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

U.S. District Judge Mark E. Fuller

An Alabama newspaper has exposed a judicial sex scandal that deserves national prominence — which it’s not getting so far.

The May 17 headline was “Federal judge’s lengthy affair with court worker is exposed.”

This is a scandal not simply for Mark Everett Fuller, shown at left in 2006 during his seven-year term as chief federal judge controlling operations of the state’s Montgomery-based middle district. The scandal shames those in the Justice Department, federal court system and the United States Senate who have protected Fuller for a decade.

Let’s start with this week’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. Her interrogatories asked about drug use and drunk driving.

Martin 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, an experienced editor at the locally owned paper, supplemented his news article with an editorial that said he was uncomfortable writing about a divorce.

“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.”

Martin cited expert perspective from Scott Horton. Horton is an Alabama native, prominent lawyer, law professor and high-profile legal commentator on Huffington Post and elsewhere. He has written two score columns for Harper’s beginning in 2007 documenting abusive practices by Fuller, especially in the 2006 corruption trial of former Alabama Gov. Don Siegelman (1999-2003), the state’s most important Democrat.

Fuller issued many pro-prosecution rulings in the case while also becoming enriched through his long-secret controlling ownership of Doss Aviation, a military defense contractor that receives huge federal contracts.

Horton commented at length for Martin’s column on the ethical problems arising from the divorce allegations. Horton concluded:

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

Scott Horton

Horton said, for example, the Justice Department must have known of the judge’s affair, creating the possibility of improper pressures in many criminal and civil cases of huge importance in the region.

On May 17, Horton was the featured guest on my weekly public affairs radio program, MTL Washington Update. On the show, Horton said he independently verified aspects of the judge’s affair based on Alabama’s sources and divorce papers filed by Gregg’s husband last fall. Also, he described a variety of ways in which such a liaison raised questions about court administration.

Is This News?
Martin says he distributed his column to 25 newspapers on his regional syndication list. But Google searches two days later indicate that, as of May 18, his report has received only slight attention.

Therefore, if the public is going to know about this new scandal regarding Fuller it needs to be via the independent electronic media, as so often in the past in the Siegelman case. In 2008, a major CBS 60 Minutes exposé on the case failed to air as scheduled on WHNT-TV, the state’s CBS-TV affiliate in Huntsville. The station later explained that technical difficulties foreclosed most of that 12-minute segment.

Sex scandal allegations often create disagreement between editors — and between readers — on whether news organizations should protect the privacy of important public figures.

I think that those who seek vast power enabled by taxpayers deserve scrutiny, especially given all the history, human suffering and dollars involved here. Yet most editors obviously have decided that the public doesn’t need to know any of this.

So, this is an excellent opportunity for readers to instruct all of us through reader comments. I, for one, shall pay close attention with a view that reasonable people can differ.

The Siegelman case arose from his 1999 request as governor for an Alabama businessman to donate to the non-profit Alabama Education Foundation, and Siegelman’s subsequent reappointment that year of the donor to a state regulatory board on which the donor had served under previous administrations. I summarized the hundreds of news stories about the government’s prosecution of Siegelman for this on the site of the Justice Integrity Project, a non-partisan legal reform group I lead. My coverage has now reached its third anniversary in a project I initiated in 2009 as a senior fellow at the Schuster Institute for Investigative Journalism at Brandeis University.

Briefly, Siegelman is free on bond awaiting results of his last-ditch Supreme Court appeal this spring of corruption convictions before Fuller in 2006.

The Siegelman jury provided a mixed verdict on June 15, 2006. Minutes later, the rarely photographed Fuller invited freelance photo-journalist Phil Fleming into judicial chambers to commemorate the occasion.

Fleming has released to me his copy of the private portrait (shown above). The blunt-speaking Fleming also told me that he advised the judge during the photo-shoot to stifle what Fleming told him was a “Cheshire cat” smile in order to look sufficiently dignified.

That implication of bias is congruent with testimony by Alabama attorney Dana Jill Simpson, who helped make this case nationally famous in 2007 and then later in the 60 Minutes broadcast. Simpson, at right, was a longtime Republican operative (and now a political independent) who says she worked with Karl Rove and others as a confidential opposition researcher while also earning large sums in the government contracts field.

Dana Jill Simpson

In sworn statements in 2007, she described Republican plots beginning in 2002 whereby the Justice Department would indict Siegelman with the assistance of “Karl” in order to remove the state’s most popular Democrat from politics.

She swore that after a first prosecution failed in 2004 she heard again in early 2005 that a new federal case against Siegelman would be drawn up. She heard, according to her 2007 testimony, that the secret indictment would then be channeled to Fuller because the judge “hated” Siegelman and would “hang” him because Siegelman as governor had appointed a prosecutor in 2002 to examine Doss-related matters.

Also, Simpson in 2007 produced documentation that the Bush administration was in the process of enriching the judge with $300 million in no-bid contracts to Doss, a military firm the judge secretly controlled as its largest stockholder with a 43.75% share.

Doss trains Air Force pilots and refuels Air Force planes, including Air Force One. I reported all of this three years ago in a story broken on the Huffington Post, Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows.

Rove and other Republicans have denied Simpson’s claims, but never under oath subject to detailed cross-examination. A House Judiciary Committee’s July 2009 questioning of Rove, the only person publicly known to have been examined, was hamstrung by a variety of rules and a timid approach, as I reported at the time.

Fuller issued an opinion in 2007 ruling he had no bias against Siegelman and his co-defendant, businessman Richard Scrushy, whom Fuller sentenced to a seven-year term.

Other judges and the Justice Department have vouched for Fuller’s appearance of fairness under a Supreme Court legal standard requiring recusal if any reasonable, unbiased person might doubt fairness. Fuller and Rove have declined my requests for comment. I’ll update this column with any new comments received.

The Obama administration has closed ranks with the Bush administration to oppose all appeals and investigations. Yet more than 100 former state attorneys general from more than 40 states have now told the Supreme Court that Siegelman’s major convictions do not constitute an actual crime under U.S. law.

Bigger Stakes Than Siegelman’s Fate
The Siegelman case has thus attracted the most attention to Fuller’s courtroom.

But from the first, our Project and others have shown that the case was just one part of a pattern involving other disgraceful conduct within the justice system. My 2009 Huffington Post column, Alabama Decisions Illustrate Abuse of Judicial Power, showed how Fuller shaped in highly dubious ways litigation outcomes in election, employment and environmental cases.

None of this should have been a surprise. In 2002, Alabama’s pension officials thwarted Fuller’s effort as a full-time state prosecutor to bilk the system out of $330,000 by his advocacy of unmerited pension benefits for a former staffer.

Yet Alabama’s two Republican senators, Richard Shelby and Jeff Sessions, pushed Fuller forward for a lifetime appointment, which Fuller received from a 2002 unanimous voice vote by the United States Senate with no serious discussion of his Doss, pension or other sensitive matters.

U.S. Sen. Jeff Sessions (R-AL)

Most dramatically, Missouri attorney Paul B. Weeks III filed with Fuller in 2003 a remarkable 180-page brief to show that Fuller should recuse himself from a major civil case litigated by Weeks. In it, Weeks argued also Fuller should be impeached for corruption in trying to bilk Alabama’s pension system of $330,000 when Fuller was a state prosecutor before his judicial confirmation in 2002.

Weeks discovered from confidential interviews in Alabama that one of Fuller’s prosecution office employees appeared to be pressuring him to get unmerited retirement money, using as leverage Fuller’s secret Doss work during his full-time state job and Fuller’s purported romantic affair with a prosecution-office underling (different than Gregg).

The 2003 filing was never posted electronically in the federal court files controlled by the Montgomery federal court clerk’s office. That’s yet another mysterious circumstance in a courthouse seemingly teeming with unresolved irregularities. But we have obtained and preserved the filing in two sections, here (the Affidavit and Exhibits 1 to 13) and here. All of this history is in the Weeks filing and in our previous columns.

Doss last year boasted on its website, that it expected billions of dollars in forthcoming federal contracts. But that announcement along with much of the rest of the company’s institutional history has since been purged from the site following the company’s acquisition in December by J.F. Lehman, a private firm controlled by a former Navy Secretary by that name. The sale keeps the firm’s finances private.

Fuller’s wife is seeking an accounting of family assets. Fuller has asked that Montgomery County’s Circuit Court 15 seal his file over the objections of his wife. This would be an unusual development in a divorce case, and would underscore how judges and court personnel protect each other from public scrutiny.

New Questions
This week’s developments should prompt many new questions, including to the Senate and Justice Department. Two years ago, a spokesperson for the Democratic-led U.S. Senate Judiciary Committee wrote me there was nothing unusual about the committee’s review of Fuller.

Of course there was nothing unusual. That’s because the U.S. Senate — which rubber-stamped Fuller’s nomination and has never reviewed the Siegelman prosecution or those like it — is in the business of rhetoric about justice and morality.

As for the real thing? Maybe not so much.

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