Alabama Judicial Scandal Could Taint Many Cases, Not Just Siegelman's

Mark FullerAn Alabama newspaper exposed a scandal May 16 that deserves national prominence. The headline was "Federal judge's lengthy affair with court worker is exposed."

This is a scandal not simply for the judge, Mark Everett Fuller, shown at right in a photo by my research colleague Phil Fleming. It is a lifetime shame for those in the Justice Department, federal court system and the United States Senate who have coddled and protected him for an entire decade during his obvious previous disgraces.

It was fully a decade ago that Fuller was first accused by Alabama's pension officials at their highest level of trying to bilk the system out of $330,000. Yet Alabama's two senators pushed Fuller forward for a lifetime appointment, which Fuller received from voice vote by the United States Senate with no serious discussion of his past. Fuller and his court staff were even able to hide from public view a 180-page impeachment filing against him in 2003 with no apparent attempt at investigation.

A corrupt federal judge is in position to create vast harm in both civil and criminal cases, especially when he controls the court administrative system, as Fuller did during a seven-year term from 2004 to 2011 as chief judge for Alabama's most important federal district. This is the middle district surrounding the capital city of Montgomery.

Let's start with today's disclosures and then get to the implications. Montgomery Independent Publisher and Editor Bob Martin published a front-page news story quoting divorce papers filed April 10 by Lisa Boyd Fuller, the judge's estranged wife of three decades. Her papers strongly suggested adultery. Interrogatories asked about drug use.  Martin's news story, distributed May 16 to a syndicate of 25 regional papers, reported:

Those in a position to know report the affair by Judge Fuller, conducted with his former Courtroom Deputy Clerk and bailiff, Kelli Gregg, has been ongoing for four or five years, and is basically an "open secret" in the building.

Martin, who presides over "Montgomery's Only Home-Owned Newspaper," supplemented his news article with an editorial that said he was uncomfortable writing about a divorce and could not remember ever previously doing so during his long career. "However," he continued, "the matter discussed here is not about a divorce, but rather about a betrayal of the public trust by an individual holding one of the highest positions in our Nation...that of making decisions affecting the life, liberty and property of us all."

Scott Horton

Martin then obtained expert perspective from Scott Horton, at left. Horton is an Alabama native, prominent lawyer, adjunct law professor and high-profile legal commentator. He has written two score columns for Harper's beginning in 2007 documenting abusive practices by Fuller, particularly in presiding over the 2006 corruption trial of former Alabama Gov. Don Siegelman and co-defendant businessman Richard Scrushy.

Fuller issued many pro-prosecution rulings in the case while also becoming enriched on the side through his secret, controlling ownership of Doss Aviation, a military defense contractor that received $300 million in no-bid federal contracts unknown to litigants. Horton commented at length for Martin's column on the ethical problems arising from the divorce allegations, which include claims of drug use by the judge. Horton concluded:

These ethics issues surrounding a single judge, Mark Everett Fuller, are to my knowledge, without any equal on the federal bench.

Horton suggested, for example, that the Justice Department must have known of the affair, creating a potential issue of improper pressures in many other criminal and civil cases of huge importance. Horton was the featured guest on my weekly public affairs radio program, MTL Washington Update, at noon on May 17 (EDT). Click New Direct Link to hear the archive of the show with co-host Scott Draughon. Our program is available nationwide over the My Technology Lawyer (MTL) radio network.  Mac users need “Parallels.”

A development not yet widely reported is that Doss Aviation was sold late last year to a private equity firm controlled by a former Navy Secretary, as described more fully below. The sale would tend to keep the firm's secrets intact. Fuller's wife is seeking an accounting of family assets. Fuller has asked that the court file be sealed. If granted that would be a highly unusual development in a divorce case and underscore how judges and prosecutors protect each other.

Background

Jill SimpsonRegular readers here know that the Justice Integrity Project has published scores of original, investigative columns about Fuller and has republished excerpts of scores of other investigative stories about him researched by other authors in Alabama and nationally. Many of these have focused on highly irregular aspects of the Justice Department's prosecution of Siegelman and Scrushy on corruption charges.

A number of courageous private citizens in Alabama, including Rainsville attorney Dana Jill Simpson, shown at right, stepped forward at various times to protest wrongdoing in that case. In the spring of the 2007 sentencing, Simpson stepped forward to disclose Fuller's then-controlling 43.75% ownership of Doss. She provided as a concerned citizen and bar member thorough documentation unknown even to the multi-million-dollar defense teams of the defendants. Among other disclosures, she later testified that she heard a fellow Republican say that Fuller "hated" Siegelman and would "hang" him.

But Fuller wrote an opinion stating that he felt no bias. Others implicated have disputed her and other whistleblowers.

Fuller's judicial and DOJ colleagues endorsed his positions with no apparent effort to obtain sworn testimony under cross-examination. The Justice Department argued that not one single independent-minded person in the entire United States might suspect Fuller of bias because of secret income from Doss, which trains Air Force pilots and refuels Air Force planes globally and now boasts of billions of dollars in forthcoming contracts. The DOJ asked for 20 additional years in prison for Siegelman. Yet an unprecedented coalition of 91 former chief legal officers from more than 40 states argued that his main convictions won by the Justice Department did not constitute an actual crime under United States law. More than 100 have signed a similar friend of the court brief pending at the Supreme Court.

Don SiegelmanSiegelman, right, is free on bond awaiting results of his last-ditch Supreme Court appeal [Note: previously broken link now corrected] this spring. His latest brief is here. The Obama administration has closed ranks with the Bush administration to oppose all appeals and investigations. Remarkably, the Obama administration retained Bush-appointed Middle District U.S. Attorney Leura Canary for more than two years even though Simpson implicated her and her husband as fomenting the plot against Siegelman in 2002.

Attorney Gen. Eric Holder even forced the firing of a DOJ paralegal, Tamarah Grimes, who gave a 10-page statement to him alleging highly improper prosecution tactics in the prosecution. The DOJ's prosecution of Siegelman and Scrushy has a number of disturbing para-military subthemes. Its investigation, for example, was headquartered in significant part at Maxwell-Gunter Air Force Base. A key witness was taken there for up to 70 secret interrogations, only a few of which were disclosed as required to the defense. 

In 2009, the Obama administration asked Fuller to sentence Siegelman to an additional 20 years in prison if he loses his appeal to the Supreme Court. This was yet another illustration of how authorities close ranks with one another to cover up prosecution wrongdoing and protect good relations with U.S. senators. Scrushy, the former CEO of HealthSouth, Inc., was released this spring to a half-way house after serving most of the seven-year sentence Fuller imposed in 2007.

The Siegelman case is by now a disgrace worldwide in human rights circles. So, it has attracted the most attention to Fuller's courtroom of all his cases.

But from the first, our Project and others have sought to show that the  case was just one part of a pattern involving many others within the justice system. Thus, Martin's news story this week barely mentions the Siegelman/Scrushy case.  Also, Horton in 2007 broke the story of a Missouri attorney, Paul B. Weeks, III, who compiled a remarkable 180-page filing to show that Fuller should recuse himself from a major civil case litigated by Weeks, and then be impeached for corruption in trying to bilk Alabama's pension system of $330,000. In the background of that case but not specifically mentioned in the filing were allegations that one of Fuller's employees was in effect blackmailing him because of Doss connections and a separate inter-office romantic affair by Fuller with a staffer. Fuller recused himself. But the Weeks filing disappeared from court files.

Three years ago, I initiated major research on this project as a senior fellow for the Shuster Institute for Investigative Journalism at Brandeis University. The Huffington Post front-paged my first report, Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows. It included the first interview anywhere with Weeks, who described how his faith in the legal system was shattered after he delivered more than 50 bound copies of his impeachment evidence to relevant Justice Department, court, bar and Congressional authorities with none caring enough even to ask him a question about the evidence.

The Weeks documents are missing from the federal court files controlled by the Montgomery court clerk's office. But we have preserved the filing in two sections, here and here. This is apparently the only place where the complete document is available online, which represents an ongoing disgrace for the federal PACER system that is supposed to make such documents available for the public nationwide. Litigants after 2003 would have had no idea of the substance of the claims.

In 2009, one of my next major columns was Alabama Decisions Illustrate Abuse of Judicial Power, also published on the Huffington Post. It moved beyond the Siegelman case to examine several other major criminal and civil cases handled by Fuller, each also tainted with an appearance of unfairness. The judge declined my request for comment, citing his position.

This week's developments will prompt many new questions, including to authorities at the Senate and Justice Department. Before then, however, I want to echo Bob Martin's words: Divorce disclosures are inherently sad and sensitive, albeit necessary in the public interest in this instance. For those reasons, I obtained copies of the divorce papers last week and alerted several Alabama colleagues, including the talented and intrepid blogger Roger Shuler. But we refrained from publishing anything until today. Martin deserved his scoop, and there's nothing quite like an old-school news editor to break bad news in newsprint. Not coincidentally, Martin is one of a dwindling number of publishers of a locally owned newspaper in his region, and indeed nationally.

There will be plenty more to write about as the days more forward. Already, Shuler has written hundreds of perceptive columns on this topic both for Alabama and national audiences, I suspect the most powerful are still to come.

One of my next steps will be to revisit this matter with the U.S. Senate Judiciary Committee. Its last response to me about Fuller was conveyed two years ago in an email with a tone of irritation, saying there was nothing unusual about its oversight of Fuller.

That simply illustrates why the Senate is part of the problem.


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Related News Coverage

Update
OpEd News, What Federal Judge Fuller's Ugly Divorce Has to Do with Don Siegelman, (Interview of Andrew Kreig by Joan Brunwasser), May 25, 2012. The government's frame-up of Siegelman, Alabama's most popular Democrat, was the culmination of a two-decade plan by Karl Rove and his business allies to transform Alabama state politics and courts from historically Democratic to overwhelmingly Republican. Parallel developments occurred also in Mississippi and Louisiana, but it was most dramatic in Alabama, where Rove and the Bush family have longstanding ties and where the historically Democratic black population is the smallest of any Deep South state. This rout of Democrats has left the party so enfeebled that the national party has in effect ceded to Republicans much of the control over the justice system in these regions, as otherwise in the guts of government. For example, the Obama administration left in office until last spring the Bush-appointed U.S. attorney who helped frame Siegelman, and then named as her successor a man who as a defense attorney represented the chief witness against Siegelman. This created a perverse incentive to keep a lid on the scandals. Further, Congress is abandoning its watchdog role except in a few partisan matters. In this case, we now know that some prominent Democrats from Alabama in effect sold out Siegelman for their own selfish purposes by bad-mouthing him and trial critics behind-the-scenes in Washington.

Scribd, Reporters' Petition to Unseal Alabama Federal Judge Mark Fuller's Divorce Records, May 24, 2012. This is a petition by journalists Andrew Kreig, Bob Martin and Roger Shuler to the Montgomery (AL) Circuit Court to unseal the divorce records of U.S. District Judge Mark Fuller.

Legal Schnauzer, Court File Is Sealed In The Wake Of Press Reports About The Mark Fuller Divorce Case, Roger Shuler, May 22, 2012.  The court file in the divorce case of U.S. District Judge Mark Fuller has been sealed, multiple sources tell Legal Schnauzer. It's not clear when the case was sealed, but it appears to have happened since news reports broke last Thursday, outlining allegations of extramarital affairs, drug abuse, domestic abuse, and other misconduct against Fuller. The judge is best known for his role in presiding over the prosecution of former Alabama Governor Don Siegelman in 2006. Fuller filed a motion to seal on April 20, citing security concerns related to his status as a federal judge. Attorneys for his wife, Lisa Boyd Fuller, filed an objection on April 25, arguing that certain sensitive information  (financial matters, addresses, etc.) could be redacted but that the overall file should not be sealed. (See the Motion to Seal and Objection to Complete Sealing of File at the end of this post.)  Potential embarrassment for one of the parties, via press coverage, almost never presents valid grounds for sealing a divorce case. Is Mark Fuller being protected in a way that a regular citizen would not be? It sure looks that way.

Montgomery Independent, Federal judge's lengthy affair with court worker is exposed, Bob Martin, May 16, 2012. On April 10, Lisa Boyd Fuller filed for divorce in Montgomery County against United States District Judge Mark Everett Fuller.

Montgomery Independent / Wetumpka Herald, Fuller’s ethics called into question in suit, Bob Martin, May 16, 2012. The past judicial record of U.S. District Judge Mark E. Fuller of Montgomery has demonstrated his failure on many occasions to step aside from cases thought by lawyers to be compromised by his personal, financial or political interests. This past month personal interests came to the forefront of Fuller’s life with the filing of divorce papers by his wife, Lisa. The long term abuse of trust by Fuller, described to me from sources inside the U.S. Courthouse in Montgomery and others continues today and has lasted at least 4 years. It involves a former female courtroom deputy in her late 30s with children ages 9 and 14. Her husband obtained a divorce several months ago.

Legal Schnauzer, Sex, Drugs, and Violence Are At The Heart Of Divorce Case Against Siegelman Judge Mark Fuller, Roger Shuler, May 18, 2012.  A request for admissions can be one of the most entertaining documents in a lawsuit. The requesting party, in so many words, is saying, "We all know the following statements are true, so why don't you admit to them so we can haggle about something else?"  It can be a rare moment of clarity in a legal action, where one party is trying to cut through the many layers of BS and establish facts. That doesn't mean the receiving party is going to admit to everything--or anything--in the request. But the effort to get at what one party considers to be the clear truth can be most enlightening.

Legal Schnauzer, Siegelman Judge Faces Divorce Complaint That Hints At Extramarital Affairs, Drug Use, Roger Shuler, May 17, 2012.  Mark Fuller, the federal judge who presided over the prosecution of former Alabama Governor Don Siegelman, faces a divorce complaint that strongly hints at extramarital affairs, illicit drug use, driving under the influence, and other misconduct.  Lisa Boyd Fuller filed for divorce on May 10, 2012, and court filings since then point to serious allegations against her husband. Will the divorce case raise questions about Mark Fuller's fitness to be a U.S. district judge? Will it provide an avenue for Siegelman and codefendant Richard Scrushy to have their convictions overturned?

United Press International, Equity acquires Doss Aviation, Dec. 23, 2011.  A Colorado provider of aviation support services to the U.S. government and military has been acquired by private equity firm J.F. Lehman and Co. The equity company, in announcing the agreement, didn't disclose the terms of the acquisition of Doss Aviation Inc. "Doss Aviation is an ideal fit with J.F. Lehman," said Stephen Brooks, a partner at J.F. Lehman. "Doss Aviation has strong, long-standing relationships with its customers, an outstanding workforce and a reputation for delivering exceptional customer service.  "We look forward to partnering with the management team to achieve the company's strategic goals." Doss, with 14 locations worldwide, engages in aircraft crew training and aircraft maintenance as well as military base logistics. "This marks the beginning of a new and exciting era for the company," said Ken Smith, president and chief executive officer of Doss Aviation. "As a firm focused on the defense and aerospace markets, J.F. Lehman will augment our team with a group of experienced investment professionals and industry experts with a proven track record of creating value by helping its portfolio companies meet their goals for growth and profitability."  

Colorado Springs Gazette, Doss Aviation sold to private equity group, Wayne Heilman, Dec. 22, 2011.  Colorado Springs-based Doss Aviation has been acquired by a New York-based private equity firm that specializes in buying and growing companies in the aerospace, defense and maritime industries. J.F. Lehman & Co., headed by former Navy secretary and 9-11 Commission member John Lehman, announced Thursday that it had acquired Doss for an undisclosed price, with debt financing arranged by BNP Paribas, Abacus Financial Group LLC and Babson Capital Management LLC.  “Doss Aviation is an ideal fit for J.F. Lehman,” Stephen Brooks, a J.F. Lehman partner, said in a press release. “Doss Aviation has strong, long-standing relationships with its customers, an outstanding workforce and a reputation for delivering exceptional customer service. We look forward to partnering with the management team to achieve the company’s strategic goals.” He was not available for further comment.

Frank Johnson Federal CourthouseLegal Schnauzer, George Will, Of All People, Stands Up for Justice in the Don Siegelman Case, Roger Shuler, Feb. 12, 2012. Who could have imagined that George Will would prove to be more progressive than Barack Obama on fundamental matters of justice? Will, probably the nation's foremost conservative columnist, writes in his most recent piece that the U.S. Supreme Court should review the convictions of former Alabama Governor Don Siegelman and co-defendant Richard Scrushy to ensure that overzealous prosecutors are not criminalizing standard political behavior.

Justice Integrity Project, Judge Denies Siegelman Co-Defendant Scrushy New Trial, Andrew Kreig, Jan. 24, 2012.  An Alabama federal judge imposed a reduced 70-month prison term for former HealthSouth CEO Richard Scrushy Jan. 24 on a 2006 corruption conviction after denying Scrushy’s request for a retrial based on new evidence. In the courthouse at left (file photo), Middle District Chief U.S. District Judge Mark E. Fuller re-sentenced Scrushy for bribery, conspiracy and fraud charges involving the one-time billionaire’s donation of $500,000 beginning in 1999 to the non-profit Alabama Education Foundation at the request of then-Gov. Don Siegelman.


2009

Huffington Post, Alabama Decisions Illustrate Abuse of Judicial Power, Andrew Kreig, June 10, 2009. The plight of litigants who face a biased judge is illustrated by the track record of a prominent Alabama federal judge, as well by major recent decisions requiring new trials in West Virginia and Georgia courts. The track record of Chief U.S. District Judge Mark E. Fuller of Montgomery, Alabama shows that he continues to supervise cases compromised by his personal, financial or political interests despite his promise at his 2002 confirmation hearing to recuse himself from any conflicts. Exposure of Fuller's record is timely because of the Senate's forthcoming hearings for Obama administration judicial nominees, and because of growing concerns about the recusal standard. These include the U.S. Supreme Court's 5-4 ruling June 8 that a West Virginia Supreme Court judge should have recused himself from a case involving a major contributor to his judicial election campaign.

2008

CBS 60 Minutes, Did Ex-Alabama Governor Get A Raw Deal? Scott Pelley, Feb. 24, 2008.  Is Don Siegelman in prison because he's a criminal or because he belonged to the wrong political party in Alabama? Siegelman is the former governor of Alabama, and he was the most successful Democrat in that Republican state. But while he was governor, the U.S. Justice Department launched multiple investigations that went on year after year until, finally, a jury convicted Siegelman of bribery.

2007

Harper's No Comment, The Pork Barrel World of Judge Mark Fuller, Scott Horton, Aug. 6, 2007. For the last week, we’ve been examining the role played by Judge Mark Everett Fuller in the trial, conviction, and sentencing of former Alabama Governor Don E. Siegelman. Today, we examine a post-trial motion, filed in April 2007, asking Fuller to recuse himself based on his extensive private business interests, which turn very heavily on contracts with the United States Government, including the Department of Justice.  The recusal motion rested upon details about Fuller’s personal business interests. On February 22, 2007, defense attorneys obtained information that Judge Fuller held a controlling 43.75% interest in government contractor Doss Aviation, Inc. After investigating these claims for over a month, the attorneys filed a motion for Fuller’s recusal on April 18, 2007. The motion stated that Fuller’s total stake in Doss Aviation was worth between $1-5 million, and that Fuller’s income from his stock for 2004 was between $100,001 and $1 million dollars.

 

Radio Update

Scott Draughon

Following our MTL Washington Update radio segment with Scott Horton on May 17, Scott Draughon and I will interview two accomplished young professionals excited to enter the field of investigative reporting. Scott Draughon, left, got the idea after one of our recent shows focused on challenges faced by traditional news organizations. He wanted to hear directly from young people beginning their careers.

Lydia Beyoud

Lydia Beyoud, right, is a graduate fellow at the Investigative Reporting Workshop in Washington, D.C. and is completing her master's degree in Broadcast Journalism and Public Affairs at American University in Washington, D.C. She is a graduate of Portland State University in Portland, Ore., where she obtained a bachelor's in international studies with a Middle East and North Africa focus. Lydia has been an associate producer of Latin Pulse Podcast, has contributed articles to the Oregonian newspaper and the Middle East Journal, interned at Portland Monthly magazine, and has published literary translations with Words Without Borders.

Rachael Marcus

Rachael Marcus, left, works at the Center for Public Integrity, a nonprofit, nonpartisan investigative news center as an American University Fellow. She is currently working towards her Master’s degree in journalism at American University. A graduate of Reed College in Portland, Ore., Rachael majored in political science with a focus on international relations. Before joining the center, she interned for the Portland Mercury, an alternative newsweekly, and freelanced for several local newspapers and magazines in her hometown of Laguna Beach, Calif. and Portland, Ore.

Scott Horton,  the show's first guest, is a New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict. He lectures at Columbia Law School. A life-long human rights advocate, Scott served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. He is a co-founder of the American University in Central Asia, where he currently serves as a trustee, and has been involved in some of the most significant foreign investment projects in the Central Eurasian region. Scott recently led a number of studies of abuse issues associated with the conduct of the war on terror for the New York City Bar Association, where he has chaired several committees, including, most recently, the Committee on International Law. He is also a member of the board of the National Institute of Military Justice, the EurasiaGroup and the American Branch of the International Law Association and a member of the Council on Foreign Relations. He was a partner at Patterson, Belknap, Webb & Tyler until January 2007, when he left to write a book on private military contractors and to manage a project on that subject for Human Rights First. Since April 2007 he has also been a legal affairs and national security contributor to Harper’s magazine and the author of a regular opinion column for the American Lawyer.