by Roger Shuler

Former Alabama Governor Don Siegelman probably thought U.S. District Judge Mark Fuller never would do him a favor. But Fuller has inadvertently done just that.

The point of Fuller's recent 30-page memorandum opinion was supposed to be that Siegelman should remain in federal prison pending appeal. But the opinion does just the opposite. In fact, Fuller actually makes Siegelman's case for him--showing that, under the law and the facts, Siegelman must be released from prison pending appeal.

How could a federal judge, someone you assume to be rather intelligent, make such a gaffe? My only explanation is this: People who are attempting to cover up wrongdoing are prone to step in doo-doo. And if you actually read Fuller's opinion with a somewhat critical eye, it becomes clear that the judge has stepped in doo-doo big time with this one.

And that makes me think he is doing his darnedest to cover up a sham of a prosecution.

With two recent posts, we have shown that Fuller's own memo proves that Siegelman, by law, should be released from prison pending appeal. And it's not even a close call.

Fuller worked up a 30-page memo in an apparent effort to make this look like a complicated matter. Well, it isn't. All you need to do is read roughly three pages of his opinion, conduct some quick legal research and . . . presto, you see that Judge Mark Fuller is blowing some serious smoke.

Here's an easy way to sum it up:

* The key question is: Does the appeal raise a substantial question of law or fact that, if found in the defendant's favor, would result in reversal or an order for a new trial.

* Fuller's own words show there is a substantial question of law on both key charges--federal-funds bribery and honest-services mail fraud.

* On bribery, Fuller indicates there is some question whether 11th Circuit law requires a quid pro quo, a "something-for-something" arrangement, in order to have a conviction. And as we have shown from a 2007 case--U.S. v. McCarter, 219 Fed. Appx. 921--there is no question about it. The language in McCarter is clear: "To prove a defendant is guilty of bribery, the government must prove there was a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." And McCarter is based on a 1999 U.S. Supreme Court decision, so its grounded in pretty solid stuff. So there you have it: The judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 1, Fuller 0.

* On honest-services mail fraud, Fuller indicates that he has no clue what he is talking about. He states that there is some question whether a quid pro quo is required for a mail-fraud conviction. And as we have shown, a quid pro quo has nothing to do with mail fraud. It is not remotely an element of the crime. Once again, the judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 2, Fuller 0.

* As for questions of fact, all facts are in question because there is no transcript of the case--and there won't be one for at least another two months. Fuller spends almost 16 pages of his memo reciting his version of facts in the case. But those are not facts, in a legal sense, at all. And one can only wonder what dark crevice he pulled them from. Score: Siegelman 3, Fuller 0.

I would say Siegelman is pitching a shut out, and Fuller is toast.

Does this mean the 11th Circuit Court of Appeals will be releasing Siegelman from prison any moment? Of course not. That court is made up of judges, and the whole point of this blog is to show that judges often are the last people you want to trust with the law. And for all I know, the 11th Circuit might consist of justices whose respect for the law may be no greater than Fuller's.

But if the law still means anything in the Age of Rove--and that's a mighty big if--Don Siegelman should be out of prison pretty darn soon.

Mark Fuller's own words prove it.

Originally posted at LegalSchnauzer.com

Locust Fork News and Journal editor and publisher Glynn Wilson is still in holidaze vacation mode, thinking about a novel idea...