Lost in all the hubbub over the setting of a sentencing date for Richard Scrushy and former Governor Don Siegelman was Judge Fuller's order denying Mr. Parkman's motion for Judge Fuller to recuse himself from the case. We learned from the judge more about what the sealed motion that had generated endless speculation was seeking.More >>
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MONTGOMERY, Ala., April 26, 2007 -- Chief District Judge Mark Fuller has set a sentencing date for former Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. The sentencing will come almost exactly a year after the two men were convicted on charges of bribery, conspiracy and mail fraud. Siegelman was also convicted of obstruction of justice.
When I first reached the former governor, shortly after the sentencing order was issued, he had not yet heard the news and his first reaction, "The sooner the better. The sooner we get sentenced the quicker we get to appeal."
Siegelman, as he has previously stated, mentioned three of the possible areas of appeal:
"The federal funds bribery statute of limitations. The charge should not have been brought. First there was no bribery and the statute of limitations had expired."
Also with the express quid pro quo issue, the judge's instructions were contrary to 11th Circuit on that issue and they ignore the decision handed down by the Supreme Court in McCormick."
"There was blatant juror misconduct of trying to subvert my right to a fair trial by converting jurors to a certain jury verdict. This was a clear violation that was not properly investigated. First if the evidence was there, I should have a new trial. Second, if it wasn't there, who was trying to perpetrate a fraud on the Court.
The evidence that Siegelman is referring to is of course the e-mails purported to have been exchanged between some of the jurors. In the hearings at which jurors were brought in, the jurors were never specifically and pointedly asked (at least in public) whether or not the e-mails belonged to them or if they were exchanging e-mails at any point during the trial or during deliberations.
The jurors allegedly involved have denied the e-mails in a media report.
Siegelman went on to tell me his lawyers "are very confident in all the issues. We feel good about it. It's been a long arduous process, but I'm not the first person who has had to endure a prosecution at the hands of overzealous prosecutors." Siegelman says, "I'm looking forward to sentencing. Once that happens we start everything over again and go immediately to the 11th Circuit. We've probably got at least a year there before they make a decision and at least it gives me a timeframe. I can get back to work and go about starting to make a living for my family and my lawyers."
He says again he's "hopeful the 11th Circuit will seize on all of the issues and order a new trial, so we can proceed along the legal route and be vindicated of these charges." As he is prone to do, Siegelman could not leave Karl Rove and Bill Canary out of the equation. "The investigation all started with Karl Rove and Bill Canary in March 1999 and it will end with either the U.S. Congress discovering this or the courts ordering I get a new trial. We'll continue to proceed along both avenues."
The former governor was in good spirits and insisted his family is doing well. His daughter will leave to start a Master's Degree program in Israel and his son is at doing well at the University of Alabama. Siegelman says, "They've been able to put the prosecution it its proper political context and it has not affected their performance." He says his wife is doing well also.
And what about Richard Scrushy? At first Richard Scrushy told me quietly, "I don't really have anything to say. What can you say really? I think we want to get all of this over with. I was accused, charged and convicted of things I didn't do, anyone who sat through the trial knows that.
"We filed a lot of motions and brought a lot of things out that were wrong and these motions were denied during and after the trial and now my attorneys will file all the appropriate appeals."
"Every person appointed to or in political office including the governor, must be concerned. Anyone that's appointed people to committees even if they were voluntary, if they have appointed someone to a position - paid or unpaid, they need to be very concerned that they will be next. If they can do this to me, certainly people that get jobs can be indicted and most likely will be. This cannot be allowed to stand. It affects every elected official in the United States of America.
We believe in the truth. We believe in our justice system. We just want the opportunity to get the truth out."
Scrushy says his faith will see him through what lies ahead. "My faith is strong. I just thank God for the blessings my family and I continue to receive. I believe God is good. I believe our faith will get us through this. We're spirit filled people and Galatians 5:22 says the fruits of the spirit are joy, peace, kindness, love, longsuffering, gentleness, goodness, and meekness and so we have the patience and strength required to get through the trials we're going through."
I tried to talk to the government attorneys but assistant U.S. Attorney Steve Feaga is out of the office on active duty with the Air Force at the moment and acting U.S. attorney in this case Louis Franklin has not yet returned calls seeking comment.
Judge Mark Fuller also denied the Motion to Recuse filed by Scrushy attorney Jim Parkman. Still before the court are motions related to a jury composition challenge on which Magistrate Judge Charles Coody is yet to rule and a motion asking Judge Fuller to reconsider his previous order denying a new trial.
It's hard to say what pushed Fuller to finally set a sentencing date, but it wouldn't be a stretch to imagine the headaches caused by the filing of the recent denfense motions sent the judge, that many observers said had to have more patience than Job during the trial and it's aftermath, for the Advil bottle.
The Order related to Scrushy's sentencing states the following(the Siegelman order reflects similar information):
"1. That sentencing of the defendant be, and the same is, hereby set on June 26, 2007, at 9:00 a.m. in Courtroom 2F of the Frank M. Johnson, Jr. United States Courthouse Complex, One Church Street, Montgomery, Alabama. If the sentencing hearing is not completed on June 26, 2007, it will continue from day to day until completed.
2. That in accordance with Rule 32(f)(1), Federal Rules of Criminal Procedure, on or before May 3, 2007, the defendant and the Government shall communicate in writing to the probation officer, and to each other, any objections they have as to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the presentence report.
3. That, unless excused in writing by the Chief U.S. Probation Officer of this district, counsel for the parties shall be available for a conference with the probation officer on May 4, 2007, at 10:00 a.m., to discuss and resolve, if possible, factual and legal issues contained in the presentence report. If the probation officer determines or if any of the parties request that a personal meeting be held to resolve the issues, such meeting shall be at the U.S. Probation Office, One Church Street, Montgomery, AL, on the above date and time. Such request for a personal conference shall be made to the probation officer within five (5) calendar days after receipt of the presentence report. Otherwise, the conference shall be held telephonically.
4. To the extent that either the defendant or the Government intends to raise at sentencing any objection to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the presentence report not resolved as a part of the objections conference with the probation officer that objection must be filed in a written sentencing brief with the Court by no later than May 29, 2007. Any such written sentencing brief shall be supported by argument which contains citation to proper legal authority. Should either the defendant or the Government wish to file a response to any objection addressed by a written sentencing brief that response must be filed in writing with the Court by no later than June 12, 2007. Any such written response shall be supported by argument which contains citation to proper legal authority.
5. To the extent that either the defendant or the Government intends to argue at sentencing for a variance or departure that request shall be filed in writing by no later than May 29, 2007. Any such request shall be supported by argument which contains citation to proper legal authority. Should any party wish to file a response to such a request, the response shall be filed in writing with the Court by no later than June 12, 2007. Any such written response shall be supported by argument which contains citation to proper legal authority.
Nothing contained in this Order shall be construed as impairing the rights of any party as established in the Constitution or laws of the United States."