article by Scott Horton
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Collateral Damage Justice in Mississippi
Former Mississippi Supreme Court Justice
Oliver E. Diaz
Republican Judge Says Bush DOJ Targeted Him
Mississippi Supreme Court Justice Oliver Diaz 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 U.S. Attorney, Dunnica Lampton, brought charges of bribery against Diaz, Minor and two other Mississippi judges. Diaz was acquitted of all those charges. Within days of his acquittal, Diaz was indicted for a second time, and again acquitted.
“After I was indicted and before my trial, my home was also broken into,” recalls Diaz. “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.”
There is now substantial evidence that Judge Diaz’s prosecutions will shortly be exposed as being politically motivated and directed. In any event it is clear that they were designed to, and did, have a key role in influencing elections in Mississippi for the benefit of the Republican Party.
.Justice Diaz was charged and acquitted twice in federal court. After reviewing the Diaz case in some detail, it is clear that no independent prosecutor would ever have brought these charges, that the prosecution was inspired and driven by political appointees in the Bush Administration working together with Diaz’s political opponents in Mississippi, and that the prosecutions served a manifestly partisan, and inherently corrupt, political agenda.
But to understand the Diaz prosecution, it’s essential to start in Washington, with the man widely viewed as the most powerful Mississippian in the nation’s capital. In 2002 Haley Barbour, one of the key figures in recent Republican party history, told friends and supporters that he had decided to return to Mississippi and seek to capture the Jackson statehouse for the G.O.P. in 2003. Under Barbour’s leadership, the G.O.P. captured both houses of Congress—a red-letter event since the G.O.P. had not controlled the House of Representatives for forty years. Along with Newt Gingrich, Barbour was one of the architects of the new Republican majority that wielded great influence in Congress even during the Clinton years, and emerged as a real powerhouse after Bush brought the G.O.P. back into the White House in 2001.
Barbour ran the G.O.P. as its chair from 1993-97. But on the side, lobbying work was his passion and he quickly became a fixture of the K Street community. In 1991 he founded Barbour Griffith & Rogers LLC, (BGR) which Fortune magazine labeled the most powerful lobbying firm in the United States in an article run in 2001. While recently profiled here in connection with the firm’s representation of wannabe Iraqi strongman Ayad Allawi, BGR is best known as the lobbyist of choice for the tobacco industry—in 1997 alone, it took in $1.7 million from tobacco sources.
If the tobacco industry had a principal adversary in the eighties and nineties, it might have been Michael Moore—not the documentary film producer, but the attorney general of Mississippi. While serving from 1988-2004, he brought the state into litigation against big tobacco in a major way. The state was represented by Dickie Scruggs and a group of trial lawyers based in the Gulf Coast area. In 1997, Moore settled Mississippi’s claims in the tobacco litigation, leading to a plan for tobacco companies to pay Mississippi about $4 billion over the next quarter century. Scruggs and dozens of other trial lawyers who funded the case, split $1.4 billion in attorney fees from the companies.
The settlement made a number of lawyers in south Mississippi profoundly wealthy. Paul Minor was one of these men. They were, for reasons that should be obvious, by and large supporters of the Mississippi Democratic Party, its attorney general, Michael Moore, and governor Ronnie Musgrove. The trial lawyers were a core constituency of the Democratic Party of Mississippi before 1997. But with the settlement money that came their way during that year, they emerged as the party’s treasury. Moreover, the south Mississippi trial bar was closely tied to the Democratic administration in Jackson, providing the key pool for the recruitment of judges and appointed and elected officials. If the Republicans had wanted to deliver an incapacitating blow to their political opposition, there is no question how it could be delivered: by going after the south Mississippi trial bar that funded Democratic campaigns and supplied key Democratic candidates.
As the fall of 2002 approached, and thoughts began to turn to the looming election, something curious emerged. It was learned that FBI agents were busy all over the southern part of the state looking at the dealings of prominent Mississippi trial lawyers. Investigators were examining money given by trial lawyers to judges as loans and campaign contributions. They were also reviewing the judicial appointments of Governor Musgrove, with a focus on anything that involved south Mississippi trial lawyers. In the coming election it appeared that large sums of money from the business community gushed through the Law Enforcement Alliance of America and on to the coffers of Republican candidates for office and G.O.P.-favored judicial candidates. Another key source of campaign money had ties to the casino gambling interests represented by Jack Abramoff. Yet no investigative or prosecutorial resources were being channeled into an examination of these very shadowy campaign funding processes.
On July 25, 2003—ninety days before the gubernatorial election between Musgrove and Barbour—the U.S. Attorney in Jackson, Dunn Lampton, secured indictments of Supreme Court Justice Oliver Diaz, his ex-wife Jennifer, Chancery Judge Wes Teel, former Circuit Judge Whitfield, and attorney Paul Minor. The accusations revolved around loans made to the judges and claims that they were corruptly influenced in their decisions. The indictments were trumpeted very loudly in the Mississippi media by U.S. Attorney Lampton, and played a focal role in the election campaign of Haley Barbour. The G.O.P. campaign used reports about the indictments and criminal investigations very prominently in print and broadcast media.
Noel Hillman, the head of the Public Integrity Section, whose focal role in the Siegelman prosecution was portrayed here, also occupied the central role in these cases. His presence helped develop media coverage for the cases. Hillman, a political protégé of Michael Chertoff, was touted as a “professional prosecutor,” and his involvement was used to show that the cases were not politically motivated. And as the case developed it became apparent that Hillman had taken control of it. Indeed, during the trial, U.S. Attorney Lampton suggested that he had “recused” himself and that the case was being managed by lawyers from Washington. It appears that this “recusal” was at least as illusory as Leura Canary’s in Montgomery, however. When the point was pushed, Lampton clarified that he had not recused himself, but Peter Ainsworth, the Public Integrity trial attorney who sat as first chair in the trial, told the court that the case was being carried by Washington rather than the Jackson U.S. Attorney’s office.
Most lawyers I spoke with said they were mystified by the Government’s decision to go after Diaz. “I don’t get it,” said one, “the bottom line is that Diaz never participated in any cases in which the loan would have made a difference. He recused himself from all the cases.” Diaz was represented up to the indictment by former U.S. Attorney Brad Pigott, and afterwards by Rob McDuff. Pigott expressed his amazement that the case was being pressed even after investigators had established that Diaz did not participate in Minor’s cases. He couldn’t understand why his client was being charged. Pigott met with Noel Hillman on one of his visits to Jackson in 2004, before the indictment was announced, trying to dissuade him from proceeding. Pigott describes Hillman as being resolute and indifferent to the points which ultimately controlled the case in the mind of the jury. But it could be that Hillman had something else on his mind. These events line up with Hillman’s pursuit of a judicial appointment and frequent interaction with the White House in connection with his application.
The First Target: Oliver E. Diaz, Jr.
A graduate of both the University of South Alabama and the University of Mississippi School of Law, Oliver E. Diaz was elected as a Republican to the Mississippi House of Representatives, serving from 1988 to 1994. During this period he also served as City Attorney for D’Iberville, Mississippi. Later Diaz was elected in a non-partisan contest to Mississippi’s intermediate appellate court. While a Republican, Diaz states that he entered the Mississippi legislature in the same class with Senator Ronnie Musgrove. The two soon became good friends, and their philosophies about life and the law showed they had more in common than the party labels reflected. Diaz was appointed to fill an unexpired term on the Mississippi Supreme Court by Musgrove in March 2000.
Mississippi lawyers describe Diaz as a respected judge who was, despite his Republican Party affiliation, viewed as more pro-plaintiff than most. He hails from the Gulf Coast region of Mississippi and has close connections with the successful plaintiff’s bar centered there. After being appointed to the Supreme Court by a Democratic governor, he had to mount an expensive campaign for election to the court in his own right. He sought financial support for the campaign. This led to Diaz’s financial dealings with the Democratic Party’s principal contributor and fundraiser in Mississippi, Paul Minor. With financial support from Minor and other sources—largely from the trial lawyers of Mississippi—Justice Diaz was elected to an 8-year Supreme Court term in 2002.
The charges eventually brought by U.S. Attorney Dunn Lampton accused Diaz, along with Minor and two other Mississippi judges, of bribery and mail fraud crimes. Specifically, Diaz was accused of accepting loans from Minor with the understanding that Diaz would influence a libel case pending against Minor’s father, the celebrated Louisiana and Mississippi journalist Bill Minor. Diaz was also accused of giving Minor an unfair advantage in cases in which he was involved.
From the start, however, local federal prosecutors raised questions about the legitimacy of the case. Diaz never actually participated in the deliberation or resolution of any case involving Paul Minor either directly or in which Minor was counsel. Diaz did participate in the decision of the case involving Minor’s father, which was resolved in a unanimous ruling by the Court. And at no point were any of Diaz’s fellow judges interviewed about their knowledge of impropriety on his or Minor’s part. Had they been, the interviewer would have learned that Diaz did nothing to attempt to influence the court or his fellow judges about the case.
However, a number of aspects of the investigation and prosecution of Diaz reflect serious irregularity. In the Supreme Court election, Diaz had faced stiff opposition from a Mississippi trial judge named Keith Starrett, who had been backed by G.O.P. interests. Starrett’s mentor and friend, who took a deep interest in his election campaign, was none other that U.S. Attorney Dunn Lampton, and Starrett’s law secretary was Donna Lampton, a close relative of the prosecutor. So from a distance, the investigation and targeting of Diaz looked suspiciously like payback for an unanticipated election defeat. Moreover, the investigation had proceeded as an inquiry into just who financed the judges supported by the Democrats, and how. The Republicans appeared to be astonished at their poor showing in many of these races, into which large sums of money had flowed from the business community. There was, it seems, a strong interest in shutting off the flow of cash to the political opposition to better their electoral odds.
The most amazing disclosure to come out post-trial goes to FBI agent Kevin Rust. He had managed the inquiry into Diaz, put the case together, testified before the grand jury, and sat through the trial. Yet an examination of campaign finance records similarly links Rust to the political campaign of Diaz’s opponent, Keith Starrett. Under applicable ethics rules, neither Rust nor Lampton should have participated in any way in the case. Yet it appears that they built and propelled it. Was it payback for the election defeat of their friend Keith Starrett, now a federal judge?
The Acquittal, a Second Indictment, a Second Acquittal
The jury did not think much of the charges and evidence against Diaz. He was acquitted on all charges in 2005. But no sooner was the jury’s verdict returned, than Lampton unsealed another indictment of Diaz: on income tax charges. That case went to trial and resulted in a second acquittal.
The Diaz case reflects another astonishing example of highly partisan justice–timed, presented and calculated to boost the electoral prospects of Haley Barbour. Diaz was acquitted twice, but the major objective of the prosecution—the election of Haley Barbour—was achieved. Barbour become governor, ousting Musgrove. As November 2007 approaches, Mississippians find Barbour seeking a second term.
One of the striking aspects of the case is the extremely heavy hand of Noel Hillman, who personally monitored and managed the case. In the past the presence of Public Integrity was taken as a guarantor of “no politics,” but in this case in Mississippi, like the Siegelman case in Alabama, Hillman’s involvement amounted to “politics 24/7.”
Most clearly, the case was an example of discriminatory prosecution. An investigation occurred which was directed with laser-like precision against the major donors of the Democratic party. No comparable investigation occurred that examined Republican party funding and campaign operations. The message that the prosecutors–Hillman should be singled out–delivered is simple: those who fund Democrats will be targeted and fly-specked; those who fund Republicans have nothing to worry about.
The prosecution served a double function. Democrats were discredited and humiliated, during an election cycle, for the benefit of their political opponents. In addition to this, their campaign resources were dried up so that the Republicans secured a further unfair advantage in future elections. These tactics are a pernicious corruption of the political process by politically appointed Justice Department officials posing as its guardians.
Information supplied by Scott Horton in Harper’s