In the matter of ex-Gov. Siegelman: Was justice blind, fair, impartial?
By Chip Drago
Mobile Bay Times
Once a political wunderkind, former Gov. Don Siegelman earlier this month left a courtroom in shackles to begin a long prison stay for his convictions on public corruption charges.
Business titan Richard Scrushy, whose HealthSouth Corp. was one of Alabama's most meteoric success stories in modern times, was also led away by U.S. marshals to serve his own long prison stint in connection with his convictions in the bribery, conspiracy and mail fraud case.
U.S. District Court Judge Mark Fuller ordered Mobile native Siegelman to serve seven years, four months in prison, three years on probation, restitution of $181,325, a $50,000 fine and 500 hours of community service for bribery, conspiracy and mail fraud.
Scrushy, who founded the Fortune 500 Birmingham-based HealthSouth Corp., drew a sentence of six years, 10 months in prison, three years of probation, 500 hours of community service, a $150,000 fine and $267,000 in restitution. Fuller also ordered Scrushy to pay his room and board while in prison -- $1,952.66 a month while he is in prison plus $3,450 a year for supervision.
Last year Siegelman was found guilty of selling, and Scrushy guilty of buying, a seat on the state's Certificate of Need Review Board with a $500,000 contribution to a lottery campaign that was heavily advanced by the Siegelman administration.
Could politics be deftly excised, checked at the door in dealing with Siegelman, a man whose every breath from childhood has been political? That is the standard for justice in the U.S.
Was it achieved?
Mobile Bay Times asked for the thoughts of some readers who are knowledgeable in the area of federal sentencing guidelines.
"In light of all that happened during the trial, including the post trial events, I have never seen anything like the Siegelman case.
I tell all of my clients that each case is unique. The Siegelman case was unique, exponentially magnified. I had no idea of the term to which the judge would sentence him.
However, I thought Siegelman’s statement that the lower term he received was like $2.80 gas versus $3 gas, referring to the prosecutor’s recommendation. I believe he was referring to the fact that those years to which he is sentenced are probably the last good years of his life at his age."
-- Lee Hale,
Mobile attorney, former assistant attorney general
"Probably a little lighter (than expected).
As you know, federal guideline sentencing is often driven primarily by quantity, be it amount of drugs possessed or money stolen. Defense's lawyers did a good job to keep that amount down, as the court could have considered "relevant conduct" (uncharged acts) to drive the quantity up.
I did not follow the sentencing hearing that closely, but as it took two days I assume the government unloaded all their guns and the defense's lawyers were looking for downward departures from the now advisory guidelines. It could have been a lot worse for the governor."
-- Dennis Knizley,
Criminal defense attorney
"Because I have represented Siegelman from time to time over the years and am a friend of his, perhaps my opinion should not be considered.
Nevertheless, and because you asked, I will say that given the facts surrounding what Siegelman was actually convicted of, in my opinion the sentence was extraordinarily harsh."
-- Bobby Segall,
Montgomery attorney
"Given the scorched earth tactics of the trial team, i.e., attack the prosecutors, attack the prosecutors' motives, and attack the judge, I think the sentence is about what I expected. They certainly couldn’t expect leniency.
I am sure that in the interest of being even-handed, President Bush will commute the sentence, a la Scooter Libby."
-- SMP,
state judge
"From my limited knowledge of the case and the applicable guidelines, I thought the sentence was somewhat less than the sentence the Judge could have imposed.
Understand I do not dwell on the misery of others. I generally know enough poor souls with problems I am attempting to handle so I don't dwell on those of others."
-- Billy Kimbrough,
Mobile attorney and former U.S. Attorney
"(Did) you notice that the two defendants with actual criminal defense lawyers, not civil lawyer wannabe's, got acquitted?"
-- SRG,
Mobile lawyer
"I've heard a lot of hand-wringing from my friends, especially on our criminal defense listserv, about how harsh the sentence was, but I thought it was about on par with the overall harshness of the sentencing guidelines and with the stature of the offices that he denigrated. He was once our top law enforcement officer and served in all four of the state's top elective slots. He managed to get less than the Mayor of Orange Beach.
I thought it was a bit severe but it didn't surprise me nor would have an even longer sentence. It would have been in keeping with the generally nasty way defendants are treated in federal court these days. I've been seeing kids get hammered with 25- and 30-year sentences for offenses that really only warrant, at most, a sentence like the one Siegelman got. So it's hard for me to get all too worked up about someone who championed harsh sentences and touted law and order.You live by the sword, you die by the sword.
I did think the merits of the conviction were very questionable but, again, given the way the federal system (and society in general) has expanded the concept of liability and the definitions for criminal behavior, he'll probably be shelved for quite a while.
What I do find to be troubling was the fact that they immediately took him into custody. There was an interesting story yesterday that got swallowed up by the commutation of Libby's sentence. Remember that earlier that day the court of appeals had ordered Libby to report to prison because there weren't any real 'appealable' issues.
Not so with Siegelman's case.
And, yet, while even that point is arguable, what I thought was purely mean and vindictive (or, perhaps, just plain ol' silly) was ordering anyone who has just completed more than six years in prison (especially an ex-governor) to do 500 hours of community service. So, a man who has just finished serving a long prison sentence, is without a career, can't support his family, has no resources to speak of and will probably do the last six months of his incarceration in a half-way house, is going to get out of prison and do community service?"
-- Dom Soto,
criminal defense attorney
"Siegelman's sentence is excessive.
Not to let him have bond is wrong.
The Scrushy payment was NOT a bribe.
I believe the conviction will be reversed on appeal.
Don is basically a decent person -- too totally political -- but he and his family do not deserve to have their life destroyed -- which is what has happened."
-- XFR,
former Republican officeholder
"After Judge Fuller publicly raised the specter of a much harsher sentence for Gov. Siegelman and Mr. Scrushy, the judge’s ultimate sentence was more lenient than what the Court suggested might be meted out. In fact, the ultimate sentences imposed appear to be lower than what were called for under the Federal Sentencing Guideline ranges for Gov. Siegelman and Mr. Scrushy.
All in all, it appears Judge Fuller imposed a measured, contemplative and reasonable sentence given the Guideline ranges, which are now advisory in nature (at least theoretically), in the case of both Gov. Siegelman and Mr. Scrushy."
-- Christ N. Coumanis,
Mobile attorney
"The sentencing guidelines include factors other than the offense of conviction that could cause the range to increase or decrease. I'm familiar with Siegelman's offense of conviction and could even consult the guideline manual with you, but without seeing his pre-sentence report and the factors in it, it is speculation at best as to whether it is high or low.
The duty of preparing the report, or PSI, falls on the U.S. Probation Office following a plea or conviction.
Usually, the U.S. Attorney's office provides extensive information to the probation officer for inclusion in the report, and this usually includes information the defense disputes or objects to, even including facts or evidence the defendant has been acquitted of at trial.
The prosecutors burden to prove a case to a jury is beyond a reasonable doubt but the sentencing burden is by a preponderance of the evidence, so the sentencing judge CAN consider acquitted conduct (unless/until the US Supremes say otherwise) regardless of how unfair it seems. You may recall this occurred in the Siegelman PSI.
The prosecution and defense get a copy of the PSI and are instructed to consult one another in an effort to resolve any disagreements before filing their respective POSITION WITH REGARD TO SENTENCING FACTORS. (Can you imagine that telephone conversation between (Siegelman attorney Vince) Kilborn and Louis Franklin?!!!)
The government must then prove at the sentencing hearing any disputed factors. The judge has the job of ferreting through the information to determine a guideline range, and then consider from that whether to sentence within the range, above it or below it in an effort to arrive at a lawful and appropriate sentence.
The Booker case changed the guideline impact from mandatory guideline sentencing to merely advisory, but many judges still hand down sentences within the guideline range.
The catch phrase you will hear from defense lawyers at most sentencing's nowadays is referred to as the "parsimony clause" and was taken straight from the Booker decision which states that judges should impose sentences "sufficient, but not greater than necessary" to comply with the goals of sentencing. In determining what this should be, lawyers should also file a sentencing memo (I assume Siegelman's attorneys did) and mention:
- 2) remind the court of the limited role of the guidelines;
- 3) explain why the guidelines shouldn't carry much weight in the case;
- 4) consider the federal sentencing statute, 18 USC 3553(a); and
- 5) tie the circumstances of the particular case to 3553(a).
Here is a link to 3553 and the goals of sentencing.
As you can see from my 'brief' response, sentencing is extremely involved and is every bit as important (especially in federal cases) as the issue of guilt or innocence."
-- G. Armstrong,
Mobile defense attorney
"About as expected."
-- Bill Wasden,
Mobile attorney, former legal adviser to Gov. Guy Hunt
"I am not surprised by the sentence. It looks like it was a guideline sentence to me. Am only mildly surprised by the court ordering incarceration pending appeal. Taking them into custody matches the general rule in Federal Court, not the exception. Usually, in order to get out pending appeal, they must demonstrate a likelihood of reversal, or at least a significant issue.
Truthfully, the likelihood that this was at least in part a political prosecution, probably kept the Court from departing upward and giving them a greater sentence."
-- Al Pennington,
veteran Mobile attorney
"It was about what I expected."
-- RPT,
retired Democratic officeholder
"I thought they would get between seven and 10 (years). It was more lenient than I thought it would be."
-- Don Briskman,
Briskman & Binion
"I had estimated that he would get between six and eight years, based upon the amount of money involved, the position he held and the guidelines."
-- Dan McCleave,
Mobile attorney
"I believe the judge gave Siegelman a break when the allegations against him are compared to those against (former Orange Beach Mayor) Steve Russo and the comparative sentences."
-- Rick Yelverton,
Mobile criminal defense attorney
"Compare it to Russo or (former Mobile County Commissioner) Freeman (Jockisch). It was about what I expected given the financial loss and lack of a criminal history."
-- PKB,
former prosecutor
"I have not followed the case close enough to tell. So, I cannot say one way or the other. Nevertheless, I was surprised by the length of the
sentence. This is particularly true when we consider the President's actions and reasons in the Libby case."
-- Carlos Williams,
federal defender's office
