Attorneys for former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy have filed papers asking the full 12-judge U.S. 11th Circuit Court of Appeals to hear their case.
Glynn Wilson, of Locust Fork News-Journal, reports that the request for rehearing focuses primarily on the contention that the alleged quid pro quo bribery in the case was based on an "implied" agreement, not an "explicit" agreement as required by federal law.
A three-judge panel of the 11th Circuit upheld the Siegelman and Scrushy convictions on corruption-related charges in U.S. District Court in Montgomery, Alabama. But attorneys for Sieglman and Scrushy argue that trial-judge Mark Fuller did not issue jury instructions that require an explicit "something for something" agreement, and evidence presented to the jury showed that no such agreement existed.
If the three-judge panel's ruling is allowed to stand, Siegelman said, prosecutors will be able to pick and choose their targets among contributors and elected officials. In a written statement, Siegelman said:
The U.S. Supreme Court's ruling in the McCormick case made it clear, that in this area of First Amendment rights, before a jury could convict an elected official or a contributor on bribery, there had to be an "explicit" not an "implied" agreement.
My three-judge panel has allowed my conviction and my seven-and-a-half-year sentence to stand basically by defining "explicit" to be something that can be inferred or implied by the jury from the mind and actions of the actors.
The petition for an en banc hearing of the full court, plus an appendix, can be viewed at the following links through Locust Fork News-Journal:
* Petition for rehearing
Our understanding is that the government has 21 days to file a response brief. If the full court agrees to hear the case, a date will be set for oral arguments.
Interestingly, the Siegelman appeal focuses almost exclusively on the bribery, quid pro quo issue. My review of the three-judge panel's ruling indicates it made errors in at least three or four other areas.
I'm not an expert on federal appellate procedure, but there must be a reason why the Siegelman team is focusing almost totally on one issue. Perhaps federal rules prohibit the length of briefs and the amount of time for oral argument, so the Siegelman team chose to focus on the central issue in the case. Also, it might be considered bad form in legal circles to point out the multiple ways the three-judge panel screwed up its ruling--and almost certainly did it intentionally.
It's interesting to recall that in oral argument before the three-judge panel, a Siegelman attorney was cut off when he tried to argue on the quid pro quo issue, and the panel asked questions mostly on relatively minor issues. The Siegelman team probably feels the central issue in the case has never been appropriately explored at the appellate level.
In his statement, Siegelman got the core of the issues at stake:
Yes, this is about my personal freedom, but it is even more important that this First Amendment issue be clarified so the law won't be a trap for the unwary.
Thomas Jefferson said, “Whenever the people see things that are wrong, the people can be relied upon to set those wrongs to right.” We need to get a message to the U.S.Department of Justice to help get this wrong set right.
If the three-judge panel's new definition changing an "explicit" to an "implied "quid pro quo is allowed to stand, not only am I up the creek without a paddle but federal prosecutors will be able to pick and choose contributors and elected officials seeking convictions based solely on a jury's view of what was in the minds of the elected official, not based on any express communication.