
was involved in the Justice Department's prosecution of Siegelman."

Governor Siegelman sits in jail in Alabama, but the 60 Minutes story was sure to make voters in Alabama question whether the prosecution was motivated by Justice or by a politicized Department of Justice doing Karl Rove's bidding. So what did most of the voters see?


Strangely enough, "technical difficulties" meant that many viewers in Alabama encountered a service interruption during the broadcast. As Scott Horton writes at No Comment:

I am now hearing from readers all across Northern Alabama—from Decatur to Huntsville and considerably on down—that a mysterious “service interruption” blocked the broadcast of only the Siegelman segment of 60 Minutes this evening. The broadcaster is Channel 19 WHNT, which serves Northern Alabama and Southern Tennessee. This station was noteworthy for its hostility to Siegelman and support for his Republican adversary. The station ran a trailer stating “We apologize that you missed the first segment of 60 Minutes tonight featuring ‘The Prosecution of Don Siegelman.’ It was a technical problem with CBS out of New York.”

But Horton, unlike the viewers in Alabama, was able to check out this story:

I contacted CBS News in New York and was told that “There were no transmission difficulties. The problems were peculiar to Channel 19, which had the signal and had functioning transmitters.” Channel 19 is owned by Oak Hill Capital Partners, who can be contacted through Rhonda Barnat, 212-371-5999 or Oak Hill Partners represents interests of the Bass family, which contribute heavily to the Republican Party. Viewers displeased about the channel’s decision to censor the broadcast should express their views directly to the station management or to the owners.

Strangely enough, when I go to the link from the AP story I referenced yesterday, and quoted above, I read that "the story is no longer available." Why? As Horton states:

Hopefully the Associated Press editors will start paying close attention to the reporting that is moving over the AP wires with a Washington dateline about the Siegelman case. We now have the second straight AP story filled with highly tendentious and misleading statements which are carefully set out to mirror the attack line put out by the Alabama G.O.P., but using the wireservice’s own voice.

Horton lays out the misleading statements made in the article, and evidently it was later withdrawn. More stunning than the allegations themselves is the substance of the investigation. As Horton states:

The CBS piece, for which I was repeatedly interviewed, came through on its promise to deliver several additional bombshells. The most significant of these was the disclosure that prosecutors pushed the case forward and secured a conviction relying on evidence that they knew or should have known was false, and that they failed to turnover potentially exculpatory evidence to defense counsel. The accusation was dramatically reinforced by the Justice Department’s failure to offer a denial. It delivered a fairly elaborate version of a “no comment,” and even that came a full twenty-four hours after it had conferred with the prosecutors in question. The gravity of the accusations made and the prosecutors’ failure to deny them further escalates concerns about the treatment of the former Alabama governor.


But the show was dominated by one of 52 former attorneys general from 40 of the 50 states who have called for a Congressional probe of the conduct of the Siegelman case, former Arizona Attorney General Grant Woods. He leveled a series of blistering accusations at the Bush Administration’s Justice Department. With the Alabama G.O.P. this evening issuing a near-hysterical statement in which it characterizes the CBS broadcast—before its transmission—as an anti-Republican attack piece, it was notable that Woods, like the piece’s other star witness, is a Republican. Not just any Republican, either. Grant Woods is co-chair of the McCain for President leadership committee, and a lifelong friend and advisor to the presumptive 2008 G.O.P. presidential candidate. Woods is also godfather to one of the McCain children.

Attorney General Woods has this to say about the Bush Justice Department’s prosecution of Siegelman: “I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair and square. This was a Republican state and he was the one Democrat they could never get rid of.”

No wonder "the base" is not comfortable with McCain. Consider for a second, the nature of the allegations:

The basic charge is that businessman Richard Scrushy gave $500,000 to the Alabama Education Foundation, a vehicle Siegelman created to run a campaign for a state education lottery, and Siegelman in exchange appointed him to the state’s hospital oversight board.

And that these allegations are being made by the Bush Administration's highly politicized Justice Department:

Karl Rove pursued financing for the Bush-Cheney campaign in 2000 and again in 2004 by organizing a special elite status—called “Pioneers” and “Rangers”—for persons who donated or raised $100,000 or more for the campaign. These donors understood that if they wanted to be appointed to a government office, like an ambassadorship, they only had to ask for it.

So how many Bush-Cheney donors in amounts of one hundred thousand and more were appointed to government offices or to positions in the Bush-Cheney transition team? The answer is one hundred and forty-six (146). And in how many of those cases did the Justice Department initiate investigations of corruption? The answer is zero (0).

Are prosecutors above the law?

Are all pigs equal but some pigs more equal than others? That's the issue I worked on yesterday in a brief involving whether prosecutors have a right to review presentence reports, or PSI's.

The case involves a lawyer friend who, knowing that the trial court routinely allowed prosecutors to review PSI's, moved to preclude them from doing so in his client's case.

The statute involved allows the judge to determine who can review PSIs, but also imposes a requirement that the judge first decide whether review by the person seeking it is in an offender's best interests. As the statute, Neb. Rev. Stat. § 29-2261(6),says:

Any presentence report… shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge, probation officers to whom an offender's file is duly transferred, the probation administrator or his or her designee, or others entitled by law to receive such information... The court may permit inspection of the report or examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender.

Pretty clear that not just anyone can view these PSI's, right? Well, the judge didn't see it this way, for whatever reason, and decided that the statute was inoperable against the State, as it was a "party" to the action. Fair enough. Take it up on appeal.

But the prosecutor, at the hearing on the Defendant's Motion to Preclude him from reviewing the "privileged" PSI, the prosecutor said:

“If the State doesn't have that information [in the PSI], the state will have to assume the worst on every individual defendant, assume they're not employed, things of that nature, and to make a recommendation for the maximum.”

Wow. In other words, if you don't let us see it, we'll just have to assume that the information is terrible and ask for the max every time.

Isn't this a perfect reason to be a criminal defense lawyer? The prosecutor can't read the plain meaning of a statute and threatens, should the judge apply the statute against him, to assume the worst and max them all out.

So much for a prosecutor's "duty to seek justice."

Wednesday, February 20, 2008

Goodbye to the Exclusionary Rule?

In another example of being boiled slowly, and thus not feeling the change, in today's New York Times comes
this article
describing a new case accepted for certiorari:

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

He was convicted in a federal prosecution, with both the Federal District Court in Montgomery, Ala., and the United States Court of Appeals for the 11th Circuit, in Atlanta, refusing his request to suppress the evidence.

There was no dispute that Mr. Herring’s arrest lacked probable cause, and that both the arrest and the search were therefore unconstitutional. But the 11th Circuit, citing the Supreme Court’s most recent discussion of the exclusionary rule, in a case from 2006, said suppression of reliable evidence placed a heavy toll on the criminal justice system and should be used as a last resort.

Also, last week, during an interview with the BBC, Justice Scalia said that "It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that."

At the time, I wondered what the implications of this statement were to Scalia's view of interrogations of U.S. citizens. For example, if the ticking time bomb scenario prompted him to believe that "sticking something under the fingernail" were permissible, what does he also believe about a suspect being interrogated during an "exigent circumstances" scenario?

Is it "absurd" to think that Scalia wouldn't apply the same logic?

The Times article also hints about the possibility that exclusion will be, well, excluded, as a remedy next term:

Often in the past, the Supreme Court’s acceptance of a criminal defendant’s appeal suggested that the court was inclined to overturn the conviction. But this appeal, Herring v. United States, No. 07-513, which was prepared as a student project of Stanford Law School’s Supreme Court litigation clinic, might turn out to be a case for Mr. Herring of “watch out what you wish for.

In the 2006 decision to which the 11th Circuit referred, Hudson v. Michigan, five justices expressed deep reservations about the utility of the exclusionary rule. That 5-to-4 decision refused to apply the exclusionary rule to evidence found by police officers who burst into a Detroit man’s home to execute a search warrant without first knocking and giving the man a chance to respond. Justice Antonin Scalia’s majority opinion appeared written to solicit further challenges to the rule’s application.

Saturday, February 09, 2008

Our First Caucus

The Nebraska Democratic Party wanted to do something different this year and adopted a caucus system for the first time. Of course, when the system was adopted, the goal was to encourage more grassroots involvement, to get people out talking and voting with their feet and voices rather than simply filling out an oval.

But no one predicted that the tight race would put Nebraska Democrats in a position of actually having an effet on a national election. It's not a position we're used to in this land of Go Big Red that seems to be a deeply red state as well. In fact, someone at the caucus I attended said, "I didn't know there were this many Democrats in Omaha!", and we were at one of 15 sites in Douglas County.

So the sudden importance of Nebraska brought the voters out in droves and made it difficult to prepare for both a new caucus system and a new surge of voters. According to the Lincoln Journal Star:

Sarpy County had one caucus site for 28,000 registered Democrats, triggering traffic backups for miles and complaints from voters while changing the way officials conducted the caucus.

“To only have one polling place for the third largest county in our (state) was certainly a mistake,’’ said Joe Pilakowski, a 31-year-old high school teacher from Papillion. “It’s kind of a mess.’’

Law enforcement shut down Highway 370 and the intersection leading into the site — a school cafeteria — because the area was packed with cars.

The influx of people was so massive that volunteers began collecting preference cards for people who preferred Obama or Clinton, then allowing them to leave. Traditional caucus procedures allow for more interaction, with supporters standing on either side of a room trying to persuade the undecided and not-so-sure supporters of other candidates to join them.

“People are threatening to leave, and we didn’t want anyone to leave without being counted.’’ said Marea Bishop, 43, of Bellevue, a volunteer at the caucus. “The turnout is so far above all our wildest dreams.’’

“Desperation,’’ Sarpy County Democratic Party Chairman Burke Summers said when asked why officials changed procedures at the last minute. School officials wanted the school cleared of caucus-goers by midafternoon to make way for a pair of youth basketball games.

Fought, the state party spokesman, said it was up to each county’s party leaders to adjust plans in the best way possible without drastically deviating from the procedures.

An early count showed that 6,000 people showed up at the school to caucus, including 2,000 people who registered Saturday. About 1,500 of the new registrants had switched from other parties.

“There’s a hell of a lot fewer Republicans in Sarpy County than there were yesterday,’’ Summers said.

The turnout was so high that officials in Douglas and Sarpy counties announced that they would delay the announcement of their results at least one-and-a-half hours.

“We had no ability to imagine anything,’’ Fought said. “That was part of the challenge here because we’ve never done this before.’’

While I sympathize with the position party officials are in, it was easy to imagine that something was different this year and that a surge of voters could be expected. I know this because the wild atmosphere at the caucus I attended was just like the atmosphere I experienced on Thursday night as 12,000 people showed up for Barack Obama's speech in Omaha. The arena held only 10,000, but I was lucky enough to be one of the overflow crowd allowed to enter an adjacent arena, where 1000-2000 people who showed up but couldn't fit into the main event were allowed to come in out of the cold.

Obama appeared and spoke to us before he went upstairs, and my two daughters and I thus got to see him from 100 feet away rather than seeing him on stage with 10,000 other people.

So any party officials who went to the Obama rally had to have known that if people would turn out that strong on a Thursday, a Saturday a.m. caucus was sure to be packed.

I arrived late and was one of the last to be admitted, but the crowd was easily 5 to 1 for Obama. It was simple to spot the Clinton "crowd" because it looked like they were standing at the back of the event. It wasn't until the crowd started chanting that I realized obama's group wasn't the event, they were only one side of it. It wasn't even close.

I predict Obama will win easily based on what I saw on Thursday in downtown Omaha and today in the west side of the city. The results should be in soon, but count on an Obama win.