Josh Moon: End the embarrassment and pardon Don Siegelman

Josh Moon | Montgomery Advertiser

It doesn't matter why Don Siegelman is in solitary confinement at a Louisiana federal prison.

It doesn't matter because Don Siegelman shouldn't be in prison at all.

Why this absolute travesty has been allowed to continue – and make no mistake, it is both Democrats and Republicans who have allowed it – is a mystery to me and to a number of attorneys and legal scholars from across the country.

It is an embarrassment to the justice system.

It is an embarrassment to the state.

And it should be an embarrassment to every citizen.

Since we're about a decade past the case, let me recap the shenanigans.

So, deep breath, ready, go … Siegelman, a Democrat, was narrowly defeated in 2002 by Bob Riley, after a late-night recount in Baldwin County gave Riley an unexpected 3,000-vote edge. It was unexpected because Siegelman had already been declared the winner by the Associated Press.

Regardless, Siegelman lost, but remained a popular figure in the state and would make a formidable opponent if he decided to run for governor again in 2006. But before that could happen, he was indicted on federal bribery charges in 2004.

The case went before federal judge U.W. Clemon, who tossed most of it, and after opening statements, the prosecution dropped the rest. Clemon later called it "the most unfounded case" that he had ever presided over in his legal career.

But a year later, the feds were back with a new indictment for basically the same charges, but this time in Montgomery and in front of federal judge Mark Fuller. That name might ring a bell, since Fuller was forced to resign his position on the bench this year after being arrested for assaulting his wife in an Atlanta hotel room.

But in 2004, Fuller was on the bench and he refused to recuse himself from the case despite a clear conflict of interest arising from a pension dispute three years earlier. There also was the matter of Fuller owning a controlling share in Doss Aviation, which miraculously received $300 million in government contracts after the Siegelman trial.

But what's a few hundred million among friends?

The investigation was started before U.S. Attorney Leura Canary was appointed and supervised by her for a few months before Siegelman objected and she recused herself. The indictment and criminal charges were filed after she recused. But, well...

Siegelman was accused and eventually convicted (sort of) of accepting a bribe from former HealthSouth CEO Richard Scrushy. The "bribe" came in the form of two $250,000 donations to Siegelman's education lottery in exchange for a spot on a health care licensing board.

And that, in the wake of the Citizens United decision from the U.S. Supreme Court – a decision that labeled campaign contributions a form of free speech – would seem to be the biggest hole in this case.

Because there is no question that what Scrushy provided was a donation to the lottery fund. And there is no disputing that none of it went to Siegelman personally.

So, Siegelman is serving 77 months for reappointing a guy to a non-paying board after that guy exercised his right to free speech.

After the case, and after Fuller ordered Siegelman and Scrushy shackled and escorted to prison from the courtroom (a rare sight in a white collar case), even more awful conduct was revealed.

A Republican attorney said she had overheard Bush administration officials, including Karl Rove, discussing using the Justice Department to target Siegelman. There was evidence the prosecution improperly interviewed two jurors, thus tainting the jury.

Then there's the matter of Fuller's poor jury instructions, which failed to instruct jurors that an explicit quid pro quo must exist to rise to the level of bribery.

And one last thing: The prosecution's star witness, Nick Bailey, who was Siegelman's aide, basically made it all up.

Bailey told a fantastic story of Siegelman exiting a meeting with Scrushy, waving a $250,000 check around and telling Bailey that Scrushy wanted a seat on the hospital board. Siegelman's attorneys later learned that the check was cut days after the meeting.

See? This thing is a stinking pile of disgrace.

It has prompted more than 100 former state attorneys general to sign a letter asking the Supreme Court to review the case.

But there's no need for that. Because I think we all know what's right here.

It's past time for President Obama to pardon Don Siegelman.