Prosecutorial misconduct in the Siegelman case?

Pic is prosecutor Louis Franklin of Alabama that convicted Don Siegelman.

Great article by Scott Horton from Harper Magazine.

An excerpt from Harper's Magazine:

In the course of jury selection, defense counsel sought and obtained an explicit instruction from the judge forbidding the prosecutors from conducting any independent investigation (outside the supervision of the court and the knowledge of the defendants) into any of the jurors. Here is the passage from the transcript:

Defense Counsel: Judge,… I want it clear on the record that we do not want the United States conducting any investigation… The point that I want to make crystal clear, Judge, is that in terms of this type of investigation involving any type of juror, it must be done with the approval of the Court. So I just want to make sure we’re all clear on that, that there’s no outside investigation. Your Honor conducts investigations when it comes to this jury.

The Court: Let me reiterate to everybody for everyone’s benefit. There should be no outside communication with anybody, be it the government, the defendants, attorneys, interested parties, anyone associated directly or indirectly with this case with any juror, any juror’s family, any juror’s friends, any associate of any juror. Take this as a direct order from this Court to everyone who has heard what I have just said.

But in a letter dated July 8, which I have obtained and attach here, a senior lawyer in Justice’s Criminal Division disclosed that–unbeknownst to defense lawyers and in violation of basic ethics rules–the Siegelman prosecutors continued to deal with the matter, and they also conferred about it after the fact with Judge Fuller. As the letter makes clear, Louis Franklin, the chief prosecutor, had one of his subordinates direct an investigation that involved the use of postal inspectors who limited their investigation to interviewing two jurors and checking the emails in question against test emails which these two jurors sent from their accounts. They concluded on this basis that the emails were “fakes,” which is to say, they were not emails sent by these particular two jurors. (In my opinion this conclusion reveals more about the orientation of the investigators than it does about the validity of the information.) Judge Fuller was briefed on this investigation and its conclusions, but nothing was shared with the defense counsel. This points to bad faith in the courtroom.

The conduct of Franklin’s office looks more like a cover-up than an investigation. Moreover, these new facts once more point to the prosecutor’s bad faith in the court room. We now know that Franklin himself knew of these emails because they had also been sent to a series of coworkers of a juror.

Franklin responded to this not by bringing it before the court and apprising the defense, but by seeking to hush the matter up. Had Franklin really wanted to get to the bottom of the issue surrounding the emails, which figures prominently in the current appeal, he would not have sought to block an inquiry in court and then conducted a secret examination that was carefully designed to go nowhere.

He should have consented to a subpoena to the Internet service providers which would have settled the matter conclusively. (We called and emailed to Franklin’s office to discuss the matter but have not heard back. We’ll update this post if we receive a reply.)