When Did the US Postal Inspectors Replace Our Courts?
Yesterday, Artur Davis revealed yet another example of potential misconduct in the Don Siegelman case. He revealed that, at the same time as Judge Fuller was refusing Siegelman’s lawyers’ motions for an investigation into emails that may have proved juror misconduct, the government–the postal inspectors!–were conducting a secret investigation into the emails.
At issue is a series of e-mails that arose in 2006 suggesting that two jurors had outside influence as they decided Siegelman’s bribery conviction. After he was found guilty, Siegelman sought a new trial over the e-mails, printed copies of which had been mailed to defense attorneys.
U.S. District Judge Mark Fuller denied the motion for a new trial, ruling that the allegations were unsubstantiated. Siegelman has cited the issue as a central point in his ongoing appeal.
Two weeks ago, the head of the Justice Department’s appellate division, Patty Merkamp Stemler, informed Siegelman’s attorneys that the department had discovered undisclosed information about the controversy as attorneys prepared for the appeal. In a July 8 letter, Stemler wrote that while Siegelman’s mistrial proceedings were pending, acting U.S. Attorney Louis Franklin asked U.S. postal inspectors to try to determine who sent the e-mails through the mail.
U.S. Marshals later informed Fuller that the inspectors had concluded the e-mails were fakes. They determined, for example, that one e-mail didn’t match up with the corresponding juror’s e-mail account.
But the information produced for prosecutors and given to the judge was never passed along to Siegelman’s attorneys for cross-examination. [my emphasis]
Here’s how Governor Siegelman explained the whole issue today:
The emails were mailed anonymously to defense lawyers and members of the media. They were allegedly between two jurors — including the jury foreman. The conversations in the emails were dated during the TRIAL and not deliberation. They discussed how to get others to go for conviction. One in particular said "Gov is up shit creek." Another said "all politicians r scum." Another said "37 coming along. Keep working on 20." – referring to juror numbers. This is just a sampling.
We filed a motion and asked that the emails be investigated. The prosecution objected and the judge overruled us. We filed an additional motion asking that the servers be preserved in case the appellate court wanted to go back later and investigate. The prosecution objected to that also and the Judge overruled us again.
Now we know that after their protestations about how any investigation would destroy the sanctity of the jury process, the prosecution undertook a secret "investigation." The Judge was informed of the "results." Yet the defense was never notified. The prosecution then told Judge Fuller that the emails were fabricated while the judge was considering our motion for a new trial based on those same emails.
Judge Fuller then sat in judgment with prejudicial information in his mind that was never disclosed to the defense. The defense had no opportunity to be involved in the investigation, question anyone, or ask questions. A per se Due Process violation.
It was an outrageous breach of ethics. The government should never have conducted a secret investigation, the judge should never have been told, and above all, both the judge and the prosecutors should have immediately told us — yet we were never told until this last week, about one year and three months after the fact. [my emphasis]
In other words, the prosecutors won a judgment that no one should conduct an investigation into the emails, but then had an investigation conducted themselves. Rather than having full discovery on both sides, and rather than giving the Defense team copies of the evidence in question, the prosecutors made sure the investigation happened secretly. Rather than a transparent process conducted between two antagonistic sides of the case, postal inspectors conducted the investigation, in the dark of night.
That’s what the government resorted to in its efforts to throw Don Siegelman in jail.
Our Attorney General, however, seems unperturbed by this news.
Davis: Another quick question. Disclosed this info on July 8 of this year. Do you know about the circumstances about which St[e]mler learned about these communications? Concern again would be this–One year after this ex parte communication, the Marshall service disclosed it to govt. Would raise questions about whether they’ve turned over all information. Frankly, it appears that the Marshall service may not have told Ms St[e]mler until very recently. Does it trouble you that Marshall service didn’t disclose contacts with Judge Fuller? Should Judge Fuller have disclosed that to Defense Counsel.
MM: Not going into Fuller’s decision.
Apparently, the prosecutors in Siegelman’s case decided to replace the antagonistic Court system with a postal inspector investigation–without telling anyone. And the Attorney General, seems remarkably sanguine that the Court system has been secretly replaced by the postal inspectors.
Update: Scott Horton has a much more thorough treatment of this, along with the letter describing the investigation.
Another great post. Was just catching up on the Siegelman conversation. I was sorry I missed it.
I don’t see how the US Post Office has any expertise in telling whether emails are fake, but I do see the use of involving the US Post Office if I were wanting to know ‘who put these envelopes into the US postal system’?
If those emails were printed out and “snail mailed” to the defense attorneys and the news media, someone within the state or federal government was wearing a white hat and trying to right the scales of justice.
The US Post Office has computerized its mail system. All snail mail now (I believe) can be tracked back to time it was processed (and probably to the the mailbox in which it began its journey). If the prosecution conducted its own secret investigation into who mailed the snail mail I’ll wager they were trying to find ‘the mole’ among them. Since they had not hired any Democrats, it was going to be a harder process. Closed circuit TV cameras in post offices and on street corners would be involved in this process.
That the emails were fakes–well we just have to take the government’s word for that, right?
If I understood Gov. Seigalman correctly, hard copies of the meails were snail mailed.
WHich make the postal inspectors the correct federal agents to conduct the investigation.
But the investigation was done secretly, without Siegelman’s defense lawyers–so I assume the worse case motivation on the part of the government.
Well, defense lawyers don’t normally participate in criminal investigations. What is weird about this is that the prosecution argued htat doing ANY investiagtion would be a bad idea, won the motion and then turned around and essentially defied the motion.
Nuts.
And the judge did not grant defense’s request that the email server be preserved. So when the US Postal Inspectors claim the emails are ‘fake,’ Siegelman has no way to independently verify this.
I think if the emails are real, and since the prosecutors were in the middle of a politicized prosecution, then the prosecutors are being internally consistent:
that the investigation of communicating jurors would screw up the show trial, and that a top priority would be to identify the mailer to Siegelman’s defense team of those hard copies of the jurors’ email.
Right, but not after the Judge had ordered that no investigation of any sort be undertaken.
Frankly, what I suspect happened is that Franklin thought that Scrushy or Siegelman forged the emails to try to get off. So Franklin had an investigation done, thinking he might catch Scrushy or Siegelman attempting to drum up a reason to throw the case out.
Fair enough (though why Scrushy and Siegelman would have ASKED for an investigation if they had sent the emails, I don’t know). But since the Judge ordered that no investigation take place, and since Franklin argued against an investigation, then it’s a problem.
My point, of course, was that Franklin fought investigating the emails in court, but then had the postal inspectors do it on his own.
Except that the hard copies are not original or likely to be the best evidence regarding the timing, origin, destination(s) and content of the communications.
I think they were trying to figure out WHO mailed the hard copies.
LHP
I grant you that they were trying to find out who mailed them, grant you that postal inspectors were the proper people to do so, and even grant that Franklin probably thought he’d catch Scrushy or Siegelman in mail fraud or something.
But.
First of all, the issue was that the emails were purportedly sent (Siegelman’s team wanted to talk to teh ISPs, which is where I’d look to see if emails were sent).
So even putting aside that Franklin first got the judge to rule out investigations, and then conducted one, how do you justify investigating who sent the emails without first determining whether or not they were sent?
How do you jump from potentially improper emails, IGNORE the question of whether they were sent altogether, and jump immediately to why they were sent and by whom? I don’t see any logical reason to do so. Now perhaps they DID do the internet investigation and they’re not telling the results of that, but then why?
1. During the Bush maladministration.
2 July 8
3. 2006
Taking your headline literally. One of the above.
Good’un- but I would bet January 20, 2001 is closer- if not bang on.
Obviously commercial carriage long pre-dates the earliest codified state laws bearing on its standards. From at least the days of the earliest bets made near the docks in Holland & England & Portugal as to whether & when ships might return became hedges leading to the insurance industry- it was
not just assumed that common carriers were entitled to inspect for reasons of safety- including in avoiding being claimed by say one of England’s many royally commissioned privateers for having failed to take steps to avoid being drafted as an innocent agent to some other nation’s imperial ambitions- it was so vital to their continued existence that customs to that effect bled into court rulings which bled into early statutes & eventually the panopoly of interests which are manifest in the regime of comprehensive multi-jurisdictional statutorily-based regulation that Charlie McCarthy- er- Ronald Reagan was installed as figurehead to eviscerate.
Those rights of inspection were never interfered with & never curtailed by any governmental interest so long as they were exercised for the reasons of safety & self-preservation for which they were always assumed. And the same was assumed to apply to state-operated entities like the USPost.
Going macro to micro for example: for many years prior to the current Reign of Error if a DEA agent were to enter a USPost sorting room with the intention of getting a USPost employee to find a letter for him which the DEA could then open- he would need to present & leave with the USPost worker a transportable & independently verifiable faithful copy of a search warrant IE the order of the duly appointed or elected judge stating on its face that it was only given based on that judge having been satisfied that it was the right & proper thing to do under the law based on the DEA as agent of the state having shown the court “probable cause” that is sworn-true facts which by application of reason connect the state’s interest in the contents of that letter to a certain threshold liklihood of crime- or if not the USPost worker could- & I am told often would- go “postal” on the DEA agent’s ass.
But for its internal purposes- even for its enduring commercial viability- the USPost has always assumed & been granted by the courts a wide degree of deference when it comes to its own searches of the material it carries: such as to prevent internal theft of their customers’ valuables – or to try to ensure it is not being counted on as a reliable-to-the-point-of-commercially-insurable innocent agent of commercial traffic in contraband [eg illegal narcotics] or death [eg the anthrax letters].
And there was a bright line between the two sources of mail interruption- which bright line was enforced by the third branch of the USG.
I suspect- partly from what a great ratio of those to whom I’ve spoken of it that have expressed to me their surprise- that even now- when we are a little less from a year in determining when how long it will take & how much money it will cost us to excavate out all the bugs & defects even now- maybe more now than ever before- being installed under the authority of the current Reign of Error- most of our good citizenry & burghers remain mostly comfortable that they are unlikely ever to be personally interested in the painting over of that bright line.
Effectively that bright line was as good as gone the moment we gave Karl Rove a key to the executive mansion. All that was needed to get away with it was some malleable event. To Boss DC 9/11 was no tragedy- it was an opportunity- not just to advance the agenda he & Addington had been working on together for two decades & not just to get away with it including making a buck & ensuring an easier path for successors with their bent of mind- but to go further than either had ever imagined in setting the parameters of the American regency.
The historical importance of former Governor Don Siegelman will lie first in his value as a poster boy for what the combined forces of the Republican party & the American conservative movement & the military neocons & the militant religous right can achieve- & thereafter in his continuing quest to expose all the perverse wiring & plumbing of the US DOJ which have occurred- are occurring- & will continue to occur- long after the official heads of the Reign of Error- Boss DC & the Water Boy- have slouched off the stage- & long after the Establishment’s Marloboro Man the ubiquitous Stephen Hadley has finished supervising the shipping out of the last paper shredder & man-sized safe & self-suiciding e-communication technology.
The Obama administration is going to have to inventory the whole sorry mess just to keep the ship of state afloat- & the concern here & elsewhere is that then with the new oh so hospitable & accommodating C-in-C & all those Blue Dogs & remaining GOOPer hounds still around to lick each others behinds all the abuses of the Reign of Error are going to be quietly entombed as in Pandora’s box. Don Siegelman is a living breathing spokesperson for not letting that happen.
OT
StrangeWorld gets stranger.
Porter Goss Appointed Co-Chair Of House Ethics Committee
Is Pelosi psychotic?
Is that current, or you talking about something from back when he was in congress?
Omigod. You’ve got to be kidding me.
here
As Goss might put it, it’s “just one of those mysteries.”
This is sick. Pelosi agreed?
What does Porter Goss have on Pelosi? Is this part of the backroom deal that took impeachment off the table?
Bob in HI
from ‘the hill’ article: “unlike previous bitter partisan fights over the makeup and staff of the full ethics panel, Pelosi and Boehner worked closely together to select the board members.”
bold – mine
nausea – on the house!
While in DC, I couldn’t even get the Postal Inspectors to investigate someone stealing my mail. Their response – get a PO Box.
This continues the Rovian “veneer” of respectable government action. Just like that ridiculous Lamar Smith “questionnaire” enterered in the Congressional Record.
It’s real. Porter Goss Damn your eyes, Pelosi, who next? Foggo? How ’bout Cunningham?
And do postal inspectors have expertise in computer email and mail servers?
The postal inspectors woul be investigating the snail mailing of the hard copies. As to expertise with email and servers, if they had a question tey didn’t feel they could answer, they would simply call up the FBI’s computer unit.
Not a big problem
Doesn’t this just about automatically beg for an appeal?
But Siegelman is already appealing, isn’t he?
I don’t see how this will stand up on appeal, even in the Roberts/Alito court.
Bob in HI
Yes! It also begs for formal impeachment hearings to begin focused on USA Franklin, Judge Fuller and AG Mukasey. At a minimum.
Not that I mind impeaching Mukasey, I love the idea just on basic principles, but the lionshare of this went down under Gonzo.
no nancy, you were supposed to hold karl rove in contempt, not the american people.
OT-apologies if noted earlier, I have not been able to be around much for the last couple of weeks.
Torture memos released – ACLU has them posted
and may I add, Porter Fucking Goss? Hey, I know, let’s put a pyromaniac in charge at the match factory.
Beginning to think Mukasey was brought in to make Gonzales look good. His dedication to gutting the law in the service of the Great GOP Cover Up has been breathtaking.
Oh yeah–Just did a post on Pelosi and Porter, sitting in a tree.
Siegelman’s response to this question posed by EW really got under my skin
emptywheel to Don Siegelman
n response to Don Siegelman @ 26 (show text)
To what degree do you think each of the following were factors in their prosecution of you–and in what order of priority?
1) You were successful in the state where Rove first had his great success.
2) Your lottery threatened their gambling-related schemes to launder money through Indian tribes.
3) They just couldn’t bear to have a strong Democrat in a solidly southern state.
Siegelman’s response to emptywheel @ 40 (show text)
All of the above, plus, after my re-election, I was intending to hold the Bush Administration accountable for its policy in Iraq, as well as its failed economic and education policies. Having been a former Secretary of State, Attorney General, Lt. Gov, and Governor, I was planning on using my contacts in key electoral states to hammer this Administration on its failed policies.
My indictment came on the day I was leaving on my first fundraising effort, flying to New York to meet President Clinton to raise money for Democrats running for Governor.
– Don
http://www.ContemptForRove.com
I agree. Siegelman’s comment that
reminded me of reports that Eliot Spitzer had planned to announce an investigation of investment banks (or some sort of Bush friendly business)in New York. Unfortunately for us, Bush cronies leaked Client-9’s name and his use of an escort service before Spitzer caused any waves.
I guess the other similarity is that both Siegelman and Spitzer were democratic governors. (and Gov. Gray Davis of California). And the attempt on removing Pres. Clinton.
Republicans like to undo elections.
There could be interesting outcomes from the USPS’ involvement. On the question of whether USPO understands email architecture, the answer might be maybe. In the early Reagan years as president the USPS rolled out a product it called email at a time when Western Union still had a thriving business called telex, though WU rapidly migrated to online transmittal of text. After its brief debut of the email service, USPS did a market analysis and decided it was not going to support the product, so, it discontinued offering email. I believe USPS was the original entity to coin the term ‘e-mail’.
Although I’m only slightly read-into the Siegelman problems discussed in the interview several hours ago, as he seemed to characterize it, grounds for a declaration of mistrial likely exist, though bar, bench, and USAttorney office all will need to do some soul-searching if they each have several involved members. I like the idea of treating some or all of the emails as possibly real or plants.
Somewhat related in re Siegelman: I was going to ask the exGovernor what he might have thought of the US Chief Justice’s way of addressing AL state electoral law in the widely panned opinion in re Riley v Kennedy decided May 2008. The electionlaw hackery mentioned in the Siegelman thread at 12:30 p.m. today seemed to support the tales of political elbowing in the election which Siegelman ‘lost’. Use of ‘bonded’ techs to service ‘jammed’ evote machines on electionday is an issue one vote integrity expert I have read continues to include in recommendations to vote oversight officials as an area of prime risk, so to speak.
On the USPS matter, maybe the National office of the US Postal service has a nice IG who might become sufficiently curious about the quality of the ‘inspection’ for origin of those emails, to provide a statement in the exGovernor’s next court action, if there is another court hearing.
On Goss’ accession to a new post, he might be just the guy to soothe the perturbed Babak Pasdar’s worries about what goes into Quantico unfirewalled, if it involves any members of the lower chamber. SenCLevin’s remark about secret annexes to secret laws recently may apply to some of what the House does, or Goss does, too, when he does things.
The jurisdiction of the semi-privatized US Postal Service to conduct domestic investigations of personal digital electronic communications is based on what, exactly? What’s their reach, to whom do they report?
How is it that any aspect of this was not made available to the defense? And why the court order specifically saying that the relevant servers and their data need not be preserved? How do you spell R-A-I-L-R-O-A-D?
Actually Postal Inspectors were one of the first forms of federal investiagtiors. Don’t quote me, but I think they pre-date the FBI.
They investiagte mail fraud, misuse of the mails, theft of mail and people sending dangerous or contraband items through the mails. They have a variety of tools available to them that are a little differnt than the usual ones you think of. One is the “mail cover” which traps and tracks a letter from it’s mailbox o origin to it’s final destination. Another is the mail intercept, which requires a warrant, which is similar to a wiretap, only they get to open your mail.
Of all of the services I ever worked with, the postal inpsectors were my favorites. Here’s their wiki
Investigating the postal aspect of an exchange of e-mails that purportedly relate to jury tampering seems a red herring. That is, if what you intend to investigate is tampering, rather than, say, who tried to blow the whistle on tampering or documenting the tampering for future blackmail.
As a means of communicating to orchestrate illegal jury tampering, mail delivery seems unhelpful because too slow, too easily intercepted. But then, e-mail seems a profoundly ignorant way to orchestrate illegal activity, too, because of the traces it leaves.
Using postal inspectors is an interesting dodge for a USA who was told by the court not to investigate. It’s like Rove saying he didn’t urge the DOJ to do XX — when in fact he demanded the SS, part of the Treasury, or the Postal Service to do it. (The kind of dodge that allows you seemingly to deny what you’ve in fact done.) In reverse engineering what may have gone wrong, it’s not the first place one would look. Always useful when a major strategy is to run out the statute of limitations.
This aspect of the l’Affaire Siegelman seems as incompetently run as the rest of the Bush Justice Department. Incompetent, that is, from the perspective of administering justice. When viewed from the perspective of hiding what’s done, it’s reasonably competent.
Political accountability? Miss Nancy, via decisions like appointing Porter Goss to oversee a House ethics panel, seems to have taken that off the table along with impeachment. Because it’s something she’s determined to deny the GOP from using against Democrats, the next party to give itself a permanent majority?
Talk about expertise with emails, the USPS’ original concept was to control the servers, then when you sent your email, they would print it on a sheet of computer paper and snail mail it to the addressee the next day.
I agree with the fraud appearances depiction ew is pursuing, which obliquely correlates to my somewhat OT citation of the Riley v Kennedy opinion. In that case, the issue was a local jurisdiction’s right to make appointments in a zone the civil rights act ruled could have leader selection process which would affect voter effectiveness and fairness of distribution among ‘minorities’ only by so-called DoJ ‘permission slips’. Roberts laconically observed in his opinion that the appointments issue was moot because the so called section 5 VRA rule for AL was not triggered. Things are unique in AL, which is what I think Roberts was attempting to recognize in an excess of Federalist discretion in Riley v Kennedy. But I think Siegelman has much to strengthen his objection, on the issue of secret evidence shared in camera exparte.
Scott Horton sharply criticizes the credibility of the DOJ’s conclusion, after this faulty investigation, that the e-mails — and hence, the jury tampering — were fake.
http://www.harpers.org/archive…..c-90003311
This Sixth Amendment violation, preventing cross examination as to the emails, is potent enough for the Eleventh Circuit to reverse, and I believe it is very helpful for Siegelman in his appeal. In the Eleventh, and most other circuits there are strong precedents for this.
It’s a violation of the Federal Rules of Criminal Procedure as well as ethics.
Judge Fuller came into this trial hard wired with prejudicial information–the architects of his getting on the bench with no federal litigation experience from the 12th district bench in Alabama were Republican political machine hacks in Alabama.
Scott Horton has done a lot of digging and posting as to a number of substantive reasons why Fuller should have recused himself, and not been on the bench in the first place.
One thing I want to add to this strange brew is the idea that a really professional bunch who wanted to use e-mail secretly might begin with a real world exercise away from the field where they intend finally to use their knowledge. So, for example, let’s say you want to use e-mail or fake posts on blogs for political slandering and such. You could begin on blogs related to some small topic like the election of officials for a small non-profit corporation. You might use fake names and hide identities and such. Then, if you get away with it you’re done. If you don’t and there are challenges, then you get to see how that goes and what paths your challengers might use to discover the real identities or possibly even what kinds of court actions might occur.
Take that and apply what you learn to the ‘real’ plan. How do you do it? What cover do you provide? What laws are involved? How do you avoid being discovered or charged with a crime? How would you weasel out in court?
I suggest this because I know of just such a thing and have followed the discussion of it over several years. It’s still unresolved today with several court cases, at least one federal, pending.
The primary similarity to the election fraud and WH political e-mails and the Siegelman case is who owns the servers and how e-mails are disappeared.
Anybody who steps into this as a prosecutor or investigator should beware — it isn’t going to be easy to prove anything — if these are real pros.
Wasn’t the server Rove was so fond of for his off site e-mail accounts in Chattanooga? When one has made a study of advancing unattributed information and collaterally overturing elections the ability to scramble the audit trail becomes crucial and that this was an intention is crystal clear in the circumventing the White House data systems.
At this level of coordination in Florida, Alabama and Ohio the discipline of street corner meetings and deniability are lesson one. It becomes increasingly clear in the effects at the level of gaming the system that is in play. Its really a scope of operation beyond what happened with Plame which originated with the VP. The Siegelman matter shows the nature of the on the ground organization, driven by data and rumor and with Rove as the puppet master whispering the agenda. Remember W’s cynical jabs at Rove in 2006 after the Dem’s took the house.
The thing that strikes me is the fungibility of the tacit corruption. In other words Rove didn’t have to work at explaining to others how the game was played.
The emails really in of themselves without some kind of credible sourcing prove nothing. But the massive destruction of the record of political operations run from the White House in and of itself merits sanction. Much at this point depends on speculative inference and here the fire wall of executive control against zealous prosecution will not get away from the administration. The pressing of the inquiry for the sake of history is meritorious in and of itself and the emergence of detail in the light of inquiry is heartening in understanding.
The 200,000 that turned out in Berlin for Obama are the same 200,000 that rallied against the war in March 2003 in a gesture of globalized hope. The embers are not dead. The game is not up yet.
Late to the party here, but the ‘investigation’ of the authenticity of the emails was, to use a specialized geek technical term, totally lame. According to the government’s description, the postal inspectors didn’t look at the email servers in question, they only looked at and asked about email client software. That’s not an investigation, that’s a whitewash.
I don’t know what the Postal Inspectors have done for LHP when she was at the SDNY but from what I’ve seen of them, they’d be hard pressed to find their way home.
Since the current exchange has embarked on IT, I thought I would place links to some progressively OT matters. Crew has petitioned for review of the results of the Ocio’s completion of phase 2 of restoration of 270+ days ‘lost’ emails; part of Payton’s plan evidently is to maintain she has no tapes from OVPoctober2003 and similar ITamnestic ‘technical difficulties’; I hope the missing pfiab month’s emails are recovered in the Crew process. A longtime Republican IT expert in OH has pled to AGMukasey for what looks like a TRO based on a KRrrr missive, BradF will interview the plaintiff evidently within the hour. I believe some versions of these links may have appeared in threads here recently, yet, fwiw.
Relatively OnTopic, I tend to agree with lhp’s USPSOpensLettersAddressedToYou procedural remarks, having studied some of the regs in a training program once. The trainer had a sly remark, however toward the peroration of the course, an advisory that while employees of many responsible posts are career civil service, nevertheless the leadership job is a patronage post; which is partly why I suggested a USPS IG venue outside of AL as one way to see through the implausibles in the Siegelman emails of-real-authorship or of-manufacture research.