Letter From Law Professor to Attorney General Holder

Following is a letter from Bennett L. Gershman, James D. Hopkins Professor of Law in White Plains, New York to United States Attorney General Eric Holder.

May 1, 2009

Honorable Eric H. Holder, Jr.
United States Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001

Re: United States of America v. Don E. Siegelman, et al.
In the United States Court of Appeals for the Eleventh Circuit No. 07-13163-B


Dear Attorney General Holder:

I am a former prosecutor in New York State. I served in the office of Manhattan District Attorney Frank S. Hogan, and thereafter prosecuted official corruption cases as an Assistant State Attorney General. I teach and lecture on criminal justice matters, and have published two treatises, Prosecutorial Misconduct (2nd ed. Thomson-West) and Trial Error and Misconduct (2nd ed. Lexis Law Publishing). I am taking the liberty of writing to you in support of applications you have already received to dismiss the charges against Don Siegelman.

I have studied, commented, and written for many years on the conduct and misconduct of prosecutors, both federal and state. I have testified before Congress and in courtrooms on the legal and ethical responsibility of prosecutors, lectured in training programs for prosecutors, and been quoted on by the media. I have followed the Siegelman prosecution for several years, and I have lectured and written about it. With this background I can say that among the thousands of cases of prosecutorial misconduct that I have studied over the years, the Siegelman case stands out starkly. Indeed, I have never encountered another prosecution in which it appears so clearly that the prosecutors were zealously bent on pursuing an individual, rather than on a crime that needed to be prosecuted. As an example of a bad faith prosecution, the Siegelman case may be without parallel.

I would like to identify several disturbing irregularities in this case that appear to dwarf irregularities in other recent federal prosecutions that have received attention not just in the media but from the Department of Justice.

1. Despite doubts expressed by line prosecutors about evidentiary weaknesses in the Siegelman case, it appears that the investigation involved an unusually long and far-ranging process of cycling and recycling multiple theories and allegations for over five years before an indictment was brought, dismissed, and another brought.
2. A witness who testified under oath before the House Judiciary Committee, Jill Simpson, stated that Rob Riley, an acquaintance who is the son of Alabama Governor Bob Riley, told her that his father and Bill Canary, a prominent Republican operative in Alabama with close ties to the White House, had spoken to Karl Rove about mobilizing additional Justice Department resources to bring a second indictment against Mr. Siegelman after the first federal indictment had been dismissed for lack of sufficient evidence. There appears to be considerable independent evidence to corroborate Ms. Simpson’s allegations.
3. It appears that pressure was brought from both the Justice Department and the White House to find prosecutable evidence against Mr. Siegelman. As Douglas Jones, a former and highly respected United States Attorney in Alabama, stated before the House Judiciary Committee: “It appeared that agents were not investigating any allegations of a crime, but were fishing around for anything they could find against an individual.”
4. The key witness for the prosecution, Nick Bailey, appears to have been interviewed more than 70 times in an effort to get him to adjust his testimony to mesh with the theory of the prosecution. It has also been alleged that records of these “coaching” sessions, which also included threats to prosecute Mr. Bailey’s brother, were not disclosed to the defense, in violation of discovery requirements. There is also some reason to believe that Mr. Bailey’s testimony before the grand jury was manipulated to accord with the prosecutor’s theory of the case.
5. The United States Attorney for the indicting district, Leura Canary, the wife of Bill Canary, had recused herself from the Siegelman prosecution because of the obvious conflict of interest. However, it appears from published reports that Mrs. Canary was nonetheless heavily involved in the investigation and prosecution of the case.
6. The strained theory of bribery relied on by the prosecution appears to be unprecedented. The payment by co-defendant Richard Scrushy was neither to Mr. Siegelman nor to his campaign. Mr. Siegelman personally received nothing. Mr. Scrushy previously had been appointed to the exact same medical board by Republican governors. Indeed, this may be the first bribery prosecution in U.S. history predicated on an issue-advocacy campaign contribution.
7. Allegations of misconduct by jurors, particularly a series of juror emails, precipitated an investigation by the Justice Department, as well as an ex parte communication between the government and the trial judge while a defense motion on this precise issue was pending before the judge.
8. There appears to have been a double standard used by the Justice Department in the prosecution of Mr. Siegelman. Reports from a key witness indicated that payments and free campaign items were made to Republican politicians in Alabama exactly like those to Mr. Siegelman, but none of these allegations was ever even investigated.
9. It appears that several of the prosecutors who were cited for misconduct by Federal District Judge Emmet Sullivan in the prosecution of former Senator Ted Stevens were also involved in the Siegelman prosecution.

When one examines the Siegelman prosecution within the context of the “U.S. Attorney Scandals,” which involved the discharge of eight U.S. Attorneys, and the Justice Department hiring scandal, which involved a political litmus test for hiring Justice Department employees, there is no precedent in our history for how the Bush Administration systematically politicized the Justice Department. Several critical reports from the Inspector General confirm this claim. I believe that in the post- 9/11 legal and political climate, for some federal prosecutors, based on their own moral code and political self-interest, there was a sense that they could prosecute as hard and as viciously as they wanted to, with nothing to stop them, certainly not the Attorney General or the Justice Department.

When I was a prosecutor many years ago, I regarded the Justice Department as a ministry of justice, an office that enjoyed an outstanding reputation for independence, impartiality, and the fair-minded pursuit of justice. Over the past eight years, that reputation has been severely tarnished, and the quality of justice strained. And there is no better example of the corrosive effect on the reputation of the Justice Department, in my opinion, than the prosecution of Don Siegelman. I am reminded of a quote from one of your predecessors, Justice Robert H. Jackson, in a speech more than seventy years ago to the annual conference of United States Attorneys. In discussing the difficulties and challenges of federal prosecution, Justice Jackson identified “the most dangerous power of the prosecutor” to be the power to pick defendants rather than choose appropriate cases that needed to be prosecuted. I can think of no better illustration of the abuse of the prosecutorial function than the prosecution of Don Siegelman. Terminating this prosecution by dismissal of all charges would properly serve the ends of justice and fairness.

Thank you in advance for your consideration


Most respectfully,
Bennett L. Gershman