Tillman not down for the count,
ex-sheriff appeals convictions
By Chip Drago
Mobile Bay Times
The ‘food fight’ that ultimately KOed Jack Tillman’s political career may not be over yet.
The former sheriff hopes to reverse the convictions that earlier this year led him to cut short his term in office, citing as “poison” his attorney’s testimony before a grand jury with neither Tillman’s consent nor a court order.
Tillman also asks the state Court of Criminal Appeals to dismiss the charges against him. Tillman’s argument was filed with the appeals court Dec. 4.
The ex-sheriff contends that attorney Bob Campbell violated Tillman’s constitutional right to confidential representation as well as ethical canons governing a lawyer’s professional conduct. Tillman hired Campbell in 1995 not long after winning office as sheriff of Mobile County in the first of three successful campaigns.
According to court documents, Campbell conferred with District Attorney John Tyson’s office in early 2002 just weeks after Tillman dismissed the attorney as the sheriff’s legal representative.
Tyson was in the midst of a years-long investigation into Tillman’s handling of the jail’s ‘food fund’ and other matters relating to the department’s operations.
Eventually, Tillman was indicted on five felony charges surrounding his handling of the food fund for the Mobile County Metro Jail and his testimony in a 2003 criminal case against his sister-in-law, Brenda Pate. Pate held an administrative planning post in the sheriff’s department.
A former professional boxer and popular political figure, Tillman plead guilty to two misdemeanors -- perjury and an ethics offense. Tillman also agreed to repay some $13,000 that he shifted from the food fund to a retirement account in his name. He left office on the same day as his court appearance, maintaining that he had done nothing wrong despite his guilty pleas. The sentence did not require jail time.
Given little note at the time, Tillman’s plea bargain was conditional, preserving his right to appeal the issue of Campbell’s testimony.
Early this year upon confirming Campbell’s involvement with the prosecutors, Tillman sought the dismissal of charges and/or the disqualification of Tyson and his staff from the case for prosecutorial misconduct, a charge that Tillman’s camp raised publicly and privately throughout the controversy.
In a 2003 trial on charges that Pate, chief of planning for the sheriff’s office, stole almost $10,000 generated by a law enforcement conference in 2000, the judge granted a mistrial after her attorneys complained of prosecutorial misconduct. The case was retried and Pate was found guilty.
Unknown to Tillman, Campbell had met in 2002 with prosecutors, essentially becoming “an undercover agent for the D.A.'s office," argued Don Beebe, Tillman’s attorney in the criminal proceedings. Beebe is an attorney in the Atchison Firm, headed by Jim Atchison who Tillman hired to replace Campbell.
Tyson, Assistant District Attorney Nicki Patterson and Campbell all contended then and now that the lawyer’s cooperation did not violate attorney/client confidences because he spoke under subpoena as an “agent of the sheriff’s office” about matters of public record.
Tillman's defense now counters in a footnote in his appeal brief, "If, as the state argues, Campbell testified only to matters of public record, why was he subpoenaed to appear before the grand jury? The question of attorney-privilege was actually raised by a grand juror. (Grand Jury, pages 148-149)."
Jefferson County Circuit Judge James H. Hard, who was assigned to the case after the local bench recused itself, ruled against Tillman.
Several weeks later, the plea bargain was hammered out and Tillman stepped down as sheriff several months short of 12 years and three terms in office.
On appeal, the defense argues, “Bob Campbell represented Jack Tillman. Jack Tillman, not the office, retained Campbell for advice and representation.”
What Campbell actually said to the grand jury is at slippery issue in both the state’s and Tillman’s arguments over the lawyer’s role leading up to Tillman’s indictment. The transcript of Campbell’s statements to the grand jury remains under seal.
However, the transcript is available to the appeals’ court and Tillman’s attorneys urged the court’s “close review.”
Tillman’s argument on appeal reads:
“Campbell’s words show he acted as Tillman’s attorney giving legal advice, not simply as an agent, acting as a negotiating mouthpiece.
“Campbell testified that as the Sheriff’s attorney he was called upon to undertake legal research on the issue of ownership of food fund monies (Grand Jury pages 134-135). He testified about the findings of his research and his opinions (Grand Jury pages 117-120; 144-146). Campbell testified about discussions with the Sheriff (Grand Jury pages 120, 122, 124, 126).”
Tillman also contested the prosecution’s claim that Campbell provided no documents to the grand jury.
That assertion is simply “wrong,” states Tillman’s appeal brief.
“Campbell brought his file with him to the grand jury room …” the brief reads. “… and it and documents in it are referred to by both the witness and the prosecutors. (Grand Jury pages 127, 132-134; 138; 141; 151)”
Tillman and the district attorney also differ in their characterization of Campbell’s employment, with prosecutors calling him a “government attorney” while Tillman’s lawyers say Campbell was “a private attorney hired to represent an individual.”
According to Tillman’s appeal, a reading of the grand jury transcript shows “an invasion of the attorney-client relationship and the disclosure of attorney opinions and advice.” Precedent holds “dismissal of the indictment to be the only viable solution,” the appeal brief continues.
Tyson and his office were as culpable as Campbell, Tillman charges, because they had an independent duty as Alabama lawyers to abide by the bar's Rules of Professional Responsibility.
The harm to Tillman was not cured simply because a different grand jury than the one that Campbell addressed ultimately returned the indictment against Tillman, the defense argues, because the “same attorneys who obtained Campbell’s testimony ... secured the indictment and prosecuted the case … therein lays the prejudice to Tillman.”
Mobile County Assistant District Attorney Martha Tierney sought and received permission to write the state’s brief on appeal. Customarily, the task would’ve been performed by the office of Attorney General Troy King. The incumbent GOP attorney general recently won re-election, defeating Tyson, the Democratic nominee.
Tierney acknowledges that Campbell, “representing the Sheriff in his official capacity,” was subpoenaed and testified before a grand jury in February 2002 about negotiations which were “conducted openly” over the food fund between the Mobile County Commission, the sheriff and their attorneys. An accord was reached in which Tillman retained control over the inmate food accounts “so long as those funds were used only for law enforcement purposes,” she wrote.
“The agreements between the sheriff and the county entered into concerning the food fund were matters of public resolution and public record,” Tierney states. “Campbell was merely the Sheriff’s agent in negotiating the agreements in his behalf.”
“… Campbell’s testimony was not used, submitted or referred to in any other proceeding, or any other grand jury, nor did it lead to the discovery of any information used in any other proceeding or before any other grand jury,” the state’s brief reads.
No charges were ever filed as a result of the 2002 grand jury investigation, Tierney notes.
Furthermore, Tillman has failed to meet his burden to prove that Campbell disclosed “any (of Tillman’s) confidences whatsoever” to the grand jury while “acting in his professional capacity as legal advisor …”
“… the record establishes conclusively that Bob Campbell’s testimony before the grand jury related to his capacity as agent and negotiator for the Sheriff and not to matters intended to be private or confidential,” Tierney asserted.
Tierney also cited existing law which holds that the attorney-client privilege “simply cannot be used to cloak wrongdoing.”
She pointed to a ruling that a “state government lawyer” may not refuse on the basis of attorney-client privilege to disclose communications with a state office holder when faced with a grand jury subpoena. A court has declared, she wrote, that “government lawyers stand in a far different position from members of the private bar.”
“… Campbell was (not) acting as a professional legal advisor” and his testimony “… concerned communications before third parties and matters of public knowledge, in the public record, and publicly communicated by Tillman himself during the meetings and in the media and other venues,” she concluded.
Tyson was not immediately available for comment.
When the matter first arose earlier this year, Campbell called the allegations "absolutely preposterous." Speaking to the Press-Register, he denied ever violating attorney-client privilege and suggested the charges were formed to penalize him.
He reiterated that position, again calling the suggestions of any wrongdoing on his part "preposterous."
“There was no attorney-client privilege breached, no confidentiality,” said Campbell. “Jack was in the paper all the time talking about these resolutions. They are wrong on all the factual and legal interpretations."
"It is an effort to find some way to find somebody else responsible for whatever the DA charged Jack Tillman with. A judge said there was nothing to it. It was frivolous. He was apologetic to me. He said I’m sorry you were mentioned because you shouldn’t have been.”
“I haven’t thought about that (recently) and I didn’t think much about their position at the time," Campbell said. "I thought the issue was over because the attorneys representing him also represent the sheriff’s department. It’s sort of strange that you can also represent the sheriff as an individual charged with criminal offenses. I’d have to pull out my files and think of all the frivolous and unwarranted and untrue statements made by the lawyers who filed the appeal who represent (Tillman) officially and individually which is a conflict which no one seems to care about.”
Tillman was reluctant to expand on the matter beyond what was stated in his argument to the appeals court.
“There’s so much I can say and so little I should say,” said Tillman. “So many things went wrong. The press leaves so much out. It’s all a long story.”
Since stepping down, Tillman, 59, has been writing an account of his experiences in law enforcement, particularly the many years he spent as an investigator and resource officer in the Mobile County Public School System before he became sheriff.
The brouhaha first arose from an almost archaic practice vesting sheriffs with the financial responsibility for feeding prisoners, exposing them to profit or loss depending upon their husbandry.
Under food fund guidelines, the sheriff was allotted $1.75 per inmate per day for their feeding. As the responsible party, the sheriff either profits or exposes himself personally to financial loss, according to state law, Tillman has repeatedly pointed out.
The metro jail’s daily population has ranged from 1,000 to 1,500 prisoners over the years. Assuming a population on any given day of 1,200 prisoners, if the sheriff was able to feed the inmates for $1.50 each on that day, he would make $300. On the other hand, if his management of the fund was such that he spent $2.00 per inmate, the sheriff under the law was personally liable for the $300 deficit, said Tillman. If the county were to increase the food allowance per inmate by one dollar to $2.75, based upon 1,000 prisoners per day, the additional annual expense to the county would be about $360,000.
Tillman noted that 55 of the state’s 67 counties continue to manage the feeding of their county’s inmates in the same manner that spawned Tyson’s investigation of the sheriff’s office here. In jurisdictions where county commissions manage the jail’s food fund, the accounts were never under the sheriff’s control, according to Tillman. The only exception is Mobile County where the change has cost the county nearly $2 million since 2002, said Tillman.
According to Tillman, there are two reasons why he was able to feed prisoners well at a lower cost than the county commission: one, the county commission, unlike the sheriff, is bound by bid laws while, two, the sheriff’s department here used Nick Coumanis who was a wizard at the acquisition, storage and preparation of food.
Tillman said he had not yet decided whether he would file a grievance against Campbell with the State Bar Association.
“I don’t know,” he said. “I just really don’t know. I don’t know at this point what we’re going to do.”
The criminal appeals court moves at its own pace so there is no telling when a ruling might come down, according to local attorneys. A cursory review of the the court's calendar available on its website suggests the court is lightly burdened during the next few months.
