Not only Seigelman -- Karl Rove used US attorneys in attempt todestroy Mississippi judge, Democrat

In an exclusive interview with RAW STORY, a former Mississippi

Republican state legislator who was later backed by Democrats to win a

seat on the Mississippi Supreme Court discussed political prosecutions

and what he sees as the corruption and politicization of the

Department of Justice.

Mississippi Supreme Court Justice Oliver Diaz Jr. was indicted in 2003

on charges relating to his receipt of a loan guarantee from trial

lawyer Paul Minor - a personal friend and the largest Democratic donor

in Mississippi - to help defray campaign debts. A Bush-appointed US

Attorney, Dunnica Lampton, brought charges of bribery against Diaz,

Minor and two other Mississippi judges.

Diaz was acquitted of all those charges. A jury acquitted Minor of the

charges related to Diaz, but was unable to reach a verdict on other

charges. Within days of his acquittal, Diaz was indicted a second

time. He was again acquitted.

"Normally, a criminal investigation begins after a crime is

committed," Diaz told me. "Investigators are sent out to gather

evidence and a list of suspects is drawn up. Sometimes an

investigation is begun after a complaint is made about suspicious

activity. In our case neither of these things occurred."

"In other words," he continued. "An individual was singled out for

examination from the federal government and prosecutors then attempted

to make his conduct fit into some criminal statute. This is not how

our system of justice is supposed to operate."

Diaz first contacted me after having read Raw Story's "Part One - The

Political Prisoner" in this series, which reported on the prosecution

of former Alabama governor Don Siegelman. Our interview was conducted

over a period of several months in telephone conversations and email

exchanges.

"The Permanent Republican Majority Part V: Interview with Diaz," is

part of our ongoing investigation into the undermining of both the

electoral process and the US legal system by corporate interests,

their lobbyists and elected and appointed government officials aligned

with them.

Prior to being appointed to the judiciary, Diaz served in the

Mississippi House of Representatives as a Republican for seven years,

representing Biloxi and D'Iberville. Diaz was elected to the

Mississippi court of appeals in 1994, and in 2000 he was appointed to

the state Supreme Court by Democratic governor Ronnie Musgrove.

What emerges during our interview are allegations of even more

aggressive prosecutorial tactics and intimidation than has previously

been reported. The allegations seem to fit the pattern of prosecution

in Alabama, where another Bush-appointed US Attorney successfully

prosecuted a popular democratic governor for bribery. As in Alabama,

Diaz was indicted a second time after the first set of charges failed

to hold up in court. Diaz was ultimately acquitted and still retains

his state Supreme Court seat.

House broken into, wife 'threatened'

"After I was indicted and before my trial, my home was also broken

into," Diaz tells RAW STORY. "Our door was kicked in and our documents

were rummaged. Televisions, computers and other valuables were not

taken, despite the fact that we were out of town for several days and

the home was left open by the burglars. We could not figure out a

motive for the burglary and reported it to the Biloxi Police

Department. The crime was never solved."

As previously reported in "The Permanent Republican Majority Part II"

in our investigative series, Governor Siegelman's home was broken into

twice during the trial, and his attorney's office was broken into at

least once during the tortuous process of his case.

In another eerie parallel, Mississippi judge John Whitfield, who was

tried along with Diaz and Minor, had his office set on fire. The

Alabama Republican whistleblower, Dana Jill Simpson - who alleges

White House involvement in the Siegelman case - had her home set on

fire and her car run off the road after she came forward.

An FBI agent was also reassigned to Guantanamo Bay, Cuba after he

voiced his concerns about the way Lampton was running his

investigations. Agent Michael Campbell's specialty is forensic

accounting; so it's unclear what his role might be at the prison.

Diaz's wife, Jennifer, was indicted along with her husband. According

to Diaz, the US Attorney's office offered a veiled threat when

discussing a plea agreement, making her an offer she could not refuse.

"Just before our trial, federal prosecutors spoke to Jennifer's

attorney and told him that they were willing to make a deal," Diaz

told me. "They explained that she and I were each facing many years in

federal prison and millions of dollars in fines. They told her that it

would be a shame if both she and I were convicted because they knew

that we had two small children."

"They said that if she would agree to plead guilty to a single count

of tax evasion they would guarantee her that she would serve no time

and would pay no fine," Diaz added. "All she would have to do is fully

cooperate with investigators by telling them everything she knows and

to truthfully testify if they called her to the stand. Not being able

to risk the loss of our children, Jennifer accepted this deal."

Ultimately, Diaz notes, prosecutors did not call Jennifer to testify,

as she was not able to add anything to their case.

Timing of indictments helps elect GOP governor

Diaz's prosecutions - and those of the largest state Democratic donor

and other Democrat- supported judges also seem to be part of a larger

pattern to use flimsy criminal indictments for political gain.

Diaz was indicted three months prior the Mississippi's gubernatorial

elections. Because he'd been appointment by the incumbent Democratic

governor, Republicans used his name as part of a smear campaign to

bolster their candidate, Haley Barbour.

Barbour was the Chairman of the Republican National Committee from

1993 to 1997.

"The indictment was used prominently in the Republican campaign," Diaz

said. "The Haley Barbour campaign used the indictments of Paul Minor

and me to taint Governor Musgrove. Minor had been one of Musgrove's

largest contributors, and I was his appointee to the Supreme Court.

"Minor was also a large contributor to Democratic candidates across

the country," Diaz. "In fact, at the time he was one of John Edwards'

top ten largest contributors. The indictments would also serve to

embarrass Edwards, who was considered at that time to be one of the

most serious challengers to George Bush in the 2004 Presidential

election. A political operative could not have picked a better time to

issue the indictments in order to influence the upcoming elections."

The Interview: Corporate interests target Diaz

Raw Story's Larisa Alexandrovna: Let's start with 2002 and the FBI's

investigation into trial lawyers. What was going on at this time in

the political atmosphere and what, if any, cases were on the docket?

Justice Oliver Diaz, Jr.: In 2002 I was in the second year of an eight-

year term on the Mississippi Supreme Court. A struggle was brewing

over control of the court. In the 2000 election, large amounts of

money were put into Mississippi judicial elections by big business,

tobacco and insurance, with mixed results. I was targeted for defeat

by these groups, who were not able to beat me in the election.

RS: When you say "targeted" by these groups, through what mechanism?

OD: The mechanism used by these groups to target me for defeat was the

U.S. Chamber of Commerce. The U.S. Chamber spent more than a million

dollars in the final two weeks before my election, running television

and radio ads, direct mail, telephone solicitations and leaflets and

flyers. Most of the ads were what you would call negative attack ads

directed at me. They also ran a few ads that praised my opponent.

RS: Your opponent was Judge Keith Starrett, correct?

OD: Yes, Starrett was a state trial court judge.

RS: Judges in Mississippi do not run on a political ticket. But is it

safe to say that before you were judges you were both Republicans in

terms of party affiliation? You were in the state legislature as a

Republican before you became a judge, right?

OD: From 1987 until 1994, I served in the Mississippi House of

Representatives. I was elected as a Republican. However, in 1994 I ran

for a position on the Mississippi Court of Appeals. I was elected that

year and began serving as a non-partisan judge. I have not been

affiliated with a political party since 1994.

RS: So why do you suppose the Democratic voters supported you against

Starrett?

OD: While in the legislature, I often worked across the aisle to reach

consensus. I think that I gained the respect of many Democratic

leaders and groups because of my bipartisan work in the legislature.

One of the many Democrats that I worked with was a State Senator named

Ronnie Musgrove. In 1999, Musgrove was elected governor as a Democrat.

When a vacancy occurred on the Supreme Court Musgrove appointed me to

fill that vacancy. Because of our work together in the legislature, I

think Musgrove was comfortable in appointing me to the court. Having

the support of the Democratic Governor, Democratic legislative leaders

and Democratic groups certainly helped me in my election.

RS: Okay, let's go back to the Chamber of Commerce for a moment.

During the 2000 election they flooded the airwaves to support your

opponent, Keith Starrett. Is that legal?

OD: In Mississippi, corporations and individuals are limited in the

amount of money they can donate to a judicial election campaign, and

the names of all donors must be disclosed. The U.S. Chamber refused to

reveal the source of their funding and claimed that they were not

subject to the funding limits imposed by state law. The state of

Mississippi sued the U.S. Chamber and a judge ruled that the Chamber

violated state law.

RS: What happened next?

OD: The Chamber appealed to the Fifth Circuit Court of Appeals and the

Chamber prevailed. That was how I was targeted during the campaign.

After the campaign, the only way I would be removed from office would

be through death, resignation or if I were convicted of some

impeachable offense.

RS: Before we get into the question of removing you from office, would

you mind briefly explaining what happened with the U.S. Supreme Court

and how the Chamber prevailed?

OD: The Fifth Circuit ruled that the U.S. Chamber did not have to

disclose their donors in Mississippi. In its opinion, the Court

actually stated, "We recognize that the result we reach in this case

may be counterintuitive to a commonsense understanding..." It seems that

the Court anticipated criticism of the decision they issued in this

case, as it was not necessarily a rational or logical decision. The

U.S. Supreme Court declined to review this decision, and so it stood.

RS: I thought Justice Scalia supported states' rights?

OD: Apparently, he can be selective in that interpretation.

Political struggle for the control of the Mississippi Supreme Court

RS: So you say that two years into your eight-year term, "a struggle

was brewing over control of the court." Can you describe the make-up

of the Mississippi Supreme Court in 2002?

OD: The court was evenly split philosophically. At the time, we were

preparing for statewide elections in 2003. We see cases of all kinds,

from routine criminal cases to complex business transactions. We

handle divorce and child custody cases and multi-million dollar

lawsuits against every major corporation. Particularly important at

that time were lawsuits by large groups of people joined together in a

single cause of action.

These types of suits are referred to as class action lawsuits, even

though we don't technically have class action suits in Mississippi.

Business groups were concerned about potentially large verdicts when

these claims were joined together. Remember, Mississippi had just

taken the lead in the multi-billion dollar tobacco litigation, and

other corporations feared the same thing.

[Forty-six states sued several large tobacco companies for the

recovery of Medicare expenses accrued from tobacco-related illnesses,

starting in1994 with Mississippi. The tobacco companies settled the

case in 1998 for $206 billion.]

RS: Right, we reported in "The Permanent Republican Majority - Part

IV" what had gone on in Mississippi, and in "The Permanent Republican

Majority - Part I," what had happened in Alabama with the lawsuits

during the 1990's. We also discussed this type of "stacking the

courts" in Alabama during the 1990s. Do you see similarities?

OD: I think that Alabama is the model that is used by conservative

groups who are interested in stacking the courts. Nothing like this

had ever occurred prior to [former White House deputy chief of staff

to President George W. Bush] Karl Rove's experiment with this in

Alabama. The same thing occurred in Texas under Rove's direction.

RS: Rove was a consultant for Phillip Morris and was instrumental in

keeping Alabama and Texas out of the class-action cases brought by the

other state attorneys general. Alabama was just one of four states

that declined to sue.

OD: I was aware that Alabama and Texas were reluctant to join in the

tobacco litigation. I was not aware of Rove's involvement.

RS: Is stacking the courts common or restricted to a handful of

Southern states?

OD: Today, many states with an elected judiciary find their courts

under attack from big business, insurance and tobacco. This is so

prevalent that it has even made its way into popular culture. This

entire scenario is the plot of John Grisham's latest best-seller,. The

Appeal. I don't think that John Grisham needs any help from me in

selling his books, but I do highly recommend it for anyone who wants

to learn more about this topic in a very entertaining way.

RS: To get back to my question, you're saying this isn't limited to

the Southern states?

OD: Absolutely not. The same thing has happened in Illinois, Ohio,

Michigan and West Virginia. Any state with an elected judiciary is at

risk for this sort of political attack.

A political crusade: FBI targets largest Democratic donor in

Mississippi

RS: So we're in the fall of 2002. Tell us what happens.

OD: In the fall of 2002, press reports began to appear in Mississippi

saying that a federal investigation was under way to examine campaign

loans to judges. Loans to campaigns are a fairly regular thing in

Mississippi politics. Not many people can afford to fund the entire

cost of a large election, and so it is common to seek loans to cover

some of the costs. I was not overly concerned about the investigation,

because I knew that there was nothing out of the ordinary in the way

my campaign was operated and funded. Then my wife and I were contacted

by FBI agents, who said that they were specifically investigating my

campaign and my relationship to one specific attorney, Paul Minor. We

were told that a grand jury was looking into allegations of bribery of

me by Mr. Minor.

RS: How does an investigation typically start?

OD: One of the startling things about my case is the way it began.

Normally, a criminal investigation begins after a crime is committed.

Investigators are sent out to gather evidence and a list of suspects

is drawn up. Evidence will then point to someone who is then

prosecuted for that crime. Sometimes an investigation is begun after a

complaint is made about suspicious activity. In our case neither of

these things occurred. At about this time in 2002, federal

investigators began to look into the financial dealings of large

contributors of the Democratic Party. Paul Minor was the single

largest contributor to the Democratic Party in the state of

Mississippi. Investigators were sent to examine Minor's banking

records and discovered that he had guaranteed loans to several judges.

This became the basis for the bribery allegations. In other words, an

individual was singled out for examination from the federal government

and prosecutors then attempted to make his conduct fit into some

criminal statute. This is not how our system of justice is supposed to

operate.

RS: Just to be clear, what Mr. Minor did in guaranteeing loans to a

judges is not against Mississippi state law, is that correct?

OD: The loan guaranteed by Minor was a campaign loan prior to the

election, not after. All of the proceeds of this loan were used in my

campaign to counter the attacks launched by the U.S. Chamber. This is

all perfectly legal in Mississippi. Mississippi law specifically

provides for loans to campaigns.

RS: And in return, did he get anything that could be seen as quid pro

quo?

OD: Paul Minor had been a friend of mine for years, and he provided a

great deal of help for me in my campaign. In addition to monetary

support, he also provided advice and was involved in campaign

decisions. Because of this relationship, I did not want anyone to be

able to question my participation in cases in which he was involved.

Therefore, in my entire time at the Mississippi Supreme Court, I have

never voted or participated in any way in any case in which Paul

Minor, his firm or his clients were involved. Paul knew that by taking

such an active role in my campaign, I would not participate in his

cases, and he agreed with that decision.

RS: So no crime is committed, but a target is identified for

investigation ahead of time?

OD: Yes. One of the main reasons that I feel that I as an individual

was targeted rather than my conduct was targeted was because there

were actually other judges that I served with who also had campaigns

loans guaranteed by Paul Minor and these judges were not prosecuted.

Specifically, the Chief Justice of the Mississippi Supreme Court,

Edwin Pittman, also had a campaign loan guaranteed by Paul Minor.

The main difference between me and Pittman was that Pittman voted in

all of Minor's cases and even authored opinions that were favorable to

Minor and his clients while I did not participate. Now, I am not

saying that Pittman did anything wrong. However, I could never

understand, and it has never been explained to me, how his conduct and

active participation and favorable rulings were ignored and I was

indicted and prosecuted for bribery and I had never been involved in

Minor's cases.

The only reasonable explanation seems to be that prosecutors were more

interested in specific individuals and not the conduct of an

individual. James Thomas (who has since died) was another judge I

served with who had a campaign loan guaranteed by Minor. Judge Thomas

also participated in Minor's cases and was not prosecuted. I do not

believe, and do not want to be seen as implying, that Thomas did

anything inappropriate, just that under similar circumstances I was

prosecuted and others were not. Federal prosecutors were fully aware

of these other loans but chose not to prosecute them, even though

these judges ruled in Minor's favor in cases before them. Again, I did

not participate in any of Minor's cases and was indicted and tried for

bribery [and eventually exonerated]. The only reasonable explanation

is that prosecutors were more interested in prosecuting particular

individuals.

RS: Now there was an FBI agent at the time of this case working with

Lampton's office who had taken issue with the investigation. What

happened to him when he voices his concerns?

OD: I understand that FBI agent Matthew Campbell, who was originally

assigned to my case, was reassigned to Guantanamo Bay, Cuba after he

raised questions about the investigation.

RS: You were saying about the loan and Mr. Minor...

OD: Mr. Minor had signed as a guarantor on one of my campaign loans. I

knew the accusations of bribery were absurd, because I had never voted

on any cases in which Mr. Minor was involved while I was on the

Supreme Court. However, I was concerned because the investigation was

being conducted by Dunnica Lampton, the Bush appointed U.S. Attorney.

Lampton was also a close personal friend and the former employer of my

opponent in the election for which he was investigating.

RS: US Attorney Dunnica Lampton is a childhood friend of Keith

Starrett, your opponent in the 2000 election. And Starrett employs a

Lampton family member, now and during the investigation and two

trials. What happened to Judge Starrett after he lost the election

against you? When did his career begin in terms of the judiciary?

OD: Starrett's legal career began when he was hired by Dunnica Lampton

as an assistant state prosecutor. Lampton and Starrett were close

personal friends and political allies. After Starrett was defeated in

2000, George Bush appointed him to the federal trial bench. One of the

main speakers at Starrett's investiture ceremony was Dunnica Lampton.

Lampton spoke of his long relationship with Starrett going back to

childhood baseball games.

RS: Right, and he talked about their long friendship...

OD: Another speaker at this ceremony was Judge Henry Wingate, the

trial judge in our case. Wingate referred to Starrett as "a rising

star in the federal judiciary." This speech occurred as our trial was

pending before Wingate. In our minds, this certainly created an

appearance of a conflict of interest on the part of Wingate, who was

publicly praising my opponent as I was standing trial before him.

Wife 'pleads guilty to a crime she didn't commit'

RS: Now, your wife was also indicted. Can you tell us a bit about

that?

OD: The case against Jennifer was even more absurd than the case

against me, because she was indicted simply for her role in my

campaign.

RS: What was your wife's role in your campaign? What were the charges

against her?

OD: Jennifer acted as my campaign manager and was involved in all of

the campaign decisions. The charges against her were the same as the

charges against me: mail fraud and bribery. The absurdity was that

Jennifer did not have any knowledge about any of Minor's cases and

certainly could not influence my decisions, as I did not participate

in any of Minor's cases.

RS: How did your wife deal with the indictment?

OD: Just before our trial, federal prosecutors spoke to Jennifer's

attorney and told him that they were willing to make a deal. They

explained that she and I were each facing many years in federal prison

and millions of dollars in fines. They told her that it would be a

shame if both she and I were convicted, because they knew that we had

two small children. They told her that they were certain that we could

find someone good to raise our children while we were in prison.

They said that if she would agree to plead guilty to a single count of

tax evasion they would guarantee her that she would serve no time and

would pay no fine. This would assure that one parent was left at home

to raise our children. All she would have to do is fully cooperate

with investigators by telling them everything she knew and truthfully

testify if they called her to the stand. Not being able to risk the

loss of our children, Jennifer accepted this deal.

I think it is significant to point out that prosecutors did not call

Jennifer to testify as she was not able to add anything to their case

even though they agreed that she fully cooperated with their

investigation and truthfully provided them with all of the information

that was requested.

RS: Can a wife be made to testify against their husband with the

threat of losing her children? Is this even legal?

OD: This was the deal that was offered. Jennifer was in no position to

argue. The reason she was offered a deal was because the case against

all of us was very weak, and Jennifer's was the weakest. The

prosecutors thought that she might be able to provide them with some

information that could be used against us.

Jennifer could continue to protest her innocence and risk the loss of

our children, or she could plead guilty to a crime she did not commit

and be assured that she would remain at home to care for the children.

As any mother will tell you, that choice was easy. Jennifer did what

she had to do in order to remain at home with our children. She pled

guilty to a crime she did not commit. It was at this point when I

realized just how despicable these prosecutors were and to what

lengths they were willing to go to get a conviction.

The first trial: Diaz is acquitted

RS: What happens during the first trial? What exactly are the charges?

OD: The basic charges were that I had provided an "unfair advantage"

to Minor when he or his clients appeared before the Mississippi

Supreme Court. In other words, prosecutors alleged that Paul Minor

bribed me to rule in his favor because he guaranteed loans to my

campaign. The problem that prosecutors had with this theory was that I

had never voted on a single case where Paul Minor, his law firm, or

his clients were involved.

RS: How they were able to secure an indictment?

OD: Despite the fact that I had not been involved in any of Mr.

Minor's cases, prosecutors advised the grand jury that I had provided

an "unfair advantage" to Minor and his clients, and I was indicted.

RS: But don't they have to illustrate this? I mean they can't just say

so, right?

OD: A judge is not involved in the grand jury process other than

initially swearing in the grand jury. Grand jury proceedings are

confidential. Criminal defendants do not even know the names of the

grand jury members. Prosecutors, witnesses and grand jury members are

the only people present in the grand jury room, along with a court

reporter. I was provided with transcripts of grand jury testimony of

some of the witnesses prior to my trial.

I was able to see that government agents were able to inform the grand

jury that I provided an "unfair advantage" to Minor without anything

to support that statement. The agent would say that he examined

banking records and saw that Minor guaranteed a loan to my campaign

and then "Diaz provided an unfair advantage to Minor in cases before

him at the Supreme Court." In all of the transcripts that I saw, no

one challenged these statements or asked for specific examples of how

an "unfair advantage" was provided. Grand jurors are average citizens

and do not necessarily have any legal training. I'm sure they were

more than willing to accept the word of a federal agent.

RS: With regard to the government agents, you are speaking of an FBI

agent or agents? Agent Campbell was complaining about the US

Attorney's handling of the case and in retaliation was reassigned to

Gitmo. Someone else was then assigned to replace him?

OD: Yes, I am referring to the grand jury testimony of FBI agent Kevin

Rust. He was appointed to be the lead agent on my case after Campbell

was dismissed. Rust actually donated money to my opponent, Keith

Starrett, when he ran against me.

Of all of the available FBI agents to be assigned to my case, Lampton

selected the one who had taken an active role to defeat me during the

election. Despite this serious conflict of interest, Rust accepted the

assignment and actually testified before the grand jury on seven

separate occasions. Not once did he mention to the grand jury that he

supported my opponent in the election for which he was investigating.

The governor's race: Former chairman of Republican Party takes

Mississippi after indictments

RS: The gubernatorial election was right around the corner, too, in

November of 2003. Do you think your indictment had anything to do with

this election?

OD: The Mississippi gubernatorial elections were scheduled for

November 2003. The indictments in my case were handed down July 25,

2003, just over three months prior to the election. The indictment was

used prominently in the Republican campaign.

I had been appointed to the Supreme Court in March 2000 by incumbent

Democratic Governor Ronnie Musgrove. The Haley Barbour campaign used

the indictments of Paul Minor and me to taint Governor Musgrove. Minor

had been one of Musgrove's largest contributors, and I was his

appointee to the Supreme Court.

[barbour was chairman of the Republican National Committee from 1993

to 1997.]

Minor was also a large contributor to Democratic candidates across the

country. In fact, at the time he was one of John Edwards' top ten

largest contributors. The indictments would also serve to embarrass

Edwards, who was considered at that time to be one of the most serious

challengers to George Bush in the 2004 Presidential election. A

political operative could not have picked a better time to issue the

indictments in order to influence the upcoming elections.

RS: Any particular operative in mind?

OD: I am not suggesting that any particular political operative was

involved in the timing of my indictment, only that the timing was

politically beneficial to the Republican Party.

RS: So now we go to trial...

OD: During a trial that lasted for more than three months, prosecutors

argued that I had provided "unfair advantage" to Mr. Minor and that I

should therefore be convicted. Fortunately, the jury was able to see

that the prosecutors were never able to point to any case I had ruled

on involving Mr. Minor or his clients. I think the jury was able to

logically reason that a judge cannot provide an "unfair advantage" to

a lawyer when the judge is not involved in the case. After this

lengthy trial I was fully acquitted.

RS: How can a trial go on for months without evidence being shown?

What about the judge in the case? Why did he/she not put a stop to

this?

OD: There was lots of evidence presented at the trial. A large number

of witnesses were called. You have to remember that this was a trial

of four separate defendants. This was not a conspiracy trial. That

means that evidence had to be presented against each individual

defendant. We were tried together even though we were not accused of

the same crimes. The only link between us was the fact that Paul Minor

had guaranteed campaign loans for us. A trial judge has a great deal

of discretion in the conducting of a trial.

RS: So they tried this as a racketeering case?

OD: Paul Minor was charged with RICO violations but the rest of us

were not.

RS: Who was the trial judge?

OD: The trial judge in this case was Henry Wingate. Wingate was

appointed by Ronald Reagan and is known as one of the few black

Republicans in Mississippi. Wingate is notorious for his failure to

make timely rulings and his cases tend to drag on for years. He took

several motions in our case under advisement for over a year. Wingate

rarely begins court on time. Lawyers, litigants and jurors are often

left waiting for him to appear in court. It is not unusual for him to

arrive over an hour late. Based upon his conduct, I do not think that

Wingate is concerned about the waste of taxpayer money.

The second trial: Diaz is acquitted again

RS: What happens during the second trial? How are the charges

different?

OD: [After the first trial,] in August of 2005 I was fully acquitted.

However, three days after my acquittal, Lampton unsealed another

indictment against me. This time the charges were tax evasion.

The new prosecution theory was that if I had not been bribed then I

did not properly disclose the campaign loan proceeds guaranteed by Mr.

Minor on my tax returns. This charge too was a stretch. The problem

the prosecutors had was that all of the loan proceeds were indeed

spent on my election campaign. It was difficult for prosecutors to

argue that campaign loans should have been listed as personal income.

If they were to prevail on this theory then every politician in this

country could be indicted for tax evasion. Anyway, I went to trial a

second time in March 2006. After a week-long trial, I was again fully

acquitted after the jury deliberated for about fifteen minutes.

RS: The irony here is that in our reporting on Lampton, we had found

that he did not properly disclose his campaign loan proceeds and that

he was in fact under FEC investigation at the time he was appointed to

the US Attorney's office. Had you heard about this? (See "Part IV -

How Bush pick helped prosecute top Democrat-backed judge.")

OD: Prior to our trial I also did some research into Lampton. I saw

that he was fined by the FEC for not properly reporting his campaign

contributions. I also noticed that he did not disclose the FEC fine

and investigation to the United States Senate when he was being

confirmed for his position as U.S. Attorney. Some would consider this

to be a lie of omission. The irony did not escape me.

RS: Now you were not the only judge indicted. Tell us about the other

judges. Were they also acquitted and indicted again as you were?

OD: Two other judges were tried along with us. Wes Teel and John

Whitfield were trial judges who had also had campaign loans guaranteed

by Minor. When the jury verdict was returned, I was fully acquitted

and Minor, Teel and Whitfield were acquitted on some charges. The jury

could not reach a verdict on some of the charges against these three,

and Lampton decided that he would re-try them on these charges. They

went to trial a second time about eighteen months later.

RS: Who was the judge for their second trial?

OD: The same judge, Wingate, presided over Minor, Teel and Whitfield's

second trial. In my second trial I had a different judge, Walter Gex,

who I think conducted a very fair trial.

RS: In Alabama, we see the same thing happen to former Governor Don

Siegelman. He is indicted, goes to trial and on the first day of trial

the judge dismisses the charges and holds the prosecutors in contempt.

Then right before he gets ready to run again, he is again indicted.

OD: The difference here is that Governor Siegelman had a trial judge

who was willing to question the government in his first trial. That

did not happen in our case. My experience has been that as a former

federal prosecutor, Wingate rarely criticizes the government.

RS: Is it common for prosecutors to keep indicting someone until they

finally get a conviction?

OD: Criminal defense lawyers will tell you that once the federal

governments sets its sights on convicting someone it is similar to the

killing robot in the "Terminator" movies. It has no compassion and

shows no mercy. It doesn't care if you have children or you are sick.

All of its energy and resources are focused on one thing and that is

conviction.

In fact, statistics show that greater than ninety-eight percent of

everyone indicted by the federal government is ultimately convicted or

pleads guilty. The odds of being twice acquitted as I was are like

winning the power ball lottery. Most people simply do not have the

resources to fight back when the federal government chooses to

prosecute.

RS: What would have happened if you were convicted and your seat on

the Mississippi court opened up? Is there a special election held in

such a case or does the state governor appoint a replacement?

OD: Had I been removed from office, Governor Haley Barbour would have

the opportunity to appoint my replacement. He would have complete

discretion to appoint anyone he wanted who was otherwise qualified to

hold the office.

RS: Were there any rumors as to whom he may have appointed? Did you

have a theory as to whom he would have appointed?

OD: If there was speculation at the time, no one shared it with me.

Starrett would have been a leading candidate, I'm sure.

Bush Department of Justice gets involved

RS: What was the role of the Justice Department's Public Integrity

Section in your case?

OD: The DOJ in Washington played a key role in my prosecution. As I

understand it, any time a high ranking elected official is prosecuted,

it must be approved in Washington. In my case, the public integrity

section in Washington assigned a full-time attorney to my case. This

attorney actually acted as a lead trial attorney during my trial.

RS: Was the US Attorney there at the trial at all? I was told by a

spokesperson that Lampton had recused himself. I was, however, unable

to get any paperwork fto illustrate this and could find no evidence of

Lampton having recused himself. He appears on press releases and in

press conferences as well. So if Lampton did not recuse himself, which

it appears he did not, then why did a Washington attorney have to take

the lead in the case?

OD: You didn't find the paperwork because Lampton did not recuse

himself. Lampton made several statements to the press that he was not

involved in the case. The DOJ continues to make this false statement.

RS: In my recent conversation with a spokesperson from the Justice

Department, I was told that she had spoken to the other attorneys on

your cases and was assured that Lampton had recused himself. When I

asked for any documentation to confirm this, she told me that she

would get back to me. Lampton has also said he had recused himself,

but later changed his statement.

OD: When forced to say so on the record, prosecutors admitted that

Lampton did not recuse himself. I understand that there is a very

detailed procedure to be followed when a U.S. Attorney recuses himself

from a case. This includes the filling out of several documents that

are sent to the DOJ in Washington. Lampton did not do this in our

case.

The reason this is important is because of the serious conflicts of

interest that Lampton had in prosecuting our case. Anyone looking at

all of these conflicts would understand that Lampton could not fairly

participate in this prosecution.

RS: We illustrate those conflicts in a graphic to better help people

understand. In terms of the non-recusal recusal, was Lampton indeed

participating in the cases?

OD: Lampton tried to dodge the questions of conflict by saying that he

was not participating. This was simply a lie. Lampton questioned

witnesses in the grand jury and signed the indictment. He issued press

releases trumpeting the charges against us. His office personnel and

resources were devoted to the prosecution. He regularly attended court

and observed the proceedings. Again, the irony was that we were being

prosecuted by Lampton for perceived conflicts of interest, and Lampton

himself was not even attempting to live up to the standard for which

he was prosecuting.

RS: Noel Hillman, then-head of Public Integrity office at the Justice

Department took a particular interest in your case as well. Is that

right?

OD: Noel Hillman was intimately involved. He actually signed the

indictment in my case. His office supplied the Washington attorney to

assist in my prosecution.

Was Rove involved?

RS: You touched on Karl Rove before. Is Karl Rove related to your

case?

OD: It is widely known that Karl Rove is greatly responsible for

engineering the takeover of the Alabama Supreme Court by the

Republican Party. Rove's influence stretched into Mississippi through,

among others, the Choctaw Indians and their casinos in Mississippi,

who were clients of Jack Abramoff.

RS: Why would the Indian casinos be opposed to you?

OD: I don't know that the Choctaws were opposed to me, but they

apparently did support my opponent.

RS: Is it really the Indian casinos or are they a front for other

interests who use the unregulated casinos for other purposes?

OD: Again, I don't know what motivated them to support my opponent.

RS: What else makes you think Rove would have been involved?

OD: Before my trial, Dunnica Lampton, the U.S. Attorney prosecuting my

case, was placed on the list of U.S. Attorneys to be fired by the Bush

Administration. After he pushed my case to trial, Lampton's name was

removed. Rove, as you are aware, has been attributed to have been

involved in deciding who would be on the list to be fired.

Rove has also been linked to the Public Integrity Section in the

Department of Justice. This is the section in the Department

responsible for taking the lead in the prosecution of Alabama Governor

Don Siegelman. The Public Integrity Section was also involved in my

prosecution.

RS: I have always said the real scandal is not who was fired, but who

was NOT fired. That seems to be the case with the two US Attorneys in

Alabama, Leura Canary and Alice Martin, and it would appear to be the

case in the Southern District of Mississippi with Lampton.

The official public version is that the fired US Attorneys were not

aggressively pursuing voter fraud cases. But in looking at your case

and that of Don Siegelman, what begins to emerge is that the fired US

Attorneys were not using their positions aggressively enough to find a

reason to indict political opponents. What are your thoughts on the US

Attorney scandal?

US Attorneys who survived firing list targeted political opponents

OD: There has been a good deal of focus on the fact that several U.S.

Attorneys were fired because they refused to participate in what they

considered to be political prosecutions. However, there has not been

much focus on the flip side of this proposition. In other words, were

there U.S. Attorneys who were not fired because they did in fact

engage in political prosecutions? Did some U.S. Attorneys actually

bring political indictments? Have politicians who were seen as opposed

to the incumbent political party's agenda in fact been prosecuted for

political reasons? Do we now have political prisoners in the United

States?

These questions are much more subversive than the original question of

whether some U.S. Attorneys refused to engage in political

prosecutions. If any of these questions are answered in the

affirmative then it means that our entire system of justice has been

compromised for political reasons. Unfortunately, the evidence that

has come to light since this scandal began seems to indicate that this

is exactly what has occurred.

RS: What about this phrase now in use, "selective prosecution?"

Because to me that implies that two parties are equally guilty or are

alleged to be as guilty, but only one party is being prosecuted. In

your case, and the case of Siegelman, the more appropriate phrase

seems to be "fraudulent prosecution" or "political prosecution," and

that is in itself a criminal act, is it not? Whereas "selective

prosecution" is not necessarily criminal per se. Is that the case?

OD: That is true. Paul Minor repeatedly pointed out that others who

had guaranteed loans to judges were not prosecuted and he was. I have

pointed out that other judges who had campaign loans guaranteed were

not prosecuted as I was. However, I also state that I do not believe

that any of these people have done anything illegal. Paul Minor and I

were not "selectively prosecuted." We were however "politically

prosecuted." There is a tremendous difference.

RS: What has happened to Minor since his conviction?

OD: During our trial I was fully acquitted and Minor was acquitted of

some charges and the jury could not reach a decision on some of the

charges. He was tried again in 2007 and was convicted. In some very

bizarre rulings, the trial judge in his case actually ruled exactly

opposite of his rulings in our first trial. The judge went so far as

to instruct the jury that they could convict Minor even if they found

that the rulings of a judge in his case were the correct rulings.

In other words, the trial judge basically instructed the jury that the

simple fact that Minor guaranteed loans to a judge's campaign was

enough to convict him of bribery. Because there was never a question

as to the existence of loans, this instruction completely took away

Minor's defense that there were loans but that there was never a "quid

pro quo" or something done by the judge in exchange for the loan.

Without a defense, it was easy for the jury to convict.

RS: In Alabama, we found that Judge Mark Fuller, according to

whistleblower Dana Jill Simpson, was allegedly discussed by Alabama

Republican operative Bill Canary prior to even getting the case.

According to Simpson's testimony, Canary said "Fuller would hang

Siegelman." George W. Bush then appoints Fuller to the bench and

Fuller gets the Siegelman case. He goes on to make a series of bizarre

rulings and sits on the trial transcript for 30 months, making the

appeal process a problem for the Siegelman defense team. As you likely

know, Siegelman was not allowed out of jail during the appeal process.

Once a few reporters, including myself, began to investigate this

story, Siegelman was finally released on an appeal bond. What can you

tell us about the judge on your case?

OD: As I stated before, the trial judge was a Reagan appointee named

Henry Wingate. Wingate's delays and inability to make decisions are

legendary among Mississippi lawyers. During the trial, Wingate was

constantly being publicly promoted as a possible Bush nominee to the

Fifth Circuit Court of Appeals. After the trial Wingate was again

passed over for promotion. Like what happened to Governor Siegelman,

it has been a year since his trial, and Minor's transcript is still

not complete.

RS: What happened next?

OD: Upon his conviction, Minor was immediately shackled and manacled

and taken into custody. Just like Siegelman, he was not allowed to

remain free pending appeal.

RS: Is this normal in a white-collar crime case? That is to say, for

the convicted party to be manacled, shackled and taken into custody

without appeal?

OD: This is extremely unusual in cases such as this. Normally, a

person convicted of a crime that is not a danger to society and is not

a flight risk is given an opportunity put his affairs in order before

reporting to prison. It is also common to allow them to remain free

pending appeal. Neither of these things were allowed in this case, and

Minor has been in custody since his conviction.

RS: I understand that Minor's wife is unwell, that she is terribly ill

with cancer, is that correct? So her husband had not been given the

ability to even see her?

OD: This has been particularly cruel in Minor's case, given the fact

that his wife was battling cancer during his trial. Because he is

being held in a facility that is a four or five hour drive away from

his home, and due to her deteriorating physical condition, Ms. Minor

is not able to visit her husband. He has not been able to assist in

her care and treatment or been allowed to comfort her during her

ordeal. Unfortunately, her prognosis is not good at this time.

RS: Minor's sentence was rather extreme in addition to this other,

more personal stress, was it not?

OD: Minor was sentenced to eleven years in prison and fined over four

million dollars. The fine was more than ten times the fine recommended

by the government and appeared to be vindictive in nature. The prison

sentence was well above what should have been imposed under the

federal sentencing guidelines.

RS: The same thing occurred in the Siegelman case, prompting what is

now over 50 former state attorneys general - of both parties - to

demand an investigation. Have you been in contact with any of these

attorneys general about your case?

OD: Since our trial, we have received a great deal of national

publicity. We have learned of others who have been prosecuted under

similar circumstances. I have recently been contacted by Congressional

investigators who are interested in pursuing a more detailed

investigation of this case. I will fully cooperate in that

investigation.

RS: What of the other judges targeted along with you? How have they

fared?

OD: The two other judges who were convicted along with Minor have not

fared well either. Judge Wes Teel, who also had a campaign loan

guaranteed by Minor, was sentenced to five years in prison. Judge

Teel's wife is also ill and requires constant medical attention. He

was required to report to prison in December 2007 on his thirtieth

wedding anniversary. On his first day in custody, he suffered a major

heart attack. His family was not notified of this event for more than

a week. He is being treated in a federal prison facility.

Violent criminal acts of intimidation?

OD: Judge John Whitfield was sentenced to eight years in custody. He

was allowed to report to a medical facility because of chronic health

problems. Judge Whitfield was forced to leave behind his minor son,

who is now without a parent, as his mother died prior to his

conviction.

RS: Judge Whitfield's office was set on fire and ruled an arson case

by local authorities. The US Attorney's office inserted themselves

into the arson investigation. Is that normal, or legal?

OD: Before our trial began, Judge Whitfield's office was burned. The

computers and files that survived were seized and examined by

authorities. Whitfield protested the fact that prosecutors now had

access to his trial strategy. To this day, the arson case has not been

solved.

RS: In Alabama, we saw something similar while investigating

Siegelman's case. His house was broken into twice during his trial,

and his attorney had his office broken into at least once. The

Republican whistleblower Simpson's house burned down and she was

driven off the road. As far as I know, none of these crimes have been

solved. Do you think it a possibility that these crimes are not random

and unrelated?

OD: In another eerie similarity, after I was indicted and before my

trial, my home was also broken into. Our door was kicked in and our

documents were rummaged. Televisions, computers and other valuables

were not taken, despite the fact that we were out of town for several

days and the home was left open by the burglars. We could not figure

out a motive for the burglary and reported it to the Biloxi Police

Department. The crime was never solved.

RS: If a Governor and a state Supreme Court Justice can be targeted

like this and the country is largely unaware, how can we be sure - the

public that is - that people with less visibility are not being

targeted in this same way for their political work and views?

OD: In order for our legal system to work, it must remain free from

political influences. In a speech to federal prosecutors, on April 1,

1940, former Attorney General of the United States, Robert H. Jackson

said:

"If the prosecutor is obliged to choose his cases, it follows that he

can choose his defendants. Therein is the most dangerous power of the

prosecutor: that he will pick people that he thinks he should get,

rather than pick cases that need to be prosecuted. With the law books

filled with a great assortment of crimes, a prosecutor stands a fair

chance of finding at least a technical violation of some act on the

part of almost anyone. In such a case, it is not a question of

discovering the commission of a crime and then looking for the man who

has committed it, it is a question of picking the man and then

searching the law books, or putting investigators to work, to pin some

offense on him. It is in this realm--in which the prosecutor picks some

person whom he dislikes or desires to embarrass, or selects some group

of unpopular persons and then looks for an offense, that the greatest

danger of abuse of prosecuting power lies. It is here that law

enforcement becomes personal, and the real crime becomes that of being

unpopular with the predominant or governing group, being attached to

the wrong political views, or being personally obnoxious to or in the

way of the prosecutor himself."

My fear is that Jackson's warning has come to fruition during this

administration. I do not think that we will learn the full extent of

the abuse that has occurred until a new administration takes over.

Until then, I think that there is evidence that political prosecutions

have occurred in the United States during this administration.

Can Congress redress these cases?

RS: But if this is in fact what is happening in our legal system, who

is there to turn to? I am always asked by people, "what can we do?" I

don't have an answer. Do you have any suggestions?

OD: Unfortunately, I do not think we are going to get any answers as

long as the current administration is in office. I think the only way

we will see any action taken to correct the injustices that have been

done will be if we insist that the next administration conduct a full

investigation into these abuses.

RS: But if we - the public - have to wait for a new administration,

then what does that say about Congress?

OD: I understand the realities facing the current Congress. Democrats

have a razor thin majority in the Senate and a narrow majority in the

House. As long as the Bush administration continues to block any

investigation Congress cannot do much.

RS: Thank you Justice Diaz for your time.

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