The Siegelman case has been rife with appalling and politicized conduct.  But it gets worse. Much, much worse.  

The USAtty, Leura Canary, supposedly recused herself from the case due to substantial conflicts of interest involving her husband, a GOP political strategist running the political campaign for Siegelman’s gubernatorial rival.  In subsequent emails (PDF), Canary specifically gives directives and strategy to the AUSAs in her office handling — on multiple occasions.  

This breach of a "Chinese wall?"  Huge breach of USAtty Manual conduct, let alone professional ethics rules.

I thought I was beyond being shocked by misconduct in this case after all the political knife-wielding, with testimony known at the time to be misleading and sometimes just plain false.  I was wrong. 

AUSAs in the case had multiple ex parte communications with jurors, while the jury was deliberating on its verdict — passed through US Marshalls at the courthouse — which were never disclosed to either the judge or opposing counsel.  Via Time:

Grimes last year also gave DoJ additional e-mails detailing previously undisclosed contacts between prosecutors and members of the Siegelman jury….

The DoJ conducted its own inquiry into some of Grimes’ claims, and wrote a report dismissing them as inconsequential. But the report shows that investigators did not question U.S. marshals or jurors who had allegedly been in touch with the prosecution.

A key prosecution e-mail describes how jurors repeatedly contacted the government’s legal team during the trial to express, among other things, one juror’s romantic interest in a member of the prosecution team. "The jurors kept sending out messages" via U.S. marshals, the e-mail says, identifying a particular juror as "very interested" in a person who had sat at the prosecution table in court. The same juror was later described reaching out to members of the prosecution team for personal advice about her career and educational plans. Conyers commented that the "risk of [jury] bias … is obvious".

Beyond being incredibly stupid, this is a material breach of ethics.  No, and I mean NO, ex parte communications are to occur with jurors which are not immediately disclosed fully and completely to opposing counsel and the judge throughout the trial. Ever.

But during the deliberations process where any instance of bias can be crucial to the dynamics on reaching a verdict? You can bet this will come up on appeal.  There should also be serious investigation and consideration of severe sanction from the state bar and from the trial judge, whose orders on post-trial juror contact were blatantly violated as well.

I have never heard of conduct this egregious that did not result in severe, swift and ugly sanction.  But this hasn’t been a usual case, now has it?

What has been done internally in DOJ with regard to this misconduct? Nothing that I can see (PDF of Conyers’ letter), which makes this even worse. Previously, such a material breach of ethics should have resulted in swift and heavy sanction.  Also, there should have been a public airing of the information to the trial judge and opposing counsel by the DOJ once they learned internally about this serious breach.  Was there?  I don’t know yet…but I’m asking. More as I get it.

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

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