Declarations filed in former AL Governor's request for new trial, describe government prosecutors manipulating key testimony, pressuring former aide in exchange for lighter sentence

Notes, communications and required FBI disclosures said illegally withheld from defense team...

Brad Friedman Byon 7/21/2009, 1:46pm PT

[Update 7/24/09: I interviewed Seigelman on Thursday about these matters and the latest status of his case, while Guest Hosting The Mike Malloy Show. Listen to the interview right here. Select Hour 2 audio archive.]

How it's even possible that former Alabama Governor Don Siegelman's bribery case and conviction has not long ago been dropped by the Dept. of Justice is beyond us. There is now so much evidence of clear conflicts of interest, overt partisan political prosecutorial targeting, failures to recuse by at least one conflicted prosecutor as well as the judge in the case, evidence withheld from the defense team, and now evidence of the coaching and strong-arming of witnesses in exchange for a lighter prison sentence and a promise to conceal embarrassing personal information, it all makes the prosecutorial misconduct in the case of former Alaska Senator Ted Stevens --- a Republican whose case was dropped by Obama's Justice Dept. shortly after they came to power --- look like jaywalking.

Official declarations filed along with a recent motion by Siegelman, requesting a new trial in light of the new evidence, reveal what seems just the tip of the iceberg of a flagrant and wholly inappropriate case of wide-spread prosecutorial misconduct. The allegations (with much evidence to back them up) paint a compelling picture of an illegally targeted political prosecution/witch-hunt carried out by Karl Rove and his Alabama-based Dept. of Justice cronies in an attempt to remove Alabama's most popular Democrat from the political grid all together.

The scheme worked, as Siegelman is currently fighting his conviction on appeal and --- now armed with new evidence gathered by the defense team of fellow defendant Richard Scrushy, the man alleged to have "bribed" Siegelman --- is calling for a completely new trial. The government is to answer Siegelman's motion next week, and the decision will be made by the same federal U.S. District Court judge, Mark E. Fuller, reported to have severe conflicts of interest in the entire case, including a specific "grudge" against Siegelman.

The new declarations, believed to be posted here publicly in full for the very first time ( PDF links follow below), reveal a startling case of inappropriate misconduct by federal investigators, as Siegelman's former aide Nick Bailey, the government's star witness against him, is revealed to have been "coached and cajoled and threatened," as Siegelman's late June motion for a new trial describes it, throughout some 70 interviews and phone calls. Bailey, the documents describe, was said to have been frightened for his life and facing a possible years-long sentence in federal prison, if he failed to testify precisely as investigators had required him to.

The investigators went so far as to require Bailey to write down his testimony after he had failed, time and again, to offer the same answers to prosecutors' questions during undisclosed interviews. Yet, evidence of that coaching was allegedly concealed from the defense, according to the new documents and testimony, in violation of federal law, and in what appears to directly parallel the precise reasons for the dismissal of the Stevens case in Alaska.

Siegelman tells The BRAD BLOG that after the years-long prosecution, this is the first time the information has come to light about coached witnesses, and undisclosed documentation of government interviews.

Star witness Bailey, who testified that he saw Siegelman in receipt of a $250,000 check alleged to have been a "bribe" from Scrushy --- a check that was actually dated several days later than the day Bailey testified he saw it in the hands of the Governor --- is said to have been so unable to remember the specific details prosecutors wanted him to testify to, that he was given written questions and instructions to write down his answers to practice for the actual trial. He was, according to the new documents, told quite specifically how to answer questions.

The hand-written notes from Bailey's attempts to memorize his testimony to the satisfaction of prosecutors is said, in the new affidavits, one from Baily himself, to have included a page in which he responded to the government's specific instructions by hand-writing "bullshit," in response, on one of the undisclosed pages.

A complete notebook of those hand-written documents and other records of interviews with Bailey was apparently never given to the defense teams in either the Siegelman case or in Scrushy's, who also filed a motion for a new trail in late June...

Siegelman's 74-page brief [PDF], requesting the new trial, alleges a case of "selective prosecution" in violation of his Constitutional 5th Amendment right to "equal protection" under the law. Glynn Wilson, a former New York Times reporter smartly analyzed the brief in summary here in late June.

In short, Siegelman is alleging improper conduct by federal investigators and prosecutors in coaching the testimony of key witness Nick Bailey; undisclosed communications between prosecutors and Siegelman's trial jury; notes by Bailey and federal prosecutors that were not disclosed to the defense team; admissions by the prosecution's other star witness, Lanny Young, that bribes were given to Republicans (such as U.S. Sen. Jeff Sessions) though Bush/Rove's investigators failed to prosecute their Republican allies, and that Alabama's U.S. Attorney Leura Canary, whose husband was the campaign manager for Siegelman's Republican opponent Gov. Bob Riley and a long-time associate of Rove's, never actually recused herself from the case as she had previously claimed.

It's a sweeping and broad set of allegations, but we'll focus, for the moment, on the specifics of the allegations revealed in the new affidavits filed by Bailey, the employer who later hired him while he was facing threats and the possibility of a long federal sentence, a CBS News consultant who became a friend of Bailey's, and one of the private investigators hired by the Scrushy team to look into all of this.

Non-Disclosure

In his June 26, 2009 "Motion for a new trial based on newly discovered evidence", Siegelman's attorneys discuss a 3-ring notebook said to contain prosecutors questions, Bailey's hand-written attempts to answer them, and his marginalia notes in response:

The simple fact that Bailey was writing down answers given to him by the Government and then memorizing those answers, which Bailey states the Government was aware of, would be powerful impeachment material, and a fact that the Government was constitutionally required to provide to the defense. Finally, it appears based on Scrushy's argument that the Bailey notebook would provide extensive evidence of the alleged improper activities that occurred here as the Government coached and cajoled and threatened Bailey to provide a version of the facts which powerfully supported their theory of the case, even when that version was different from the version originally provided by Bailey.

Siegelman is consequently asking the court to order subpoenas permitting access to the notebook said, in the new declarations, to now be in the possession of Bailey's attorney. The private investigators were only partially able to review some of the material from that notebook.

The existence of that notebook, and records of upwards of 70 calls and meetings between Bailey and federal prosecutors has not previously been disclosed, Siegelman argues, despite the court testimony of Acting U.S. Attorney Louis Franklin who specifically told Judge Fuller, during the trial, that all relevant materials had been properly turned over to the defense.

From the trial transcript (as quoted in Siegelman's motion):

THE COURT: First of all, I need to confirm whether the government has had the opportunity to confer with all of the investigative agencies, law enforcement officials who were involved in the investigation of each of the defendants in this case, and has discovered that there has not been exculpatory material that would be available to the defendants pursuant to the Brady opinion. [Acting U.S. Attorney] MR. FRANKLIN: Your Honor, we did. We checked with all the agents. They have no other reports that have not been turned over in this matter. The agents even contacted the IRS agents who participated early on in this investigation and who were not participating at some of the instances where Mr. Bailey was being interviewed. They have no additional reports. The AG's office has also confirmed by going through its file that there are no additional reports regarding Mr. Bailey.

And yet, despite the fact that there should be an FBI FD-302 disclosure report from federal investigators for each instance in which the case was said to have been discussed --- from among the approximately "60 or 70" meetings and phone calls Bailey now recounts --- only "five FBI 302 Reports, four Attorney General Reports, and three grand jury transcripts" were turned over by prosecutors to the defense via discovery in relation to Bailey's testimony.

Bailey's declaration lists 24 specific meetings (he notes "there may be more"), their dates, those present, and the subjects discussed from July 17, 2002 through April 13, 2006 which, he says, were "not included in the material furnished to me by the government as being my 302 statements and Grand Jury testimony."

From Bailey's declaration [PDF]:

[T]here were many, many occasions on which I met with or was contacted on the telephone by FBI or other government agents working on the case. At least one representative of the federal government was present at all of the interviews I attended. These meetings typically lasted 2 to 3 hours, and some of them extended from one day to the next. Altogether, I would estimate that I spoke with government prosecutors or agents approximately 60 to 70 times although a number of those meetings and conversations did not involve Governor Siegelman or Mr. Scrushy. 5. Based on my recollection and review of documents, including the FBI "302s" that were provided to me and my attorney and represented to be a copy of the materials provided to the defense team, I believe that there were at least 24 occasions when I met with government representatives Assistant U.S. Attorneys, employees of the Alabama Attorney General's Office, and/or federal law enforcement officials to discuss issues related to Governor Siegelman and/or Mr. Scrushy (excluding meetings that primarily concerned other targets or potential targets of the government's investigation) that are not included in the material furnished to me by the government as being my 302 statements and Grand Jury testimony.

Bailey goes on to detail that "one or more of the government representatives took notes at each and every one of these meetings" and that Asst. U.S. Attorney Julia Weller, whenever present, "typed constantly on her laptop" and, he believes, "took verbatim notes." Later, AUSA J.B. Perrine "took notes" and "Other government representatives generally took notes, on laptops or written by hand, at all of these meetings."

With all of those meeting notes, why was there such paltry documentation of them turned over to Siegelman and Scrushy before their trials? The disturbing information prosecutors may have been hoping to conceal may offer an answer...

'Wouldn't it be all the same if you just said it this way'...

"The Government did not provide any notice of any promises or threats made to Bailey," according to Siegelman's recent motion. Yet, the new declarations reveal a great deal of information along those lines.

Luther Stancel Pate, IV (aka "Stan Pate"), a Tuscaloosa businessman and land developer says he's known Bailey since 1994 and took him under his wing after he'd left his employment with Siegelman in 2002 and as federal prosecutors were, unbeknownst to the Governor, working through a guilty plea on bribery charges with him. "It was obvious to me that he was a man in trouble with heavy burdens," says Pate, who "believe[s] in giving people second chances" and so he gave Bailey a job even as Bailey confided "he was in trouble with the law".

According to Pate's declaration [PDF], he has "had many conversations with Nick about the circumstances of his cooperation with the prosecutors and the agents."

"These conversations took place both during the time of this cooperation and afterwards up through the present day," says Pate. "Some of the conversations took place with Nick at the federal prison in Atlanta; I visited with Nick in prison almost every two weeks." He believes he "was aware of each and every time Nick was cooperating with the government during business hours."

Pate observes that throughout the ongoing meetings and calls with the feds, Bailey "had trouble sleeping (and needed to take prescription medicine to sleep), and was often distracted, anxiety-ridden" and kept "on an emotional roller coaster." It was during this period in which Bailey was pressed "to give them 'what they want'" in exchange for a lighter sentence...even if it meant "trying to think of things or people that might interest the government in hopes that doing so would help him avoid a prison sentence."

Says Pate in his declaration:

According to my personal observations and to Nick, the government used both "carrot-and-stick" techniques to convince him to provide more and more cooperation in the various prosecutions in which he was required to participate. The "carrot" was performance-based: the better Nick's performance, the less time in his sentence. Nick expressed to me many times I have to give them "what they want". Nick said they continuously encouraged him to cooperate with the promised [sic] of a lighter sentence... They used the scheduling and the postponement of his sentencing to keep him in line which only added to his psychological burden. Time after time, Nick's sentencing would be scheduled and suddenly postponed just a day or two beforehand. After they "walked him to the gallows," the government would again offer again the carrot of a light sentence to encourage more and more cooperation. 12. The "stick" that the government used with Nick was to threaten, expressly or implicitly, action that would profoundly affect his personal life. ... These comments had a dramatic effect on Nick and, in my observation, added significantly to the pressure he felt to go along with whatever the prosecutors wanted him to say.

At some point, the order came from Washington to begin the Siegelman investigation again from the top, and Asst. U.S. Attorney Stephen Feaga began to take the lead on the case. At that point, says Pate, there was no criminal activity yet defined against Bailey's former boss or Scrushy, but that it appeared the feds were on a fishing expedition to find something, anything they could use against Siegelman:

According to Nick, he was called to a meeting with agents and/or prosecutors who wanted him to "tell us all you know about any matters involving Richard Scrushy and/or Don Siegelman." He told him this was the first time the government had shown him a significant interest in Scrushy. According to Nick, the government told him of not potentially criminal activity; rather, he told me the government appears to be looking for a crime rather than investigating an alleged crime.

As Nick was "trying to think of things or people that might interest the government in hopes that doing so would help him avoid a prison sentence," he made it clear to Pate "that he was trying to give the government what he thought would...protect his friends and family as well as reduce his own punishment."

It was under those circumstances, that the federal agents then began "gradually" suggesting very specific testimony to Bailey, says both Pate and David Richardson, an investigator hired by Scrushy's team to look into the allegations of prosecutorial misconduct.

The circumstances surrounding the check which Scrushy was said to have given Siegelman as a contribution to a campaign for an Educational Lottery Fund in the state --- supposedly in exchange for Scrushy's appointment to a state hospital oversight board, a board on which Scrushy had already served under three prior Governors (this is the supposed "bribe" for which Siegelman was convicted) --- seem to have been fed very specifically to Bailey by federal investigators.

Pate describes the way in which Bailey was manipulated this way:

Nick has also spoken to me from time to time about how the agents and prosecutors would convince him gradually to modify his testimony. For instance, when Nick would tell them what he knew in his own words, they would ask "wouldn't it be all the same if you just said it this way way." Nick remembers one example of this particularly well, and that involves the term "absolute agreement." Nick said to me, "I don't use that word that way or they convinced him to say it was an absolute agreement." Nick told me that he doesn't use that phrase in his everyday speech, but he learned to use it after practicing his testimony over and over in the way the prosecutors wanted him to say it. His original characterization was that "I thought there was an understanding." Nick told me that Louis Franklin [ed note: the one who seems to have lied to the trial judge about documents] was particularly relentless in trying to get him to answer questions the way he wanted him to, to the point that Nick eventually refused to deal with Franklin any more...

The key questions about the Siegelman/Scrushy convictions hinge on whether there was actually a quid pro quo agreement to seat Scrushy on the hospital board in exchange for support of Siegelman's Educational Lottery campaign. The government presented no evidence of such an explicit quid pro quo, which has always (at least previously) been required for a finding that an official was guilty of being bribed.

Richardson's declaration [PDF] also speaks to Bailey's allegation that his testimony was crafted by government officials, including the "absolute agreement" language:

Mr. Bailey further informed us that it was common, in the course of discussing the language he would finally adopt, for the government representatives to make arguments that, instead of using a word he would normally use, they would tell him, "wouldn't it be just the same" if he used the words that the government wanted him to use. One example he clearly recalled was the term "absolute agreement." Bailey said that was not a term he would normally use --- that he might have said "understanding," instead --- and that he didn't understand at the time why they were so determined to get him to use those words. Nonetheless, Bailey recalled that he was schooled repeatedly on the use of that term, and anytime he talked about an arrangement or understanding with, for example, Lanny Young [the government's other key witness, who was also facing his own federal charges at the time], the government representatives would say, "Was there an agreement," and he would say, "yes." Then they would ask him, "Wouldn't it be the same if you said 'absolute agreement'?", and he eventually learned to use the words they wanted him to use. Similarly, Bailey said that the prosecutors also told him sometimes that his testimony was in conflict with what other witnesses had said or the words they had used to say it --- without telling him who these other witnesses were --- to persuade him to adopt another witness's view."

Now we don't pretend to be attorneys around here, but this testimony strikes us as absolutely extraordinary, and the sort of thing --- from the government's absolute key witness in this case --- which would seem to be grounds for not only dismissing the entire matter, but also for bringing federal charges against the very investigators and prosecutors who were involved in this kind of manipulation of their supposedly key witness.

If this is the normal, appropriate state of affairs for such investigations, of course, we'd be happy to hear from prosecutors or other attorneys or judges to that end. We can't imagine that's the case, however. And remember, there are said to have been no indications of this kind of manipulation of Bailey's testimony offered in the discovery documents --- supposedly documenting all the pertinent interviews with Bailey --- as turned over to the defense team before trial.

'Bullshit'

Richardson goes on to detail more of the strong-arming of their star witness by federal prosecutors. Bailey seems, according to one document mentioned by Richardson, to have believed at least one element of the case he was asked to make against Siegelman was "bullshit", according to an undisclosed hand-written note by Bailey:



...

He told us that the prosecutors would express their frustration if he forgot from time to time exactly how he was supposed to answer their questions. He remembers clearly that Assistant U.S. Attorney Steve Feaga told him, "We've got to get some consistency. When we ask you a question, you've got to answer the same way every time." Mr. Feaga also told him, "You know what the questions are. Write down the answers and stick with the answers." The government's frustration with Mr. Bailey's forgetfulness is not mentioned in any 302 that I have seen, nor is Mr. Feaga's instruction to him to write down his answers so as to answer the same way every time. 10. [After one meeting with federal investigators, Bailey had developed an uncertainty about] when he had first seen a check for $250,000 and he told us that there was been so much discussion about that meeting during his government interviews that it challenged his memory, so that, for example, he couldn't even be sure that the people whom he had previously said were there were, actually, there that day. Baily told us that, in follow-up meetings, the prosecutors began to tell him that the check he saw may not have been cut until after the meeting between Governor Siegelman and Scrushy at the Governor's office. He also recalled various explanations that the prosecutors suggested to him, including a theory that Scrushy had driven down from Birmingham "secretly" before the meeting and gave Siegelman a check that was post-dated. Bailey told us that he through that theory was far-fetched. I have never seen any reference to this exchange in any 302....He told us that the prosecutors would express their frustration if he forgot from time to time exactly how he was supposed to answer their questions. He remembers clearly that Assistant U.S. Attorney Steve Feaga told him, "We've got to get some consistency. When we ask you a question, you've got to answer the same way every time." Mr. Feaga also told him, "You know what the questions are. Write down the answers and stick with the answers." The government's frustration with Mr. Bailey's forgetfulness is not mentioned in any 302 that I have seen, nor is Mr. Feaga's instruction to him to write down his answers so as to answer the same way every time. 12. Mr. Bailey said that, following Mr. Feaga's direction and to prevent the prosecutors from becoming irritated, he began to make notes so as to remember the key words they wanted him to use, and to study and memorize the right answers and words before his next meeting with the government. Bailey is confident that the government was aware of this practice.

When Richardson met with Bailey and his attorney, the 3-ring binder filled with pages of handwritten notes was there, though they were not allowed to review it. Later, information about additional documents was shared by Bailey's attorney. On one page, Richardson says he was told, "there were handwritten answers to some of the questions", but Bailey and his attorney George Beck "both said that the handwriting was not theirs". Whose was it?

Pate's declaration also asserts similar allegations of prosecutors becoming "frustrated" that Bailey's answers to their questions "were inconsistent with previous ones." He said that "Written versions of the answers were produced; Nick would be asked the same questions again and his answers would be compared to the written ones. This also did not work because Nick still was unable to give consistent answers that satisfied prosecutors."

Many of Pate's observations were made, and noted, contemporaneously over the years, as Pate frequently wrote important notes of the day on index cards. The hand-written, contemporaneous notes from several of those index cards are included with his declaration.

Richardson also describes, in his declaration, "a page from a 302, which [Bailey] recalled as being the 302 dated June 30, 2003 on which he had handwritten the word 'bullshit'".

A 'Seal Order' and 'Embarrassing Details'

Bailey had "also withheld 23 additional documents," from his meeting with Richardson, "evidently on the theory that handwritten notes made by Mr. Bailey at some point prior to July 2006 are somehow subject to a 'seal' order covering a document Mr. Beck filed at the time of Bailey's sentencing." That, small point, of course, begs the question as to what "'seal' order" could be in effect here, keeping legitimate discovery documents concerning a witness and his cooperation with prosecutors from being shared with defense attorneys?

"Mr. Bailey recalls that, on a number of occasions, prosecutors and agents asked him questions or made statements that he came to realize were implied threats to disclose potentially embarrassing details about his personal life or to intensify investigations of his friends and relations," says Richardson.

It's unclear how any of those "potentially embarrassing details about his personal life" were directly germane to either Bailey's own case, or that of the Siegelman/Scrushy prosecution. The suggestion here is that it seems to have been little more than out and out strong-arming by federal prosecutors in hopes of getting still more cooperation from Bailey, as Richardson characterizes threats to Bailey which, he was told, "could come out during the trial".

Other officials also peppered Bailey with questions about sexual relationships he may have had with "other people who were also under investigation by the government". DC Attorney/Reporter Andrew Kreig has more on the sexual aspects of the case, asking whether prosecutors may have been blackmailing Bailey, today at Huffington Post.

The potential prosecution of Bailey's brother was similarly used to further pressure Bailey, according to Richardson's declaration. In another declaration filed by Harrison Hickman [PDF], included with Siegelman's motion, the friend of Bailey's and 20 year CBS News consultant corroborates much of the same information from both Pate and Richardson, including Bailey's modification of testimony over time to fit the expectations of the investigators, and the prosecutors' use of threats that "frightened" Bailey. "For example, Nick said the prosecutors told him that his brother, Shane Bailey was in a 'situation'", recalls Hickman.

"In my view, this 'tell us all you know about a particular individual' is part of the government's 'fishing expedition' approach to this investigation," Richardson concludes, "in which they were determined to find some kind of wrongdoing by Governor Siegelman and Richard Scrushy."

What Next?

Though he quickly vacated the case against Republican Sen. Ted Stevens, and other Republican officials from Alaska, U.S. Attorney General Eric Holder has made no official statements on the disposition of the Siegelman case, though in May, prosecutors in the case --- the same ones appointed by George W. Bush, who remained in their position even then --- argued in reply to Siegelman's appeal that his original sentencing of more than seven years, should now be extended to 20 years.

As of June 9th, 2009, according to a press release [PDF], "Justice Department whistleblower, Tamarah Grimes, formerly a member of the prosecution team in the case against former Governor of Alabama, Don Siegelman and former HealthSouth CEO Richard Scrushy has been terminated by the U.S. Department of Justice."

Grimes' dismissal follows on the heels of a June 1 letter she sent to Holder "providing details of the misconduct on the part of the prosecutors in the Siegelman/Scrushy trial" and following a request by Scrushy attorneys to interview her about those allegations. Grimes is also said to have "provided internal documentation to the Senate Judiciary Committee which contradicted the claims of U.S. Attorney Leura Canary and Acting U.S. Attorney Louis Franklin regarding the recusal of Leura Canary," who, apparently, never actually recused herself from the case against Siegelman, despite the conflict of interest in her husband's role as campaign chair to Siegelman's opponent, and his close ties to Karl Rove.

The agency claims Grimes' termination was unrelated to her whistleblower disclosures. Grimes, however, says the dismissal was a case of "whistleblower retaliation".

In 2008, 52 former state attorneys-general, both Republican and Democratic, asked Congress to investigate the dubious prosecution of Siegelman. Last month, Karl Rove testified to the U.S. House Judiciary Committee behind closed doors, about this case, and others related to the U.S. Attorney Purge scandal. The information from that lengthy interview has not yet been released.

The government is required to file their brief in reply to Siegelman's new motion next week. He is currently free on probation, pending his ongoing appeal and now, potentially, new trial.

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