Alliance for Justice Report in Opposition to the Nomination of William H. Pryor to the United States Court of Appeals for the Eleventh Circuit

88 “U.S. Supreme Court to Hear Inmate Suit Over `Hitching Posts’,” AP, April 8, 2002.

89 Id.; see also Mary Orndorff, “High Court to Hear Case of Shackled Prisoner, BIRMINGHAM NEWS, April 8, 2002.

90 536 U.S. 730, 745 (2002); see also David White, “Inmate Can Sue Over Hitching Post,” BIRMINGHAM NEWS, June 28, 2002.

91 Id.

92 535 U.S. 654 (2002).

93 Mary Orndorff, “Pryor Will Step Into Role of Centrist,” BIRMINGHAM NEWS, Dec. 26, 2001.

94 Oral Argument of Bill Pryor, Alabama Attorney General, in Alabama v. Shelton, 535 U.S. 654 (2002); oral argument at 2002 WL 334529 at 48 (Feb. 19, 2002).

95 535 U.S. 654 (2002).

96 536 U.S. 304 (2002).

97 Robin DeMonia, “Pryor: Let Death-Penalty Ruling Stand,” BIRMINGHAM NEWS, March 28, 2001.

98 “AG: Supreme Court’s Affect on Alabama is Minimal,” AP, June 20, 2002; see also Brief for the States as Amici Curiae in Support of Respondent, 2000 U.S. Briefs 8452.

99 532 U.S. 782 (2001). The Supreme Court, in reversing the 5^th Circuit, held that although the supplemental instruction to the jury mentioned mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical, and provided an inadequate vehicle for the jury to make a reasoned moral response to the mitigating evidence.

100 Brief of Amicus Curiae State of Alabama in Support of Respondent, Penry v. Johnson, 2000 U.S. Briefs 6677.

101 Bob Johnson, “`Yellow Mama’ in Jeopardy,” MONTGOMERY ADVERTISER, Feb. 5, 2000.

102 “Justices Block an Execution in Alabama’s Electric Chair,” AP, Feb. 5, 2000. Ultimately, the Court, in a 5-4 decision rejected the Alabama inmate’s claim and voted to let his execution proceed. In re Tarver, 528 U.S. 1146 (2000) (stay of execution granted pending further order), pet. writ for habeas corpus denied and stay vacated, Tarver v. Alabama, 528 U.S. 1152 (2000), cert den., 529 U.S. 1063 (2000).

103 Questions of the Senate Judiciary Committee in Response to the Hearing on Protecting the Innocent: Ensuring Competent Counsel in Death Penalty Cases, 107^th Cong. 485 (June 27, 2001) (response of Bill Pryor, Attorney General of the State of Alabama, to questions from Sen. Richard J. Durbin, at 3, 5), available at http://www.access.gpo.gov/ congress/senate/senate14ch107.html

104 Neelley v. State, 642 So.2d 494, 499 (Ala. Crim. App. 1993) (trial attorney acknowledged sending client letters containing sexual innuendo to "keep her spirits up," but that they were merely "jailhouse" games with "jailhouse talk"); cert. quashed, 642 So.2d 510 (Ala.1994); aff’d, Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998), cert. den. 525 U.S. 1075 (1999). Ms. Neelley was granted clemency by Alabama Governor Fob James in 1999.

105 Ms. Haney’s trial was reported by Sara Rimer, In Alabama, A Neglected Defense System Skews Death Row Justice, New York Times (March 1, 2000).

106 Daniel v. Thigpen, 742 F.Supp. 1535, 1557 (M.D. Ala. 1990).

107 Questions of the Senate Judiciary Committee in Response to the Hearing on Protecting the Innocent: Ensuring Competent Counsel in Death Penalty Cases, 107^th Cong. 485 (June 27, 2001) (response of Bill Pryor, Attorney General of the State of Alabama, to questions from Sen. Richard J. Durbin, at 3, and to general questions of the Committee at 10), available at http://www.access.gpo.gov/ congress/senate/senate14ch107.html.

108 See Cothren v. State, CC-94-1167.60, Order on Rule 32 Petition at 13-14 (Shelby Co. Cir. Ct., Dec. 14., 2000) (new trial granted based on ineffective assistance of counsel claim); Jackson v. Herring, 42 F.3d 1350 (1995) (counsel was ineffective for failure to present mitigating evidence at penalty phase); Hamilton v. State, 677 So. 2d 1254, 1258 (Ala. Crim. App. 1995) (circuit court granted relief based in part on ineffective assistance of counsel claim, appellate court remanded for new trial); Watkins v. State, 632 So. 2d 555 (Ala. Crim. App. 1992) (circuit court found that the defendant was denied effective assistance on appeal through counsel's failure to supplement record with facts to support Batson argument; remanded for Batson hearing), opin. after remand, 659 So. 2d 689 (Ala. Crim. App. 1995); Daniel v. Thigpen, 742 F.Supp. 1535, 1562 (M.D. Ala. 1990) (“The breakdown of the adversarial testing process in this case is particularly evident upon review of the lawyers' handling of the issue of the petitioner's competence, his ability to assist them with his defense, and the use of independent psychiatric assistance to assist the defense.”).

109 Barbour v. Haley, CV-01-1530-N (M.D. Ala. filed Dec. 28, 2001).

110 Debate before the Rotary Club of Birmingham, Alabama, “Is the Death Penalty Fair in Alabama?,” Aug. 29, 2002. Part of Pryor’s remarks were printed in an article by Stan Bailey, entitled “AG, Defense Lawyer Debate Death Penalty,” BIRMINGHAM NEWS, July 29, 2002.

111 Bill Pryor, remarks to the Alabama State Bar Board of Bar Commissioners regarding the moratorium proposal, Montgomery, AL (October 27, 2000), at http://www.ago.state.al.us/speeches.cfm?Item=Single&Case=38.

112 Bradley v. Pryor, 305 F.3d 1287 (11^th Cir. 2002) (reversing district court's dismissal of death row prisoner’s suit to compel the State to produce evidence for DNA testing).

113 Id. at 1289.

114 Hinton v. State, CC-85-3363.60, 3364.60 (Jefferson County Circuit Ct., Ala.).

115 Editorial, Vindicating a verdict: Hinton case merits a closer look by prosecutors, Birmingham News, June 30, 2002.

116 Bill Pryor, remarks to the Alabama State Bar Board of Bar Commissioners regarding the moratorium proposal, Montgomery, AL (Oct. 27, 2000), at www.ago.state.al.us/speeches.

117 Id. As of January 2003, the Alabama Board of Bar Commissioners has tabled all proposed resolutions. Carla Crowder, “Death Row Most Crowded by State’s Size,” BIRMINGHAM NEWS, Jan. 19, 2003.

118 “NRA Awards Attorney General For Legislative Achievement,” AP, May 21, 2001.

119 Id.

120 Id.

121 James Pilcher, “Heston Pledges NRA Support to Gun Industry in City Lawsuits,” AP, Feb. 1, 1999; Russ Thurman, “Show 99: A Time to Shine,” SHOOTING INDUSTRY, April 1, 1999, No. 4, Vol. 44 at Pg. 32.

122 “State Briefs,” BIRMINGHAM NEWS, July 10, 2002; see also Dale Wetzel, “AG Says 2^nd Amendment Supports Individual Gun Rights,” AP, July 22, 2002.

123 Brief for the State of Alabama as Amicus Curiae in Support of Appellee, U.S. v. Emerson, 270 F.3d 303 (5^th Cir. 2001), cert denied, 2002 U.S. LEXIS 4269.

124 Pryor, almost anticipating an assertion that he was acting pursuant to his own agenda or that of an interest group, Pryor argued in the brief that the “state of Alabama has an interest in protecting the civil rights of its citizens,” [namely] “that every citizen has a right to bear arms in defense of himself and the state.” Brief for the State of Alabama as Amicus Curiae in Support of Appellee, U.S. v. Emerson, 270 F.3d 303 (5^th Cir. 2001), cert denied, 2002 U.S. LEXIS 4269.

125 Bill Pryor, “Litigators’ Smoke Screen,” WALL STREET JOURNAL, April, 7, 1997.

126 Judyth Pendell, “Trial Lawyers’ Next Target: The Paint Industry,” WALL STREET JOURNAL, Oct. 18, 1997.

127 Woods went on to suggest that “Alabama would be better off with Richard Pryor,” the comedian, as state attorney general. Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.

128 In the fall of 1997, Pryor proposed a bill in the Alabama state legislature that would have essentially assessed a $3.9 billion state tax on the tobacco industry for doing business in Alabama. See Robert Levy, “Wacky Tabacky Politics,” THE WEEKLY STANDARD, Jan. 26, 1998. That measure ultimately failed to pass, but then-Governor James signed into law a plan to spend any tobacco settlement money on programs for at-risk children. See Bill Poovey, “Pryor Uses Church Forum to Point Out Challenger Attending Las Vegas Party,” AP, Oct. 15, 1998.

129 “Looking Back: Winners & Losers of ’97,” WALL STREET JOURNAL, Dec. 31, 1997.

130 Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.

131 Id.

132 Kelly Greene, “Tobacco Suit by Schools Hits a Snag,” WALL STREET JOURNAL, March 19, 1997.

133 Robert Levy, “Wacky Tabacky Politics,” THE WEEKLY STANDARD, Jan. 26, 1998.

134 Id.

135 Id.

136 Gita M. Smith, “Alabama Attorney General,” ATLANTA JOURNAL AND CONSTITUTION, Oct. 18, 1998.

137 According to public records, Pryor paid Rove approximately $50,000 in 1998.

138 “Beasley Says Pryor Ought to Step Aside from Tobacco Negotiators,” AP, Oct. 23, 1998. In that article, Beasley suggested that Pryor should step aside from negotiations with the tobacco companies because of his connections to the industry. Id. Beasley is, however, currently supporting Pryor’s nomination. See Bill Rankin, “Bush Judicial Nominee a Conservative Activist,” THE ATLANTA JOURNAL AND CONSTITUTION, May 25, 2003.

139 Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002.

140 Id. If Pryor did indeed share plaintiffs’ confidential legal strategy with the tobacco company defendants, this would be a serious breach of ethics and of his fiduciary obligations to the other states. See infra, p. 26. Senators should question Pryor closely regarding his role in this process.

141 Id.

142 Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002.

143 Id.

144 Bill Poovey, “Pryor Uses Church Forum to Point Out Challenger Attending Las Vegas Party,” AP, Oct. 15, 1998.

145 Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002. Alabama ultimately received approximately $3 billion dollars, while Mississippi received approximately $4.4 billion dollars. Daniel Jackson, “Alabama Gets $3 Billion in Tobacco Money,” THE AUBURN PLAINSMAN, March 11, 1999.

146 Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.

147 Bill Pryor, “Fulfilling the Reagan Revolution by Limiting Government Litigation,” address to The Reagan Forum at the Ronal Reagan Presidential Library, Simi Valley, CA, Nov. 14, 2000. In another speech, Pryor complained that “the liberal agenda of denying individual responsibility is taken a step further by those leftist bounty hunters (otherwise known as trial lawyers) who are slick experts in representing alleged victims of corporate greed.” Bill Pryor, “The Smoking Gun” – The Next Case of Lawsuit Abuse,” Address to the American Shooting Sports Council at their Annual Convention, Feb. 1, 1999.

148 Bill Pryor, “The Smoking Gun” – The Next Case of Lawsuit Abuse,” Address to the American Shooting Sports Council at their Annual Convention, Feb. 1, 1999.

149 See Bill Poovey, “Pryor Uses Church Forum to Point Out Challenger Attending Las Vegas Party,” AP, Oct. 15, 1998; see also Libby J. Dawson, “Opposition to Binding Arbitration in Insurance Policies,” SPEAKIN’ OUT NEWS, July 21, 1998; see also Dave Bryan, “Attorney General Pryor Says Anti-Arbitration Battle is at Federal Level,” AP, May 3, 2000.

150 Gita M. Smith, “Alabama Attorney General: Democratic Challenger Sees Opportunity in Lost Tobacco Money,” ATLANTA JOURNAL AND CONSTITUTION, Oct. 18, 1998. Statements Pryor made at a tobacco settlement news conference appear to be in significant tension with his sustained efforts on behalf of industry and business against the interests of workers and consumers: “Unlike many tort reformers of today, I am a defender of the right to jury trial. When fair judges apply the simply traditional rules of evidence and the common law to control the courtroom, juries decide controversial matters in a more democratic and commonsense way that promotes public confidence in the judicial system.” Comments of Bill Pryor at a Washington, D.C. news conference sponsored by the Cato Institute, Aug. 5, 1997.

151 See http://www.ago.state.al.us.

152 Martin Reiser, “Attorney General Bill Pryor Named `Friend of the Taxpayer,’” CITIZENS FOR A SOUND ECONOMY, March 17, 2000. http://www.cse.org/newsroom.

153 Remarks of Bill Pryor at 2002 Annual Membership Meeting of the American Tort Reform Association, Washington, D.C., March 14, 2002.

154 See R.C. v. Nachman. 969 F.Supp. 682, 684-689 (M.D. Ala. 1997)(describing chronology of case); see also Carla Crowder, “Jeffco Child Welfare Official Leaving,” BIRMINGHAM NEWS, Feb. 16, 2003; John Zenor, “DHR Commissioner Stepping Down,” AP, May 26, 2000; “Making Child Welfare Work,” a publication of the Bazelon Center for Mental Health Law, which can be found at http://www.bazelon.org/rc.html.

155 See R.C., 969 F.Supp. at 686 and Bazelon Center report listed in FN 153.

156 During oral arguments, Pryor conceded that the AL DHR had not complied with the terms of the consent decree, and that the prospects of future compliance were dim. Judge DeMent, in his written decision, was critical of Pryor’s arguments: “Defendant now freely admits that it has not lived up to its end of the bargain, but nevertheless asks that it be relieved of its obligations. In essence, defendant wants to have its cake and eat it too.” See R.C., 969 F.Supp. at 689, n.5.

157 Id.

158 R.C. at 689, n.5.

159 Id. at 689. The case to which Pryor was referring was Suter v. Artist M., 503 U.S. 347 (1992), where the Supreme Court held that no private cause of action could be maintained under the Adoption Assistance and Child Welfare Act. Id. at 699.

160 Robin DeMonia, “Pryor: Only Legal Concerns: Says He Can’t Judge if Welfare Settlement Helped Children,” BIRMINGHAM NEWS, May 7, 1997. After being asked about this offensive statement, Pryor stated that what he had meant to say was that the state’s social workers were charged with protecting children, and, as attorney general, it is was his duty to protect the social workers’ ability to do so. Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.

161 Id. at 704, 705 n.18.

162 George Lardner, Jr. and Susan Schmidt, “GOP Attorneys General Solicit Large Contributions from Corporations that are Embroiled in Lawsuits,” WASHINGTON POST, March 30, 2000. When the group was initially founded in 1999, Pryor served as its Treasurer.

163 Id. See also Andrew Wheat, “Attorneys General for Sale?,” MULTINATIONAL MONITOR, June 1, 2001. In a speech before the American Shooting Sports Council, Pryor again alluded to the “public-private lawyer alliance” in the states’ suits against the gun and tobacco industries when he said: “This dangerous marriage of the tort bar and governmental power must be severed soon before it further weakens what remains of limited government, the rule of law, and respect for individual responsibility in this Nation.” Bill Pryor, “The Smoking Gun” – The Next Case of Lawsuit Abuse,” Address to the American Shooting Sports Council at their Annual Convention, Feb. 1, 1999.

164 Contributions to RAGA are considered legal “soft money” donations to the Republican National Committee. The RNC, in turn, funnels these contributions to the Republican National State Elections Committee. The donations are then credited internally to RAGA.

165 George Lardner, Jr. and Susan Schmidt, “GOP Attorneys General Solicit Large Contributions from Corporations that are Embroiled in Lawsuits,” WASHINGTON POST, March 30, 2000. Microsoft, which at that time was being sued by 19 states who had joined a Department of Justice antitrust lawsuit, contributed $10,000 to RAGA in 1999, according to its company’s spokesman. Ameritech, which was being investigated by state officials, contributed $35,000, according to a company representative. Aetna allegedly gave $10,000 to the RNC’s soft money account on July 26, 1999, right around the time of RAGA’s first fund-raising drive, but it is unclear whether that money had been designated for RAGA. Id. A 2001 AP news article reported that a company spokesperson for SBC Communications, which through its acquisition of Ameritech gained control of one-third of the nation’s phone lines, acknowledged that the company contributed $35,000 to RAGA. See Robert Tanner, “Amid Growing Power, State Attorneys General Face Test at Elections,” AP, June 4, 2001; see also “Montgomery Drops Fundraising Ties,” STATE NET CAPITOL JOURNAL (OH), April 7, 2000. According to a 2002 press report, the National Rifle Association (who sponsored a skeet shooting event at a 2000 winter RAGA meeting in Texas), DuPont, and Arthur Andersen LLC also contributed to RAGA. See Ron Williams, “Brady Headed Funny-Money Group,” THE NEWS JOURNAL (DELAWARE), Oct. 4, 2002. http://www.delawareonline.com/newsjournal/opinion/williams/10042002.html; see also Robert Tanner, “Amid Growing Power, State Attorneys General Face Test at Elections,” AP, June 4, 2001.

166 Id.

167 Eric Fleischauer, “AG Pryor Refuses to List Republicans’ Corporate Donors,” THE DECATUR DAILY, Oct. 29, 2002.

168 Rule 1.7 of the ABA Model Rules of Professional Conduct is similar.

169 Comment, Rule 1.7, Alabama Rules of Professional Conduct.

170 George Lardner, Jr. and Susan Schmidt, “GOP Attorneys General Solicit Large Contributions from Corporations that are Embroiled in Lawsuits,” WASHINGTON POST, March 30, 2000.

171 “Montgomery Drops Fundraising Ties,” STATE NET CAPITOL JOURNAL (OH), April 7, 2000.

172 Andrew Wheat, “Attorneys General for Sale?,” MULTINATIONAL MONITOR, June 1, 2001.

173 Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002. Moore’s warnings were not heeded, and in mid-2002, the Democratic party set up a similar organization (DAGA) designed to solicit contributions for the re-election of incumbent Democratic attorneys general. By contrast, RAGA was formed to make Republican attorneys general competitive in elections for opens seats or in races against Democratic incumbent attorneys general. Apparently, DAGA was formed as a defense mechanism to the aggressive efforts of RAGA. See Alan Greenblatt, “Where Campaign Money Flows,” GOVERNING MAGAZINE, Nov. 1, 2002.

174 “I know that Bill met with tobacco lobbyists. Whether it was a surreptitious as sneaking notes to the other side, I don’t know.” Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002.

175 See Formal Opinion 95-395, Obligations of a Lawyer Who Formerly Represented a Client in Connection With a Joint Defense Consortium, ABA STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY (July 14, 1995); see also, section 132, ALI Restatement of the Law, Third, The Law Governing Lawyers (2000), comment g(ii) and Reporter’s Note.

176 The ABA Standing Committee on Federal Judiciary: “What it is and How it Works.” This document can be found at http://www.abanet.org/scfedjud/backgrounder.html.

177 Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.

178 Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.

179 Brief of the State of Alabama as Amicus Curiae Supporting Reversal, Bush v. Gore, 2000 U.S. Briefs 949.

180 See Mary Orndorff, “Federalism, Key Pryor Issue: Stance May Decide Appellate Court Post,” BIRMINGHAM NEWS, April 27, 2003.

181 “Unfit to Judge,” WASHINGTON POST, April 11, 2003.

Report on the Nomination of William H. Pryor to the U.S. Court of Appeals for the Eleventh Circuit

Alliance for Justice 11 Dupont Circle, 2^nd Floor Washington, DC 20036 ph (202) 822-6070
Report can be found on IndependentJudiciary.com


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