Thursday, July 26, 2012

The Case for Impeaching Federal Judge Mark Fuller

Suppose that you were having to sue someone. A car wreck, perhaps; or maybe you needed them evicted from the house you were renting them. You know you’re in the right, and you go to the courthouse on the day of the trial, confident that, with the facts and the law both on your side, the judge will render a proper judgment in your favor.

Then, when you lose the case, you are dumbfounded. You file an appeal, but you can’t figure out how you could have lost.
Only after the trial, while the appeals court is considering your case, do you find out that the judge who ruled against you has extensive business dealings with the party you were suing in front of him. Not only that, your opponent’s lawyer also represents your opponent in his business dealings with the judge.

If you picture yourself being outraged, then you have a pretty good idea how former Governor Don Siegelman felt about his 2006 kangaroo-court conviction before George W. Bush-appointed U.S. District Court Judge Mark Fuller.

At every turn of Siegelman’s trial, Fuller improperly ruled against Siegelman and co-defendant Richard Scrushy, and for the prosecution. He failed to take action when the Government failed to disclose evidence favorable to Siegelman, as he should have done under the rule of Brady v. Maryland, 373 U.S. 83 (1963). He silenced Siegelman’s
attorneys from making relevant and legal arguments to the jury. He let charges go to the jury which were later ruled improper by the U.S. Supreme Court. Not only that, Fuller failed to notify defense attorneys that a female juror, by the name of Katie Langer, had been passing notes through Judge Fuller’s bailiff, asking if the FBI agent sitting at the prosecution table was single. I can’t imagine how her not wanting Mr. Potential FBI Dream Date to be angry about an acquittal could have influenced her vote on the jury. (“In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial  is ... deemed presumptively prejudicial, United States v. Khanani, 502 F.3d 1281, 1291 (11th Cir. 2007)).

Fuller’s conduct in the trial (I have only named a handful of his pro-Government rulings) gave Siegelman’s attorneys lots of ammunition in his partially-successful appeal, and is doubtless going to provide them more fodder in the § 2255 proceeding that is likely going to be filed, now that the direct appeals are playing out.

But what do those violations of Siegelman’s rights have to do with the hypothetical case I described in the first paragraphs? To understand that, you have to know a little something about Judge Fuller. Even while serving as a district attorney for several years before being appointed a federal judge, Fuller found time to be a full-time businessman. His extensive business activity did not miss a beat when he took the presumably full-time job of federal judge.

Fuller was for years, including during the Siegelman trial, a principal of Doss Aviation, Inc.; some reports made him a 43% owner.¹ He was listed on corporate reports as the company’s CEO, even after becoming a federal judge. Doss Aviation’s 2002 Annual Report on file with the Alabama Secretary of State² shows Fuller as the corporate president, with his office listed as 1 Church Street in Montgomery. That just happens to be the United States Courthouse, where Fuller’s court sits.³ In his 2010 financial disclosure form as a federal judge, Fuller valued his interest in Doss at between $5,000,000.00 and $25,000,000.00; with an additional $500,000.00 t0 $1,000,000.00 in the affiliated Doss of Alabama, Inc. That’s enough coin to get even Mitt Romney’s attention.

So what does Doss Aviation do? I will let the homepage of its website speak to that: 
Founded in 1970, Doss Aviation, Inc. enjoys over 40 years [sic] experience in supporting the U.S. Government in flight training, aircraft maintenance, maintenance training, into-plane aircraft fuels and bulk fuels management, transient aircraft support services, air traffic control, and other airfield management/logistics services. The company built an enviable reputation in over 50 contracts performing a variety of services for the U.S. Army, U.S. Navy, U.S. Air Force, Defense Logistics Agency - Energy (DLA-E), NASA, FBI, and Department of Homeland Security.
In other words, Doss Aviation is extremely, if not exclusively, dependent on government contracts, many of them no-bid, that can disappear if the Air Force - or the administration in power - decides it isn’t happy with, say, the rulings of a leading shareholder. (Remember, at the time of the Siegelman trial, the administration was Republican.) The conflict of interest is obvious to even a layman. Despite this, Fuller has, throughout his career as a federal judge, regularly decided cases involving the Air Force.  A summary of the reported cases follows:
  • Webster v. Wynne, 2010 WL 5394752 (M.D. Ala. 2010). Civil employee of the Air Force alleged employment discrimination against the Air Force. Summary judgment granted to Air Force. 
  • United States v. 22.58 Acres of Land, 2010 WL 431254 (M.D. Ala. 2010). Action seeking condemnation of certain real property located in Montgomery County at the request of the Air Force. Landowner’s motion to dismiss denied.
  • OSI, Inc. v. United States, 510 F.Supp.2d 531 (M.D. Ala. 2007). Owner of property adjoining Air Force base sued United States government and officials, stemming from alleged dumping of Air Force hazardous wastes into landfill on property. Summary judgment granted to Air Force.
  • Waid v. United States, 2006 WL 1766808 (M.D. Ala. 2006). Driver of automobile injured in accident with Air Force vehicle sued for injuries. Claim against Air Force dismissed.
  • Keel v. U.S. Dept. of Air Force, 256 F.Supp.2d 1269 (M.D. Ala. 2003). Plaintiff, a white male, claimed that defendants terminated him on the basis of his race and sex in violation of Title VII, and retaliated against him by barring his access to Air Force base. Summary judgment entered for Air Force.
In another questionable case where the Air Force was not a party, Houston v. Army Fleet Services, L.L.C., 509 F.Supp.2d 1033 (M.D. Ala. 2007), Fuller denied summary judgment to an employment discrimination defendant - which is a competitor of Fuller’s company. I did not find one reported opinion in which Fuller was the judge, in which the Air Force lost the case.

The legal standard for a judge to recuse himself is simple, straightforward, and clearly reaches Fuller:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). 
What person wouldn’t reasonably question the impartiality of a judge whose (at least) $5,000,000.00 investment could become worthless overnight if one of the parties is unhappy with his rulings? Yet, even after Siegelman’s and Scrushy’s attorneys learned of the Doss Aviation link (after the trial), Fuller repeatedly refused to recuse himself.

You don’t have to take my word that there was a clear ethical mandate for recusal. Judicial ethics expert, and Georgetown University Law Center Professor, David Luban had this to say:
This one is a politically charged case involving a former governor in which political leaders in Washington, D.C., who ultimately exercise tremendous control over the process of military procurement contracts, are likely to take great interest. Given the amount of money Judge Fuller’s company gets from government contracts, any reasonable person would question how impartial he could be. He should not have taken this case, and with a recusal motion made, he had no option but to drop out.
So, we have established that Mark Fuller is an unethical
sleaze who flaunts his legal duty to recuse himself. Sadly, it doesn’t end there. In Don Siegelman’s case, there is an added Doss Aviation issue. One of the prosecutors at the table in the Siegelman trial was Assistant U.S. Attorney Stephen Feaga. Feaga’s smiling face may be seen in the photograph to the right. What’s that, you say? Feaga doesn’t look like a federal prosecutor? He looks like some sort of Air Force officer?? Well, that’s because he was an Air Force officer (he retired in 2011) - of the weekend warrior reserve variety. But not just of any sort; he was a Colonel in the Judge Advocate General Corps - the Air Force’s legal arm. And at the time of the Siegelman trial, he was in a unit that reviewed, and had to approve, Doss Aviation contracts.

In the words of a Great American, Whoa, Nellie!” 

Put aside the fact that Mark Fuller was appointed as a judge because of his Republican activism, and a Siegelman conviction was a Republican political priority. As Fuller presided over Siegelman’s trial, he knew that the George W. Bush administration could wipe out $5,000,000.00 (or more) of his personal wealth if it was unhappy with his rulings. But he also knew that one of the prosecuting attorneys probably could, too. Only Choctaw Bob Riley or Dick Cheney would deny that Fuller’s impartiality might reasonably be questioned.

If any member of Congress needs further reason to impeach Fuller, the hapless part-time judge is more than willing to provide it. It seems that, if the United States Congress and the Judicial Council of the Eleventh Circuit haven’t had enough of Mark Fuller, his wife, Lisa Boyd Fuller, has. In April, she filed for divorce after 30 years of marriage. While Mark Fuller’s lawyers promptly got the divorce file sealed, what emerged before then was serious enough to merit the investigation of any federal judge. Discovery requests served on Mark Fuller covered such judicially unbecoming topics as prescription drug addiction, driving under the influence, an extramarital affair with a Court employee whom he supervises, and domestic violence. Normally, such accusations are best viewed with a gimlet eye in a divorce case. But Ms. Fuller’s lawyers have listed the pharmacies whose records they want to subpoena, and the very number of different pharmacies sends up Limbaugh-like addiction warnings. There’s every reason to believe Ms. Fuller will settle the divorce case for a large chunk of Mark Fuller’s wealth before lots of judicial mud is made public, and it’s hard to blame her. But that doesn’t mean she can’t - or shouldn’t - be interviewed, and subpoenaed if necessary, by Congressional investigators.

As regular readers of my posts know, I always strive to provide them with some positive action to take. In this case, that action involves getting Congressional investigators talking to Lisa Fuller, and otherwise looking into Mark Fuller, and the Siegelman case generally. If this is going to happen, we are going to have to be the squeaky wheel that demands its grease. His Majesty, Barack the Appeaser I, has shown that his administration has its collective head inserted all the way to its collective hepatic flexure on any matter of interest to the Alabama Democratic Party. What I propose is that we do what we can to garner the attention of Democratic members of Congress who might be willing to do the right thing. I urge Alabama Democrats to contact the following members of Congress by the means indicated:

  • Congressman John Conyers (D-Michigan). Conyers is the ranking Democrat on the House Judiciary Committee, which would have jurisdiction over any impeachment or investigative proceedings regarding Fuller or the Siegelman case. You can leave a message on his office website here.
  • Congressman  Steve Cohen (D-Tennessee). Our neighbor from Memphis, Cohen is a lawyer, and has never worried about stepping on GOP toes. He is also on the House Judiciary Committee. You can leave a message on his website here.
  • Senator Pat Leahy (D-Vermont). Leahy is the chair of the Senate Judiciary Committee, which has the corresponding jurisdiction in the Senate. He is a former prosecutor, so he’ll get his head around the issues in a heartbeat. You can leave a message on his Senate website here.
  • Senator Amy Klobuchar (D-Minnesota). She is not only on the Senate Judiciary Committee, she chairs the Subcommittee on Administrative Oversight and the Courts, which would have primary jurisdiction at the subcommittee level. You can reach Senator Klobuchar on her office website here.
  • Senator Bernie Sanders (I-Vermont). Although an independent, Sanders caucuses with the Democrats. He is also the most willing member of the Senate to call out Republicans on issues of greed, injustice, and corruption. Because of his state relationship with Leahy, his support could be invaluable. You can message Senator Sanders on his office website here.
  • Senator Al Franken (D-Minnesota). We all know how courageous and outspoken Franken is. He is one of the few non-lawyers on the Senate Judiciary Committee. You can leave a message on his Senate website here.
  • Congresswoman Terri Sewell (D-Alabama). Sewell is a lawyer who understands both the legal and political issues involved. She’s also the only Alabama Democrat in either house of Congress, thanks to the Obama Administration allowing Fuller to judicially defame the Alabama Democratic Party. I haven’t been thrilled with her silence on these issues to this point, but maybe if she realizes they are important enough to us, that will change. You can contact her Washington office at 202-225-2665, fax it at 202-226-9567, or write it at 1133 Longworth HOB, Washington, DC 20515. Or if you prefer to contact her online, she will take your message here.
Please include a link to this blog post in your message to these members of Congress. That will save you the effort of having to write in great detail about the underlying facts.

There is much at stake here. If Fuller isn’t stopped and discredited, and the Alabama Democratic Party allowed to start rebuilding, Alabama minorities will continue to suffer from political irrelevance they haven’t known since the days of Jim Crow. From a purely political angle, bringing Fuller’s sordid record to light will help remind Democratic and independent voters nationwide this fall how important it is to keep judicial selection out of GOP hands. And I wouldn’t be myself if I didn’t put on my Machiavellian hat and say to each of these members of Congress: Fuller is so dirty, that whoever comes after him first is going to look like a cross between Mother Freaking Teresa and Clarence Darrow. Happy hunting, and post a comment below or email me here if you need further help; I’ll get back in touch.

¹ Doss Aviation was acquired in December 2011 by J.F. Lehman and Company. It is unclear whether Fuller received cash, or Lehman securities, for his shares in Doss Aviation. Lehman is itself a defense contractor, so if Fuller is now a shareholder of it, the conflict of interest issues remain.
² For some mysterious reason, Doss Aviation’s Annual Reports for subsequent years - including those during which Fuller presided over the Siegelman case - are no longer available online on the website of Secretary of State Beth Chapman, a heavyweight Republican partisan. Since the company is still in good standing, it has obviously been filing those reports. I personally had previously viewed those reports online, and noted that they showed the registered office for service of process on Doss Aviation as c/o Mark Fuller, at his Courthouse address of 1 Church Street in Montgomery.
³ Misuse of federal funds and equipment and the time of federal employees may be grounds for criminal convictions. United States v. Wilson, 636 F.2d 225, 227 (8th Cir. 1980). Another basis for Fuller’s removal from office.
⁴ Besides not reporting the Katie Langer jury tampering to defense counsel, Feaga also failed to turn over conflicting statements of former Siegelman aide Nick Bailey, the Government’s sole witness who claimed that he witnessed Siegelman make the deal that was the basis of the Government’s case. Had Siegelman’s lawyers had those statements, Bailey’s credibility would have been destroyed. Alabama Rule of Professional Conduct 3.8 states that a prosecutor shall not willfully fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused. Despite the fact his actions were well-documented, widely reported in the media, and not disputed by the Government, Feaga has not been publicly disciplined for this violation. After his partisan Republican protector, former U.S. Attorney Leura Canary, was finally replaced by the dilatory Obama administration, Feaga left the U.S. Attorney’s office for a staff job at the Alabama Securities Commission in February 2012.