Don Siegelman
The federal judge who claims he reviewed documents in the Don Siegelman case related to the recusal of U.S. Attorney Leura Canary never actually saw any such documents, according to a court filing.U.S. Magistrate Charles S. Coody, from the Middle District of Alabama, states in an order dated June 27, 2012, that he reviewed in camera (in private, in his chambers) all documents that Siegelman sought and found they contained "no exculpatory matter" that would "further" the former governor's claims. Coody proceeded to deny Siegelman's request for discovery, just as he had earlier denied a similar motion from codefendant Richard Scrushy, the former CEO of HealthSouth.
By our unofficial count, Coody became the first of at least six federal judges to deny discovery on the Canary-recusal issue--the others being trial judge Mark Fuller; a three-judge panel of the U.S. Eleventh Circuit Court of Appeals; and, most recently, U.S. District Judge Clay Land, who was appointed to hear the case in the wake of Fuller's wife-beating scandal.
All six judges to consider the matter have denied discovery by essentially following Coody's lead--and his claim that he had privately reviewed all relevant material that Siegelman requested. But Siegelman's lawyers state, in a brief dated August 26, 2013, that Coody never reviewed any documents related to Canary's recusal. (The brief is embedded at the end of this post.) In fact, the Siegelman team states that Coody only reviewed documents related to primary government witness Nick Bailey and never even ordered documents about Canary.
In essence, Siegelman's lawyers are calling Coody a liar--and they are saying that Coody's lies have tainted the defendants' cases for roughly 2 1/2 years now. Do they have a point? Let's consider Coody's words from the second paragraph of his order:
After reviewing the submissions and hearing argument of the parties, the court ordered the United States to produce for an in camera review all documents that would be responsive to the defendant's discovery requests. The court has carefully and thoroughly reviewed all material provided by the United States. The material does not further the defendant's claims, does not contain exculpatory material, and contains nothing justifying an evidentiary hearing. Accordingly, for the more detailed reasons that follow, the court concludes that Siegelman's motion for discovery (doc. # 960) is due to be denied.
Near the end of his order, Coody returns to the issue:
The court has thoroughly reviewed in camera the documents that Siegelman seeks. . . . They do not support his hypothesis that other evidence exists to support his claim, nor is there anything in the material provided by the United States that is contrary to the evidence already in the hands of the defense.
Coody twice makes it clear that his denial of discovery is based largely on the fact that he has "thoroughly reviewed" all of the documents that Siegelman requests. And Coody's order makes clear that the most important of those documents likely are the ones involving Canary.
But in a brief filed a little more than one year later, Siegelman's lawyers state that Coody is mistaken--that he is, for lack of a more delicate term, a con man. In fact, defense lawyers point to specific documents, and cite precise language, that seems to prove Coody lied. From pp. 17-18 of the Siegelman brief:
The Magistrate Judge, however, did not order any Canary-related discovery.Instead, he entered two discovery orders, neither of which asked the government to turn over any documents related to Canary’s continued involvement in the prosecution. The two discovery orders required the government to turn over notes and documents “related to or developed from interviews of or meetings with Nick Bailey by any agent of the government.” Doc. 1042; see also Doc. 1040 (ordering Case: 12-14373 Date Filed: 08/26/2013 Page: 28 of 65 - 18 - production of “the binder provided to [an attorney] by his former client Nick Bailey”). Bailey had been a government witness who claimed that prosecutors had improperly shaped and scripted his testimony; his claims of testimony-shaping had nothing to do with Canary’s continued involvement in the Siegelman prosecution. Doc. 1096 at 5.
Having granted only Bailey-related discovery, the Magistrate Judge denied Siegelman’s request for materials relevant to Canary’s disqualification.
In a footnote on pp. 18-19, Siegelman's lawyers show that Coody offered pretty much the same language to deny Scrushy's request for discovery:
In denying co-defendant Scrushy’s similar discovery request, the magistrate judge wrote that “the court has laboriously reviewed the documents provided to it by the government related to this issue. . . . This is not a matter of withholding any documents; there are no documents.” Doc. 1070 at 19-20. Yet the magistrate judge failed to acknowledge that the “documents provided to it by the government” included nothing related Canary’s ongoing involvement. Indeed, the government was not ordered to turn over any Canary-related documents.
Coody, it appears, engaged in blatant subterfuge; Siegelman's lawyers caught him at it, but Coody's fellow jurists mindlessly followed his bogus lead.
What would genuine discovery regarding Leura Canary reveal about the Siegelman case? Why are federal judges resorting to deceit and chicanery to make sure it remains hidden from the public?
Appellate brief by former Alabama Gov. Don Siegelman challenging prosecution recusal, Aug. 26, 2013 by Andrew Kreig
