Mississippi Churning, Part VI

Before we examine the two lawsuits that were at the heart of the government's case in the Paul Minor trial, let's look at the issue of jury instructions.

I've had to represent myself in a trial, and take it from me, it's a scary experience. But one of the scariest parts for me was the process used for developing jury instructions.

Here's how you might think it would work: The judge is supposed to know the law, and he is well paid, so you figure he would tell the jury what the law is and maybe throw in a few citations or two--to show the jury how smart he is and maybe impress them a bit. Seriously, you would think he would include citations for all statements of law, just so the jury would know it's deliberations are well grounded.

But that's not how it works, at least in my experience. Each side writes up what it thinks the jury instructions ought to be and hands them to the judge. The two sides talk to the judge in earnest tones, the judge shuffles the papers around a bit, maybe goes to his chambers or the bathroom (watch out for wide stances!), and then returns to read the law to the jury. I'm not even sure if the jury gets a written copy of the jury instructions. Don't think they did in my case; I know I didn't get a copy.

I was well acquainted with the applicable law in my case. But by the time we had traded papers, and the judge had shuffled them around, and hummed and hawed, and taken a bathroom break or two, I had no idea if his instructions to the jury were correct.

Based on my own experience, I was intrigued to read the jury instructions for the Minor trial when they showed up on the Web. I don't know if they are still on the Web or not. But I do know that judges have enormous power when it comes to the instructions that jurors hear. Keeping in mind the power of Judge Henry Wingate, here are some points in the Minor jury instructions that jumped out at me:

Honest-services mail fraud and state bribery laws

Wingate says: "This deprivation of 'honest services' owed to the State of Mississippi refers to the bribery laws of the State of Mississippi. . . . In order to deprive the State of Mississippi of their honest services, defendants John H. Whitfield and Walter W. "Wes" Teel must have owed the State of Mississippi a duty that is defined by the bribery laws of the State of Mississippi and have violated that duty."

Legal Schnauzer says: I don't get it. I've seen numerous cases of case law that state honest-services mail fraud need not be connected to state law. One example is U.S. v. Frega, 933 F. Supp. 1536 (1996): "The mail fraud statute . . . did not need to reference state law in order to define fraudulent conduct." Or how about this: "An honest services mail fraud or mail fraud conviction does not require proof of a state-law violation." U.S. v. Walker, 490 F. 3d 1282 (2007). So your humble correspondent is confused. Why is the judge tying the federal mail-fraud charge to state bribery law? Hmmm.


A judge's honest views

Wingate says: "If the particular judge acted in a particular circumstance, based upon his honest views not corrupted by a bribe, his actions do not constitute a deprivation of honest services under the mail and wire fraud statutes."

Legal Schnauzer says: That matches the law I've read. But how can the judge prove this if he is not allowed to call an expert witness to testify that his rulings were fair and correct under the law?


Criminal intent

Wingate says: "You may find specific criminal intent even though you may find that the rulings were legal and correct, that the official conduct would have been done anyway, that the official conduct sought to be influenced was lawful and required by law, and that the official conduct was desirable or beneficial to the public welfare."

Legal Schnauzer says: Sounds like the prosecution wrote this one. So you are saying, "The loans and gifts etc. can be legal (which they were), and the judges' rulings can by lawful and correct, and the jury still can find criminal intent?" Excuse me while I scratch my head. Actually, excuse me while I say you are flat-out wrong. Consider this case law: "Even if a public official engages in 'reprehensible misconduct related to an official position,' his conviction for honest services fraud cannot stand where the conduct does not actually deprive the public of its right to [his] honest services, and it is not shown to intend the result." U.S. v. Walker, 490 F. 3d 1282 (2007). Clearly, the public cannot be deprived of a judge's honest services if the judge's rulings in a case were fair and correct--no matter how many loans (legal ones) an attorney might have provided to the judge. So your Honor, what gives? And finally consider this: "Undisclosed, biased decision-making for personal gain, whether or not tangible loss to the public is shown, constitutes a deprivation of honest services." U.S. v. Antico 275 F. 3d 245 (2001). Where is the biased decision-making in the Minor case? We will look at this more closely in a moment, but you didn't give the judge defendants a chance to show that their decision-making was not biased. Why?

Concealment

Wingate says: "Prior to January 19, 1999, the laws of the State of Mississippi governing judicial elections and/or campaigns did not require the disclosure on a campaign finance disclosure form of loans to a campaign nor the fact that any such loan was guaranteed by some third party or the identity of the guarantor, if any. . . . Money obtained by a public official as a borrower on a loan from a bank, and transactions to obtain or renew such a bank loan, do not ordinarily constitute income to the public official for any such reporting purpose. . . . Further, no such financial disclosure laws in Mississippi require the disclosure by a public official of the name of a source of actual income; instead the law requires only that the types of sources of gross income be disclosed on the Statements of Economic Interest. . . . Proof that a defendant failed to comply with the directives of a Statement of Economic Interest, standing alone, is not proof that a federal law has been violated."

Legal Schnauzer says: Wow, sounds like the defense wrote this one, and you evidently agreed that this is the law. So tell me again: How did these people get convicted? Were they convicted for "concealing" transactions that they didn't have to reveal anyway? Did the jurors sleep through your instructions?

Paul Minor's alleged concealment

Wingate says: "As to defendant Paul Minor. He was never a public official, nor candidate for office; therefore, he was not required to file any such disclosure at any time."

Legal Schnauzer says: "Well snip my pickle and call me Shlomo (to quote the cantankerous Dr. Kelso on Scrubs). News reports say Minor and Co. were convicted mainly because of their acts of concealment. But you seem to be saying that the judges weren't required to reveal certain information, and Minor, heck, he could "conceal" stuff all he wanted. He's not a public official. So tell me again, how did these folks get convicted?"

Legal Schnauzer has the last word (after all, it is my blog): Your Honor, you appear to have made some serious mistakes in jury instructions. If some of your rulings and jury instructions are supported by law, I sure as heck can't find the law. (If anyone else can find it, please let me know.) And in instances where your jury instructions were correct, it appears that the highly educated jury chose to ignore them.

Ah, justice in Mississippi. Sounds a lot like justice in Alabama.