Friday, November 9, 2007
Former Alabama Governor Don Siegelman and his lawyers must feel a bit like a ping-pong ball at this point as his request for bail pending appeal of his conviction on corruption charges goes back before U.S. District Judge Mark Fuller for a third time. After turning down the original request for bail by Siegelman and his co-defendant, former HealthSouth Richard Scrushy, after their convictions, Judge Fuller took the unusual step -- at least in a white collar case -- of ordering the defendants to begin their prison terms immediately after sentencing. The defendants appealed to the Eleventh Circuit for bail, and that court remanded the requests of both defendants to the district court for further consideration.
On October 4, Judge Fuller again rejected Siegelman's request for bail, stating that he did not find the defendant carried his burden under 18 U.S.C. Sec. 3143(b) of showing a substantial question that would lead to reversal of the conviction. The Judge gave no real explanation for his conclusion, stating, "This Court is mindful of the Eleventh Circuit's order, which requests 'expeditious consideration and disposition' of these issues. Therefore, while this Court has given the merit of the issues due consideration, it will not issue a lengthy written opinion on this matter." That didn't quite cut it with Eleventh Circuit Judges Black and Marcus, who remanded the case again for a bit more thorough discussion of the denial of bail. In its limited remand order (available below), the appellate judges wrote, "We believe, however, that a more detailed explanation of the district court's reasoning would facilitate meaningful appellate review. Thus, while we appreciate the district court's alacrity in issuing its order on limited remand, we REMAND this matter once again to the district court, on a limited basis, so that we can properly determine whether Siegelman has met his burden of entitlement to release pending the resolution of this appeal."
While I doubt Judge Fuller will change his mind, and we're probably going to get that more "lengthy written opinion" on the issues, I suspect the Eleventh Circuit is sending a signal about granting bail here, despite the assertion that the remand is not a decision on the merits. The Siegelman prosecution has been the subject of a House Judiciary Committee hearing into political motivations for prosecutions, and the court of appeals judges noted that it was a "complex" trial, so maybe bail would be a good thing. It's not clear why the panel does not just order bail for Siegelman on its own rather than sending the case back again. A decision in favor of a defendant on the bail issue is certainly not unknown -- the Tenth Circuit granted former Qwest CEO Joseph Nacchio's request for bail after the denial by the district court without requiring an explanation of the decision.
With Siegelman's case remanded, co-defendant Scrushy's bail request may be headed for a similar bounce back from Atlanta to Montgomery. In an opinion (available below) issued on November 1, Judge Fuller gave the same basic reason for denying Scrushy's request, noting again that he chose to abjure a "lengthy written opinion." Unlike Siegelman's case, however, Judge Fuller also found that Scrushy posed a flight risk. The Judge wrote:
The Court rejects Scrushy’s creative argument that once sentence was imposed and he learned that he would be incarcerated for a period of time less than the Government had sought he had less reason than ever to flee. In this Court’s view, there is a significant difference between facing the abstract possibility of imprisonment for a period of time and the knowledge that a sentence of eighty-seven months of incarceration will be imposed if his appeal fails. The circumstances have changed. Scrushy now knows how much time in prison he faces. The Court finds that he has failed to show by clear and convincing evidence that he is not likely to flee if allowed to be released on bond pending appeal.
Whether the Eleventh Circuit judges will view Scrushy's case differently because of the flight risk determination remains to be seen. That issue is a tougher one for the appellate court to overcome because the district court is much closer to the situation, and flight is more of a judgment call that a court of appeals may not want to second guess, while the "substantial question" standard is more a legal determination in which appellate judges will have their own opinions on the merits. Scrushy is certain to cite to the limited remand in Siegelman's case to get another shot in the district court, and a decision should be forthcoming soon. (ph)