News came late last week that Nick Bailey, a key prosecution witness against former Alabama Gov. Don Siegelman, has been released from federal prison and moved to a halfway house in Birmingham.
That prompted your humble correspondent to take a close look at the Siegelman appeal, and what did we find? Strong indications that, as we suspected, Siegelman was wrongly convicted.
First, I should say this: The Siegelman document is not the kind of reading you would take to the beach. It's 86 pages long and filled with legal lingo that can make the head begin to nod. I'm a Legal Schnauzer, not a lawyer. And I don't have the prosecution's response to the Siegelman document.
But key sections of the appeal are drawn straight from the trial record. And those sections alone tend to show that Siegelman's conviction was not correct under the law.
We addressed the Siegelman appeal in a post a few weeks back that drew on the fine work of the Tuscaloosa News' Tommy Stevenson. In addition to an excellent overview of key points in the Siegelman appeal, Stevenson provided a link to the appellate document itself.
After girding our loins upon checking out this formidable piece of legal work, we decided to take the plunge. And it proved to be a rewarding endeavor, convincing us that Siegelman and codefendant Richard Scrushy were wrongly convicted for several reasons.
First, we were not surprised to learn that U.S. Judge Mark Fuller gave improper jury instructions, mirroring the actions of his fellow Republican appointee Henry Wingate in the Paul Minor case next door in Mississippi.
Citing McCormick v. U.S., 500 U.S. 257 (1991), Siegelman's attorneys show that federal law requires proof of an explicit quid pro quo for conviction in a public-corruption case. In short, an explicit "agreement" or "promise" of favorable action is unlawful, but an "expectation" of such a result is not.
Fuller's jury instruction did not make that distinction. On page 48 of the appeal, Siegelman's team states: "The District Court advised jurors that they could convict Gov. Siegelman upon finding that [he] intended to alter [his] official actions as a result of the receipt of campaign contributions or other benefits."
This, however, is not what the law says. The Siegelman team correctly points out that the instructions did not require an agreement or promise at all, much less an explicit one. "They allowed for conviction based on attribution of a state of mind to Gov. Siegelman."
Based on the error in jury instructions, Siegelman should receive a new trial, his team states. But it goes on to show that evidence at the trial was insufficient, meaning the former governor is due a judgment in his favor.
Talk of evidence brings us back to Nick Bailey. Siegelman's attorneys recite the key conversation between Bailey and Siegelman after the former governor had met with Scrushy:
Bailey: What is Scrushy "going to want for that [campaign contribution]?"
Siegelman: "The CON Board."
Bailey: "I wouldn't think that would be a problem would it?"
Siegelman: "I wouldn't think so."
This shows that Siegelman thought Scrushy wanted a CON Board appointment, and that Siegelman didn't think that would be a problem. But it does not show an explicit quid pro quo.
"Evidence from Bailey shows that there was at best a tentative expectation about what would happen in the future . . . ," the Siegelman team states. "That is what Bailey's testimony shows: future possibility at best. It does not show that there was a promise made to Scrushy."
A close look at the appeal drives home a point we have made before. The public tends to think the Siegelman trial was primarily about bribery. But in terms of numbers, it was about honest-services mail fraud. Roughly two-thirds of the charges, and five of the seven counts upon which Siegelman was convicted, involved honest-services mail fraud.
We noted in a previous post that the honest-services mail fraud convictions could not stand. That's because federal law requires that the conduct "actually deprive the public" of an official's honest services. (U.S. v. Walker, 400 F. 3d 1282.) And that did not occur because Scrushy clearly was qualified to serve on the CON board and had served on the board under three previous governors.
In terms of public opinion, the conviction on a single bribery count might have been most damaging to Siegelman. Many citizens probably could not begin to define honest-services mail fraud. But folks have a pretty good idea of what bribery means.
Here is something else we learn from a close look at the appeal: The bribery charge almost certainly should not have gone to the jury--or before the court at all, for that matter.
So how did it happen? Scott Horton, legal affairs contributor at Harper's magazine, has written numerous posts about Judge Fuller's myriad conflicts in the case. Those conflicts appear to have come to life in the form of a judge who clearly favored the prosecution.
We've already seen that the Siegelman conviction was built on a shaky foundation. Now we learn that the most important count, bribery, was even shakier than we thought.
(To be continued.)