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Monday, September 24, 2007

Mississippi Churning, Part VII

Let's return to our analysis of the Paul Minor case in Mississippi.

We have noted that the Minor case has important connections to the Don Siegelman prosecution in Alabama, the broader Bush Department of Justice (DOJ) scandal, and my own Legal Schnauzer case.

Thanks to Scott Horton, of Harper's, we now know that there might have been particularly sinister motives behind the Minor prosecution. Horton reported on Saturday that his sources are telling him that the Bush administration devised a scheme in late 2001 or early 2002 to target wealthy trial lawyers who are sources of campaign funding for Democratic candidates. Horton's sources say at least five raids have been conducted on law offices around the country, seeking financial data and other information that could be used in criminal prosecutions. The idea? To dry up sources of Democratic funding.

Minor certainly fits the profile of a wealthy trial lawyer who was generous with his funding of Democratic candidates. And if the scheme Horton describes is proven, it might turn out that Minor was one of its first targets.

In posts last week, we described the applicable law in the Minor case and noted strong evidence to suggest the case was wrongly decided and might have been a "political hit" similar to the Siegelman prosecution in Alabama. We particularly noted strange rulings and jury instructions by Judge Henry Wingate (a Republican appointee) that do not appear to square with case law.

Now we look at the two lawsuits that were at the heart of the government's case against Minor and Judges Wes Teel and John Whitfield. The government's case claimed that Minor provided a series of loans to the judges in exchange for favorable rulings on cases he had before them. The primary charges against the defendants were federal funds bribery (18 U.S. Code 666) and honest-services mail fraud (18 U.S. Code 1346), and they were found guilty on all counts.

We noted earlier that the key to a bribery and honest-services mail fraud conviction is a finding that acts were taken with knowledge that they were unlawful, depriving citizens of the judges' honest services. The central question is this: Did the judges actually make unlawful rulings, rulings that were not supported by the facts and the law?

The first lawsuit in the government's case was The Peoples Bank v. USF & G. Minor, representing The Peoples Bank of Biloxi, MS, filed the lawsuit on August 25, 1998. I don't have a lot information about the specific issues involved in the case. But something tells me it involved banking and insurance. (You've got to get up early to sneak one past the Legal Schnauzer.)

For our purposes, we don't need to know a lot about the issues in the case. We do know that on October 16, 2000, Judge Wes Teel ruled in favor of Minor's client, The Peoples Bank, on a discovery issue. USF & G had claimed that certain information was privileged and should not be produced in discovery.

In December 2001, Teel ruled in favor of The Peoples Bank on the issue of liability. About three days after the ruling, the parties held a settlement conference, and USF & G agreed to pay $1.5 million to settle the case. The government alleged that Minor received approximately $500,000 in attorney's fees.

As I've noted previously, I was not present at the trial. But even the government's indictment does not provide any information showing that Teel's rulings were contrary to law. It does not state the nature of the privilege claim that USF & G made, but even a pseudo-lawyer such as myself knows that judges have great leeway in ruling on discovery matters. Information that might not be admissible at trial still is discoverable. Privileged information is not discoverable, but I see no information indicating that Teel's ruling was incorrect.

And there is no indication that Teel's ruling on liability was contrary to law. As I've noted earlier, it would not be unlawful for Teel to rule in Minor's favor if the law and the facts indicated he should rule in Minor's favor. And the loans Minor provided to Teel were allowed under Mississippi law. (Although you could count me among those who think such loans, gifts, etc. should not be allowed.)

Several apparent facts make this seem like a weak case for the government to base its corruption charges. If attorneys for USF & G felt Judge Teel was prejudiced against them and was ruling contrary to law, they had several steps they could have taken:

* They could have filed an interlocutory appeal under Rule 5 of the Mississippi Rules of Appellate Procedure.

* They could have filed a writ of mandamus under Rule 21 of the Mississippi Rules of Appellate Procedure.

* They could have filed a motion seeking Judge Teel's recusal and appointment of a new judge.

If none of that worked, they could have contacted journalists in the business press and alerted them to wrongdoing in Mississippi courts. I suspect business journalists pay attention when representatives of USF & G call.

I see no indication that the attorneys for USF & G took any of these steps, which makes me think they did not see Judge Teel's rulings as being ungrounded in law.

Perhaps the most important point regarding The Peoples Bank case is this: Teel made no final ruling in the case. USF & G chose to settle, but there was nothing to keep the company from moving forward and taking the case to trial.

The government's decision to charge Teel and Minor with corruption offenses on a case where Teel did not even make a final ruling seems highly questionable.

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