Far be it for us to defend Attorney General Alberto Gonzales, but when Rep. Artur Davis, D-Birmingham, grilled the top Justice Department official last week, the congressman got several facts wrong in his questions.

In particular, Davis asked several questions of Gonzales regarding two criminal cases brought against former Alabama Gov. Don Siegelman, Davis insinuating that the cases had been political prosecutions. While the Justice Department under the Bush Adminsitration has conspicuously prosecuted far more Democrats than Republicans, Davis might be confusing correlation with causation.

During the congressional hearing, Davis said that the first case against Siegelman was dismissed by the district judge before the case went to trial.

Indeed, the case was dismissed by U.S. District Judge U.W. Clemon, but not before the trial began. In fact, Clemon made sure to seat the jury before dismissing the case, and by doing so he precluded the prosecution from appealing his decision.

Davis: “Thirty-four-count indictment. Thirty-two counts dismissed.”

The superceding indictment against Siegelman, Richard Scrushy, Paul Hamrick and Mack Roberts consisted of 30 counts among all three defendants. The jury found Siegelman guilty on seven counts — one conspiracy, one bribery, four counts of mail fraud and one obstruction of justice.

Davis: “Evidence of juror misconduct based on emails that were obtained. The U.S. Attorney’s office, who prosecuted the case, declined to investigate the juror misconduct and indeed sought to exclude the emails from even being heard.”

The supposed emails Davis refers to were mailed anonymously to Scrushy and Siegelman’s lawyers. There was no return address and ultimately the defense admitted in court hearings that it did not have sufficient evidence to establish the authenticity of the emails. The evidence of juror misconduct was of negligible value, at best.

While grilling Gonzales, Davis missed an important point about the emails in question. There are two possibilities: Either the emails are authentic and they were stolen from the juror(s) or the emails were fabrications.

If the emails were real and they were stolen from the jurors, then such a search and seizure could ultimately lead to what the law calls “fruit of a poisoned tree.”

Davis: “Would you expect the U.S. Attorney’s Office that had evidence of jury misconduct to investigate the misconduct or to try to exclude it from being heard at evidentiary hearing?”

As a former assistant U.S. Attorney himself, Davis should know better.

The first option that Davis postulates was not available to the prosecutors in the case, as the rules of the Middle District of Alabama prohibited both sides from having contact with the jurors, even after the verdict.

Instead of authenticating the emails, the defense argued before U.S. District Judge Mark Fuller that the court should subpoena the Internet records of the jurors to see if the emails were real. In essence, the defense wished to put the jurors on trial and pry into their private lives for a fishing expedition.

Fuller denied the defense’s request. However, he did hold an inquiry, in which he asked the jurors separately if they had knowledge of any such emails or if they had improper contact with other jurors outside of the deliberations. None of the jurors admitted to or confessed knowledge of any such emails or text messages.

No matter if Davis was fair to Gonzales or just trying to score points, Siegelman is now using the spectacle to wage a last-minute public relations campaign, enlisting Fred Shuttlesworth to help him. In an email sent out last week to supporters, Siegelman thanked Davis for putting Gonzales on the hot seat.

“Rev Fred L. Shuttlesworth and I believe this is the first step in correcting the many injustices that have not only been perpetrated against me but also our country,” Siegelman wrote.

Judge Fuller has set a June 26 sentencing date for Siegelman and Scrushy.

— Kyle Whitmire