More thoughts on the memorandum opinion by U.S. District Judge Mark Fuller, explaining his reasons for denying Don Siegelman's motion for release pending appeal. The more you study Fuller's memorandum, the more you understand why he put off writing it for so long. Fuller is like a fifth grader who did not do his homework, and now is having to explain that to his teacher. As you will see, Fuller's written explanation has holes large enough to drive a Peterbilt through:
* It's impossible to conduct a thorough analysis of Fuller's opinion without access to a trial transcript. We are forced to accept Fuller's version of events because we have no transcript to check against the judge's opinion. In fact, news comes today that the court reporter has been granted a second extension, until March 31, to complete the transcript. So that's almost another two months that Siegelman and Richard Scrushy must remain in prison because of the court's incompetence. And who is responsible for ensuring that a transcript is completed in a timely fashion? According to Scott Horton, of Harper's, it's Fuller himself.
* Here's a question for you: If no one has access to a transcript, how did Fuller manage to complete his opinion released this week? More than half of the 30 pages consist of his recitation of events in the trial. How did he come up with those events if he doesn't have a transcript? Does he have a spectacular memory? If his memory is so spectacular, why could he not remember that he is responsible for ensuring that a trial transcript is prepared in a timely manner? And if more than half of Fuller's opinion is based simply on his memory of events, how much stock should we put in it?
* We noted in our previous post on this subject, that only 14 pages of Fuller's 30-page opinion dealt with the questions posed by the U.S. 11th Circuit Court of Appeals. Of those 14 pages, almost six deal with the obstruction of justice charge against Siegelman. I've stated here many times that I am not a lawyer. But based on my legal research, obstruction of justice appears to be what I would call a "piggyback" charge in criminal law. In that regard, it seems to be similar to a charge of conspiracy. By definition, conspiracy cannot be charged without other charges being involved. And it seems that obstruction of justice, in the vast majority of cases, would only "ride along" with other, more fundamental, charges. My point is this: I don't think the jury in the Siegelman case would have gone for a guilty verdict on the obstruction of justice charge without also making a guilty finding on at least one of the more fundamental charges. For that reason, the obstruction of justice charge is somewhat extraneous, so I won't spend much time on Fuller's statements about that.
* The two fundamental charges in the Siegelman case were federal-funds bribery and honest-services mail fraud. And interestingly, Fuller uses barely two pages to address the two most important issues in the trial--that's two pages out of a 30-page memorandum. The memorandum is available here. Fuller's discussion of these critical subjects begins in the middle of page 27 and runs to the middle of page 29. Makes you think he doesn't want to talk about them much.
* And here is why Fuller probably does not want to talk much about federal-funds bribery or honest-services mail fraud. A close reading of Fuller's opinion suggests that the judge either does not know, or is intentionally misstating, the law on those two key charges. Fuller states that Siegelman's motion does not establish that a conviction under 18 U.S. Code 666 (bribery) or 18 U.S. Code 1346 (honest-services mail fraud) must be predicated on an explicit quid pro quo. I don't know the various cases Siegelman's lawyers cited in their motion. But there is no question that 11th Circuit precedent requires a quid pro quo for a bribery conviction. I don't have the first day of law school, and I was able to find that case law, so I feel certain Siegelman's attorneys were able to find it, too.
* The most recent 11th Circuit case on bribery appears to be U.S. v. McCarter, 219 Fed. Appx. 921 (2007). The McCarter opinion could not be more clear: "To prove a defendant is guilty of bribery, the government must prove there was "a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." The McCarter court cited U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, a well-known U.S. Supreme Court decision related to bribery from 1999.
* Did Fuller's jury instruction on bribery reflect this language? He claims that it did--sort of. He says the jury was "sufficiently apprised" of the quid quo pro requirement. Sufficiently apprised? What the heck does that mean? Either the jury received the language noted above--or language very similar to it--or it didn't. That's the law in the 11th Circuit, and we're not talking about a close call here. If Fuller's jury instruction did not pretty much mirror the language noted above, the conviction of Siegelman and Scrushy was based on trumped-up law. Of course, we could check the jury instruction if we had a trial transcript. But we don't, thanks largely to Fuller. Maybe he doesn't want the public to know what his jury instruction was, not when he can keep Siegelman and Scrushy languishing in prison for as long as possible.
* Even more troubling is the fact that Fuller ties bribery and honest-services mail fraud together in his statement regarding quid pro quo. Honest-services mail fraud has nothing to do with a quid pro quo, and a federal judge should know that. You can learn what mail fraud actually is here. At the heart of the offense is "a willful act by defendant with specific intent to deceive or cheat." It's hard to see how Siegelman committed an act to deceive or cheat by appointing Scrushy to a spot on the Certificate of Need (CON) Board, especially when Scrushy had served on the board under three other governors. And at least one of those governors, Republican Fob James, received a major campaign contribution from Scrushy.
* In the 14 pages relevant to 11th Circuit questions, Fuller makes one reference to honest-services mail fraud. It's the second most important charge in the indictment, and the judge makes one passing reference to it? Makes me think the government's case against Siegelman on this charge was incredibly weak, and Fuller either knows it or he simply hasn't bothered to educate himself on the relevant law.
* Let's get to the heart of the matter, the whole reason for Fuller's memorandum. On page 16, he lays out a four-pronged test for determining whether the defendants should be detained pending appeal. The four-pronged test is based on language from U.S. v. Giancola, 754 F. 2d 898 (11th Cir., 1985). Fuller and the government seem to concede that Siegelman meets the first two prongs--that he is not likely to flee or pose danger to the safety or others; and his appeal is not for purposes of delay. So it comes down to prongs 3 and 4: Does the appeal raise a substantial question of law or fact; and if that substantial question is determined favorably to the defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts.
* It's shockingly easy to answer the questions raised by prongs 3 and 4--and the answer is yes. And that means Siegelman and Scrushy, by law, must be released pending appeal. Why do I say it's easy to make this determination? Well, Fuller's own language makes it clear that he either doesn't know, or is intentionally misstating, the law related to the two most important charges--federal-funds bribery and honest-services mail fraud. As we've shown above, Fuller indicates that he is not aware that a bribery conviction requires a quid pro quo. And Fuller's own words indicate that he knows next to nothing about honest-services mail fraud. So we clearly have substantial questions of law because the judge himself has shown that he doesn't have much of a clue what the law really is
* And as for questions of fact: Without a transcript, there is a question about every fact in the case. In fact, without a transcript, there is a question about every element of law raised in the case. I've got a stump in my backyard that could get this right: Siegelman and Scrushy, by law, must be released pending appeal--and by law, they never should have been imprisoned in the first place. Will the 11th Circuit get it right? Don't hold your breath. My guess is that the 11th Circuit does not want to expose Judge Mark Fuller for the corrupt bozo that he is. Better that Siegelman and Scrushy unlawfully remain in prison rather than the public know what Mark Fuller really is all about.
* Methinks we are now understanding why Fuller waited so long in "answering" the 11th Circuit's queries. He has neither the facts nor the law on his side, so he is going into a stall--a legal version of the old "four corners" offense North Carolina used to employ in college basketball. Will the 11th Circuit, or perhaps Congress, force Fuller out of his stall by employing a serious full-court press? It's about time someone did.