Articles Posted in Federal Criminal Law News

Over at the White Collar Crime Prof Blog, Ellen Pogdor discusses an interesting development in the federal criminal case of Alabama’s former governor, Don Siegelman, and Richard Scrushy. Governor Siegelman and Richard Scrushy were both convicted in a federal criminal trial that took place in Montgomery, Alabama. After the jury returned the verdicts, the defense attorneys received documents that purported to be printouts of emails. The documents were received from an unknown source and seemed to suggest that one or more of the jurors was improperly exposed to extraneous information during the trial, and during the jury deliberations.

After receiving the emails, the defense attorneys brought them to the attention of the court in the form of a motion for a new trial. Among other things, the federal criminal defense attorneys asked the Judge to conduct an investigation to determine the authenticity of the emails. According to Governor Siegelman’s attorney, however, the prosecutors opposed this request for any real investigation into the authenticity of the emails. Consistent with the prosectors’ position, the Judge denied the motions for a new trial, as well as the request for an investigation into the authenticity of the emails. After additional printouts were received, the defense attorneys filed additional motions with the Judge, asking the Judge to investigate the authenticity of the emails. On each occasion, this request was denied.

Significantly, earlier this month, the Department of Justice revealed that it was aware of an investigation that was conducted to determine the authenticity of the emails. Specifically, it was recently revealed that while one of the motions referenced above was pending, the U.S. Marshals Service informed the Judge that Postal Inspectors had conducted an investigation into the matter and reached the conclusion that the emails were not authentic. This conversation between a Department of Justice agent and the Judge took place outside the presence of defense counsel; moreover, it was not revealed to defense counsel until 15 months after it occurred.

In an article published on law.com, Scott Horton raises the question of whether the chief federal prosecutor in the Northern District of Alabama “knowingly prosecuted innocent people?” Among other cases, Scott discusses the well known federal fraud prosecution of Richard Scrushy, who was acquitted of all charges. In addition, Scott discusses the prosecution and acquittal of Axion, a prosecution that Scott describes as the “latest in a string of aggressive prosecutions brought by Birmingham U.S. Attorney Alice Martin.” According to Scott, “those prosecutions are marked by convictions overturned and innocent men wronged. Two judges have openly questioned whether she knowingly prosecuted innocent people.” In addition, Scott reports that “the American Lawyer has learned that the U.S. Department of Justice’s Office of Professional Responsibility has opened an investigation into allegations of misconduct that were made by Axion against Martin.”

There are a number of things about the Axion prosecution that are particularly interesting. First, unlike in most federal criminal cases, Axion waived its right to a jury trial and agreed to a bench trial, a trial that allows the judge alone to decide whether the accused is guilty. Second, after the Government presented its evidence, the case was ultimately dismissed by Judge Inge Johnson of the federal district court in Birmingham, who wrote, “Evidence was received … that at least raises the possibility in the eyes of the district court that the government continued to investigate and prosecute the defendants even after uncovering evidence demonstrating that the defendants were not guilty.” Third, as a result of a motion filed by Axion, Judge Johnson awarded $363,000 in costs, attorney fees and interest to Axion.

This story will be interesting to follow as it develops. According to Scott, “a Justice [Department] spokesman says that the Department’s Office of Professional Responsibility, which investigates allegations of misconduct by Justice attorneys, is investigating Martin for “allegations of political prosecution involving both the Northern and Middle Districts of Alabama, arising out of the prosecution of former Gov. Siegelman and other matters.” Scott’s full story can be found here.