MONTGOMERY, Ala., April 30, 2007 -- While Chief District Judge Mark Fuller was busy issuing orders related to Richard Scrushy on Monday, former Governor Don Siegelman was visiting his probation officer with his attorneys, Vince Kilborn and David McDonald.
It's been almost a year since the former governor and Mr. Scrushy were convicted of bribery, conspiracy and mail fraud charges related to $500,000 that made its way to Siegelman's Alabama Education Lottery Foundation and for which the government claims the former HealthSouth CEO was given a seat on a state hospital regulatory board. Siegelman was also convicted on an obstruction of justice charge.
As the probation office prepares its final pre-sentencing investigation report for the judge, Siegelman and his attorneys along with attorneys for the government met with the probation officer to discuss differences in the draft report. This process is to try to work out as many differences as possible before the final report goes to the judge and the sentencing hearing is conducted.
The meeting lasted approximately three hours Monday afternoon and WSFA was the only news organization on hand to talk to the former governor and his attorneys in person immediately following the meeting.
Attorney Vince Kilborn explains what went on. "The probation office offers each side a chance to make comments on the recommendations and so one of the big things was the government wants to charge Governor Siegelman with all the crimes he got found innocent of. They contend that those crimes should be considered by Judge Fuller and the point is they're not crimes...All the testimony by Lanny Young about Goat Hill, the revenue rulings...They want to throw all that in as part of what he should be punished for and we say,'Y'all tried that once and failed and you shouldn't try it again.' It's just fundamentally unfair. Why should we have to come in and retry the case."
Kilborn says the whole process was "really about what the probation officer will recommend to the judge. We certainly don't think there was criminality that justifies a heavy sentence like the government's trying to get. Particularly with 90 percent of this case he was found innocent of and we don't think that ought to be considered again. So we're vehemently fighting that."
Kilborn says the meeting lasted so long because "the federal sentencing guidelines are complicated, tough, hard to understand and you've just got to fight your way through them. It's a lot more trying and boring than what I thought."
Siegelman sentencing attorney Susan James says,"The government wants more than the probation officer suggested and so we're making objections - both factual arguments as well as legal arguments, as to the enhancements that are suggested. They had objections. We had objections. And so we get to try to convince the probation officer."
Kilborn says he thinks Judge Fuller will be fair. "What we are asking in addition is it would not be fair to consider all this innocent conduct. In other words - if you're going to say he ought to be punished because of what Lanny Young did, we've got to retry the whole case."
As to the punishment Kilborn says, "We're going to leave that up to the judge. We think if he considers just what the convictions were for; we think the results will be fine. I think Judge Fuller is going to be fair. We're just anxious to get it behind us so we can take an appeal and get this reversed."
Ms. James says there wasn't "much resolution to this because she (the probation officer) listened as did her supervisor to all of the arguments and then she'll go back and decide whether she agrees with what side. If she stays the same, and there are unresolved objections, they will go to Judge Fuller for him to resolve at the time of sentencing. It's clear we think Don Siegelman's innocent. We don't want to see him get any custody sentence at all. And our thrust is going that way. In January of '05, the Supreme Court handed down the decision on Booker and said that the guidelines are now advisory and they're not mandatory and so Judge Fuller, the process now, we've got a hybrid situation and Judge Fuller will consider the guidelines, make guideline findings, and then at that point he can consider whether he should vary from the guidelines. It's called a variance and if he decides he should vary from the guidelines he has to consider certain factors under the federal code, but he can give a sentence. The government wants 20 years; we say probation. Point being is we want to make sure he stays in the community until the appeal is decided. So any custody sentence - a day or a month or a weekend would be too much."
James says she believes her side has good arguments to make when the issue goes before Judge Fuller at the sentencing hearing on June 26.
"We believe we have good arguments, factors that the court can consider...to try and convince the judge that he should do something substantially less than what the government is seeking and what the probation officer has recommended. But if nothing else, we've certainly made what we believe are compelling arguments that we'll make at sentencing that the guidelines that have been suggested by the government and even the probation officer are wrong and they would be excessive under any circumstance."
And what does the man at the center of the storm have to say. The former Governor told WSFA's Eileen Jones that he was doing well. "I'm not stressed. I'm not worried. I'm eating, sleeping, exercising."
Siegelman says he believes it's wrong that "I'm convicted of bribery while Jack Abramhoff brings $13 million of Indian casino money in here to defeat the lottery and nobody is investigating that. There's something wrong with this picture and as I've said before, it's the origin of the case that bothers me and I know there was politics at the origin and I think that Congress will find that...I think the investigation that's going on in Washington now about the abuse of the
U.S. Attorneys will lead them to Montgomery, Alabama. But in the meantime, we've got to win this legal case. So I believe, as my lawyers believe, that Judge Fuller will be fair in the sentence and then we'll get to appeal to the 11th Circuit."
"I think Judge Fuller will be fair. He has been a politician himself. He has been in situations where he has borrowed money. He's had campaign loans. He knows what that's about. There's absolutely nothing wrong with appointing people to positions after they've given you a campaign contribution. The president does it with ambassadors. This governor has done it on multiple times and for them to do this to me I think is wrong and it's unfair. But it's a legal issue now. We're going to fight it and we believe the judge will be fair and we're going to appeal whatever decision comes down the pike in June."
Siegelman goes back to the investigations concerning the U.S. Attorneys going on in Congress. "Eventually Congress will peel enough of the onion back to see where this came from - yes. It's a process the probation officer listened to both sides and I'll have a chance to meet with her later and give her my thoughts and that will be pleasing to me."
When asked about how he would handle any sentence, perhaps to prison, Siegelman said. "We'll just have to wait and see. I can handle anything. I'm serious. I believe in the system of justice and I think Judge Fuller will do the right thing nd then we get a chance to appeal."
Sentencing is scheduled for June 26th for both Mr. Siegelman and Mr. Scrushy.