By Susan Britt
Alabama Political Reporter
MONTGOMERY—Former Gov. Don Siegelman was returned to Montgomery on Saturday to attend a bond hearing on Monday before Presiding Judge Clay Land, of Georgia’s Eleventh Circuit Court.
Siegelman asked that the court release him from federal custody pending an appeals hearing on January 15, 2015. He was represented before the court by Greg Craig, a Washington-based lawyer and former White House Counsel under President Barack Obama.
Siegelman entered the courtroom in a dark, red jumpsuit, his hands, feet and waist in silver-shaded shackles. After being uneasily seated, he turned around and was greeted with quiet waves and thumbs ups from those who had come to offer support.
The defense promptly asked that the shackles be removed allowing Siegelman to participate in his own defense, that motion was quickly objected to by the government’s lawyers, saying he didn’t even have a right to be at the proceedings. Following what the government said was standard procedure, the shackles remained.
The simple question before the court was, should the former governor be granted bail. However, Judge Land also wanted to weigh the likelihood of the appeals court actually conceding to a new trial for Siegelman. His appeal before the Eleventh Circuit is based on prosecutorial misconduct on the part of Leura Canary—who was US Attorney during the Siegelman trial— and also whether Siegelman’s sentencing was appropriately calculated. Siegelman contends that Canary inappropriately continued to direct portions of his original prosecution even after her recusal.
Judge Land asked to question the attorneys before they presented their cases. He first called for John-Alex Romano, a trial attorney for the Justice Department’s criminal division. Land asked Romano if he interpreted the law in a way that financial conflict of interest did not meet the requirements for structural error.
According to Al Haramain Islamic Found., Inc. v. United States Dep’t of the Treasury, 2009, “A structural error is defined as ‘an error that permeate[s] the entire conduct of the trial from beginning to end or affect[s] the framework within which the trial proceeds.’” Structural error results in automatic reversal. Romano maintained that there were at this time no laws that showed financial conflict of interest or could be defined as structural error.
Judge Land asked Romano if a prosecutor accepted “$10,000 to obtain a 3rd party prosecution” did he not see that as a financial conflict of interest. Romano maintained that would not be considered as structural error and that Leura Canary had minimal involvement after she recused herself from the Siegelman case.
Leura Canary recused herself on advice of the Department of Justice after her husband, Billy Canary, was hired as a political strategist for a Siegelman opponent.
Romano argued that since the court did not find conflict of interest regarding Canary in the Scrushy trial, it should not apply in this case.
The prosecution maintained that emails sent by Canary to trial team after recusal had no bearing on their decisions.
The prosecution argued that the Court of Appeals decision re: conflict of interest in the Scrushy case was not a financial conflict and denied reversal.
Craig argued for the defense that the evidence regarding Canary in the Scrushy trial was vastly different than the evidence in the Siegelman trial. He said that the appellate court only focused on the evidence pertaining to Scrushy and not to Siegelman.
Craig cited additional evidence not present in the Scrushy case to include an email from Canary to the trial team suggesting a gag order be invoked to keep Siegelman from addressing the case in the campaign stating that he was “influencing the public.” He said that in a letter to US Attorney General Eric Holder, whistleblowers also contented that Canary was briefed daily on progress and assisted in writing the press releases regarding it. Craig said he believed that this evidence “should prompt further discovery.”
Craig said that Canary did not follow federal guidelines for recusal and that she continued to be involved with the case afterward. He stated that items the defense would like to add to discovery are the emails to the prosecution trial team, letters to Department of Justice, and interview with Canary and other parties as well as a letter to the Department of Justice asking for emergency funding of $91,000 to “put this case as a priority of the office.” Craig contends that Canary, in these actions, “violated her pledge to recuse.”
Siegelman is currently serving a sentence of 51 to 63 months. Craig has proposed a “good time” credit reduction to 85 percent. This would reduce the sentence to 43.35 to 53.55 month sentencing guideline range.
As of the date of the appeal, Siegelman will have served 37 months and 6 days. Judge Land surmised, given that the court date is next month, even if Craig’s suggested reduction in sentence is approved, Siegelman would not have reached his minimum sentence. He also said that should it take the appeals court 16 months to reach a verdict, Siegelman would just be reaching his maximum sentence. Since the bond hearing was based upon the contention that if this process continued there would be jeopardy that he could serve more than his recommended sentence, he didn’t see how that was possible. Craig contended that should there be any delays, it was possible.
Craig said that the defense wants the appeals court to decide on only two questions: Was there prosecutorial misconduct? Were the guidelines misapplied?
Judge Land said he will issue his verdict in writing hopefully by the end of the week. Siegelman will remain in Montgomery until the ruling, according to Susan James of the defense team.
After the hearing, Chip Hill, Siegelman family spokesperson and longtime aide, said “We believe the judge heard it, asked the proper questions. We think Greg Craig made good arguments. The government didn’t do a very good job of answering what constituted structural error. From what Mr. Romano said in there, there is no such thing as a conflict of interests.”
“There are more emails than are in the record. When emails were looked at in detail, and I don’t want to characterize this legally, from just a layman’s standpoint, the emails I believe, if given any public airing, will show that this was not Leura Canary managing the administrative duties of this office. This was Leura Canary seeking resources to pursue the case against Don Siegelman after she was supposedly recused,” said Hill.
When asked how the Siegelman team felt about the overall outcome, Hill said, “We have long ago adjusted to the fact that even the best outcome for us is not a perfect outcome so it is going to be bittersweet no matter how this ends.”
