L’affaire Dreyfus, L’affaire Sherrod, et L’affaire Siegelman.

OK, I know, at the end of my previous post, I said “I got nothing else to add,” referring to the Shirley Sherrod affair. Strictly speaking, I don’t, but thinking about it - and Keith Olbermann's brilliant commentary on it (linked in that post) - led me to connect the dots to another matter, even closer to home than Georgia. It’s just the sort of thing to make one want to channel one’s inner Émile Zola, and cry “J’accuse!”

But to appreciate the context of where I am heading, a brief review of the Sherrod case is necessary. At 11:18 a.m. Monday, July 19, right wing mud artist Andrew Breitbart posted the edited version of the Sherrod video. As we now know, that excerpt was taken out of context, and made Sherrod look like she had short-changed a white farmer based on his race. (For those who want detail about how the slander unfolded, mediamatters.com has put together this excellent timeline, complete with screen caps and links.) By later that day, as Sherrod was en route from her home in South Georgia, near Albany, to a work conference at Athens, she was called (for the second time while en route) by Cheryl Cook, Deputy Undersecretary of Agriculture, and was instructed to pull off the road and email her resignation from her BlackBerry right then. According to Sherrod, Cook told her, “Well, Shirley, they want you to pull over to the side of the road and do it because you’re going to be on Glenn Beck tonight.” Apparently, when the sensibilities of Fox News viewers are at risk of being offended, due process, fairness and accuracy are, at best, tertiary concerns for this Administration. Of course, we now know that (a) Sherrod’s remarks in the Breitbart/Fox video were edited, so as to not reveal that she saw it would be wrong not to help the white farmer; (b) she in fact helped the white farmer save his farm; and (c) the farmer, his wife, and Sherrod are now fast friends.

Not that the Administration’s actions in the Sherrod case are unprecedented. In its earliest days, this aloofly cerebral Administration took lightning-swift action to vindicate a claimed wrong against a Republican, former Senator Ted Stevens of Alaska. Stevens, you will recall, was convicted of accepting roughly $100,000.00 of work on his Alaska home - shown here - in exchange for favors to an Alaska oil contractor. (Do you ever notice, there always seem to be oil people somewhere in a story on corruption?) Was there ever any doubt that the work was done? No. Was there ever any claim by Stevens that he paid for all of it? No. (Stevens did, at one point claim he paid “all the invoices [he] was given” - an obvious dodge.) Was there any denial that Stevens did not report the gift, as he was required by law to do? No. And the contractor testified that the arrangement was part of a quid pro quo for favors from Stevens, and his son, the president of the Alaska Senate. During the runup to the Stevens trial, due largely to an understaffed prosecutorial team, there were delays in getting some documents to Stevens’s lawyers, that were in the possession of the government. Stevens’s lawyers were entitled to these documents under the rules of “discovery” of the Government's case.

I looked up the law on prosecutors delaying the production of “discovery” materials, and found a couple of quotes from court opinions on the issue:

As for the alleged discovery abuses, Carlos has not claimed any prejudice resulting from any delay in receiving the documents and information at issue. Nor has he made any showing that the government deliberately withheld any discovery items from him. Consequently, the instances of alleged discovery abuse did not amount to a denial of due process. U.S. v. Carlos, (C.A. 9 (Wash.) 1999).

We can find no evidence of prejudice in the record before us. Defense counsel apparently was satisfied with the additional time granted by the trial judge to examine the documents. After the recess ended, defendant's lawyer did not ask for any more time nor did he assert that any more was required. Even though over one thousand documents were allegedly involved, no renewed mistrial motion was made during the trial after Roberts was re-examined on July 11. U.S. v. Kaplan, (C.A. N.J. 1977).

The net effect of these seems to be that, unless Stevens could (a) claim he was prejudiced by the delay, and (b) wasn’t afforded a chance for him or his lawyers to look over any documents produced at trial (they apparently could have asked for a continuance, which they didn’t), he should not have been entitled to have his conviction thrown out. Yet not only was Stevens’s conviction thrown out, it was thrown out with the consent of the Obama Administration, and Attorney General Holder announced that the Government would not attempt to retry Stevens on charges of which he was, by any objective standard, guilty.

Now, don’t get me wrong. The rights of criminal defendants are important. If there is abuse by a prosecutor, the defendant should at least get a new trial, and if the abuse is intentional, rather than negligent, a court should look seriously at throwing out the charges. Even if the defendant is guilty. Nothing punishes a “bad” cop or prosecutor like having cases thrown out.

But - and this gets to the point you have been anticipating since reading the title - a little consistency would be nice. If the apparently minor-to-so-so issues in the Stevens case called for the Attorney General to grovel before television cameras to apologize for wrongs done to a Republican Senator who was almost certainly guilty, how long should the hair shirts be worn for the undisputed wrongs visited by the Government on former Governor Don Siegelman? I am not going into length into that case, because it isn't necessary to touch on more than a handful of points to show, to any fair observer, that the problems with the Government’s conduct in the Siegelman case make those in the Stevens case look like Friday morning’s Dunkin’ Donuts.

Late-produced “discovery” documents? How about concealed exculpatory evidence? The only testimony of a quid pro quo in the entire Siegelman trial (which the Government was required to prove) came from former aide Nick Bailey, who had cut a deal with prosecutors. What Siegelman’s attorneys were not told - as the law required they be told - was that Bailey had given so many contradictory statements to the FBI and prosecutors that he had been forced to sit down, get his story straight on paper, and was then led through 24 “coaching” sessions to make sure he “knew” the “facts” he would later relate to the jury. Those of us whose memories of The Verdict can get beyond a 35-year-old Charlotte Rampling can almost hear James Mason waving contradictory statements in front of an exasperated Bailey, and asking, “which one is the lie?”

And now, for juror (and more Government) misconduct. Meet Katie “Flipper” Langer of Montgomery. Ms. Langer, at the time of the Siegelman trial, was a gymnastics teacher in Montgomery. She wound up on the Siegelman jury. During the trial, Republican Judge Mark Fuller instructed the jurors not to discuss the case among themselves until all the evidence was in, and they began deliberations. Ms. Langer almost immediately began emailing another of the prosecution-leaning white jurors. Among the emails of this “impartial” juror was one that said, in part:

[jury foreman] Sam [Hendrix]: gov & pastor [Richard Scrushy] up shit creek. good thing no one likes them anyway. all public officials r scum; especially this 1.

Even if one can excuse Siegelman’s prosecutors for not knowing about this improper contact among jurors at the time, they know about it now. And if Eric Holder doesn’t know this sort of detail about an ultra-high profile prosecution of a former Governor, still pending in the courts, he isn’t doing his job. And still, there has been no dismissal of the Siegelman charges. Yet, the Flipper saga does not stop there. During the course of the trial, an FBI agent sitting at the table with the prosecutors caught Langer’s eye. Langer, passing notes by way of a U.S. Marshal serving as court security, asked if the FBI agent were single. It doesn’t take Perry Mason to figure out that if Langer wanted her dream FBI date, that jury better not bring back an acquittal. Because this was known to the prosecution team, it should have been disclosed to Siegelman’s lawyers, and a mistrial declared. Instead, it was suppressed by prosecutors, and Siegelman’s lawyers only learned of it, acccording to Time, well after the trial. The moniker, “Flipper”? It was the nickname given Langer by her fellow jurors, as she would entertain them during delays in the jury room by performing acrobatic stunts. In a troubling footnote to the Flipper saga, despite the fact that this egregious conduct on her part is public record, and quickly accessed via Google, Langer - after her graduation from a night law school - is now a member in good standing of the Alabama Bar.

According to the U.S. Supreme Court, the law about improper communications with or among jurors is:

In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court with full knowledge of the parties. Remmer v. U.S., (U.S. 1956).

Sounds like bad news for the prosecution in Siegelman’s case.

Olbermann was right. Shirley Sherrod was seriously wronged. She lost her job, and will spend the rest of her days being used as an example of “racist blacks” by the bobble-headed bigots who watch Fox News. But as badly as Sherrod was treated, it was something of a rhetorical conceit to compare it, as Olbermann did, to the ordeal of the unfortunate Captain Dreyfus. Unemployment hardly compares to being shipped in chains to Devil’s Island. Sadly, Don Siegelman was hit with both. Not only was he sentenced to prison, his 2006 trial effectively torpedoed his political comeback effort, and likely any future in elective office.

The common thread that does connect the Stevens, Sherrod, and Siegelman cases is what Olbermann refers to as “this self-defeatingly above-it-all president.” As Olbermann put it at one point in his Comment:

As you stay silent and neutral and everybody’s president, they are gradually convincing racists that they are the civil rights leaders and you are Police Chief Bull Connor. And then some idiot at Fox News barks, and your people throw an honorable public servant under the nearest bus, just for the sake of “decisive action” and the correct way to respond “in this atmosphere.” Mr. President, please stop trying to act every minute like some noble neutral figure, chairing a government of equal and dispassionate minds, and contemplative scholars. It is a freaking war out here. And the imagined consensus you seek is years in the future, if ever it is to be re-discovered in this country.

Would that there were some way to make Barack Obama read those words every two hours until his bilateral orchiectomy spontaneously reverses. For all the encomia heaped on this President, the truth is becoming a little obvious. Neither his elite academic training, his time in Illinois politics, nor his relatively brief pre-2008-campaign tenure as a Senator (he announced for President 2 years, 1 month, and 8 days after being sworn into the Senate), brought home to him that American democracy presumes the vigorous exposition of both sides of every issue. It is inherently adversarial. When one side isn’t resisting the other’s pressure, the system rewards the non-resisted side with disproportionate benefits. At a more practical level, when an American politician is perceived as a non-fighter, his (or her) political base becomes discouraged and inactive, swing voters are persuaded by the one side of the argument they hear, and his opponents don’t reciprocate the accommodation (and laugh in their cups at his milquetoast persona). Beltway punditry, while still recognizing Obama’s strengths (and there are some), is beginning to comment with regularity on the lack of nuts-and-bolts political skill in this President and his Administration.

In Alabama, nowhere is this political ineptitude more apparent than in the Siegelman case. Apparently, Obama is afraid of upsetting Republicans by doing the legally right thing in the case. Not only has Siegelman, despite far more clear prosecutorial misconduct, not been the beneficiary of a Stevens-like “get out of jail free” card, the Obama-Holder DoJ filed a brief vigorously resisting Siegelman’s attempt (eventually successful) to get the U.S. Supreme Court to review his case. What is even worse, Leura Canary, the Bush-appointed wife of Bob Riley’s campaign manager, remains in charge of the U.S. Attorney’s office in Montgomery, over a third of the way through Obama’s term. And she continues to shamelessly use her position to favor Riley/Republican positions, as when she visibly and publicly subpoenaed legislators to testify before a grand jury as the Legislature was considering bingo legislation, effectively poisoning the political atmosphere for the bill. No one has been indicted, which should surprise no one. Bill Clinton did not even wait for an Attorney General to be confirmed. Immediately on taking office, he dismissed all of George H.W. Bush’s U.S. Attorneys. He wanted this important task accomplished so quickly, he acted through Stuart Gerson, the holdover Assistant Attorney General from the Bush I Administration, who was acting Attorney General at the beginning of Clinton’s term. It was political malpractice for Obama not to do the same, especially given the known history of Bush-era political prosecutions, of which Canary’s were only one example. If I cannot find words, stronger than “malpractice,” to describe what Canary’s continued occupancy of her office 556 days after Obama’s inauguration constitutes, I can find words for what to do about it in the 2012 Alabama Democratic Presidential Primary.

Speaking of Presidential Primaries, my 2008 vote is looking smarter every day. It, too, would have resulted in an historic first if I had been in the majority.

I try to move every post here beyond mere rant, and into the realm of action. Shirley Sherrod is getting a lot of, if not enough, support from around the country. Don Siegelman has to look largely in his home state for help. If you are as tired as I am of the continuation of Bush-era prosecutorial abuse in Montgomery, you can leave a message at the White house on this web page, or you can call to leave a comment at 202-456-1111. I suppose the USPS still delivers to 1600 Pennsylvania Avenue NW, Washington, DC 20500, for those who feel better with pen in hand. Attorney General Holder can be emailed at askdoj@usdoj.gov, phoned on his comments line at 202-353-1555, or snail mailed at 950 Pennsylvania Avenue NW, Washington, DC 20530-0001. I would only suggest that any contact urge both the dropping of the Siegelman charges, as was done for Stevens, and the removal of Leura Canary.