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Thursday, June 25, 2009

The Cheating of Don Siegelman, Part II

In Part I of our series, we showed that a three-judge panel of the U.S. 11th Circuit Court of Appeals got it wrong regarding the statute of limitations in the Don Siegelman case.

Now we will show that the appellate panel got it wrong on the fundamental tenets of bribery law.

I don't think I've ever read of any portion of the Siegelman case described as comical. But it's almost funny to read the 11th Circuit's pathetic attempt to split hairs on the Siegelman appeal.

The judges go on an extended discourse about the subtle differences between two words--"explicit" and "express." In fact, you could make a strong argument that Siegelman and codefendant Richard Scrushy might be headed to federal prison for the rest of their lives because of the way three Republican judges interpret those two words.

But when you look at the full picture, as we have endeavored to do, you realize the three judges are full of that stuff you try not to step in when walking in a barnyard.

The critical case law in the Siegelman appeal is McCormick v. United States, 500 U.S. 257 (1991). A discussion of that case is what leads the 11th Circuit into its "explicit vs. express" soliloquy. It's also where the 11th Circuit goes badly off track.

It gets off to a solid start by correctly stating that McCormick "made clear that only if 'payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.'"

The court acknowledges that this is the quid pro quo ("something for something") required by law. So far, so good.

But then comes this:

Defendants, however, assert that the instruction was inadequate under McCormick. Defendants assert that the instruction failed to tell the jury that not only must they find that Siegelman and Scrushy agreed to a quid pro quo, the CON Board seat for the donation, but that this agreement had to be express. We disagree that McCormick requires such an instruction.

There's only one problem with the court's assertion that the Siegelman team argued that the agreement must be "express." It isn't true.

By my unofficial count, the Siegelman appellate brief argues at least a dozen times that the agreement must be "explicit." Here is just one example:

To recognize the correctness of our argument on this point, it is useful to begin with McCormick v. U.S., 500 U.S. 257, 111 S.Ct. 1807 (1991). There, the Supreme Court read the extortion statute, 18 U.S.C. § 1951, in precisely the way that we are suggesting that the present statutes ought to be read as well. Recognizing that campaign contributions are a constant in the real life of politicians, the Court held that a link between such a contribution and an official act would constitute the crime of extortion only if there was an “explicit quid pro quo.” Id., 500 U.S. at 271 & n.9, 111 S.Ct. at 1815 & n.9 (formulating the question in that way); 500 U.S. at 273, 111 S.Ct. at 1816 (“only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”). The Court held that if the Congress wanted to criminalize conduct short of that, conduct that “in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures,” Congress would have to be explicit about it. 500 U.S. at 272-73, 111 S.Ct. at 1816.

Over and over, the Siegelman team makes the same argument, quoting directly from McCormick: The agreement must be "explicit."

Never does the Siegelman team do what the 11th Circuit claims it does: assert that the agreement must be "express."

By my count, the core portion of the Siegelman brief uses the word "express" twice. Once, it's a parenthetical, almost throwaway, use. Here it is:

The Court was thus speaking overtly in terms of explicit, express, promises and agreements.

On another occasion, the brief states that a prominent law dictionary says the two words are interchangeable. But never does the Siegelman brief argue that the agreement must be "express" instead of "explicit"--or even "express" in addition to "explicit."

The Siegelman brief mentions the word "express" only in terms of paraphrasing. Contrary to what the 11th Circuit claims, that is not its core argument. Its core argument is based on a word-for-word recitation of McCormick, which the 11th Circuit admits is the controlling law. In fact, after its one primary use of the word "express," the Siegelman team comes right back with this:

The criminally-prohibited situations, said the Court, are those in which there is an “explicit promise or undertaking” by the official to act in exchange for the contribution, in which “the official asserts that his official conduct will be controlled by the terms of the promise or undertaking.” Id., 500 S.Ct. at 273, 111 S.Ct. at 1816. To rise to the level of a crime, there must be a communication by the official, amounting to an overt promise or undertaking.

So there you have it. The Siegelman brief repeatedly cites McCormick and states, correctly, that the agreement must be "explicit." And the 11th Circuit takes one throwaway use of the word "express" and misstates the Siegelman argument entirely.

How to explain this curious reading by the 11th Circuit? I can only think of two explanations:

* One of the judges on the panel (James C. Hill) is 84 years old. Another (Gerald Bard Tjoflat) is 79. The whipper snapper of the group is 61-year-old J.L. Edmondson. Perhaps Hill and Tjoflat have lost their ability to read simple, clear language, and Edmondson was "out to lunch" on this opinion. Thus, we are talking about incompetence.

* The judges intentionally misstated the Siegelman argument as a way to get the result they wanted. Thus, we are talking about corruption.

As we will see in a moment, the "explicit vs. express" argument really didn't matter. That's because trial judge Mark Fuller's jury instruction didn't use either word.

In other words, Fuller's jury instruction did not cite the correct law--no matter how you slice it.

And the 11th Circuit is letting him get away with it.

(To be continued)

Previously . . .

Here's How An Appellate Court Cheated Don Siegelman (introduction)

The Cheating of Don Siegelman, Part I (statute of limitations)

6 comments:

Anonymous said...

OK Legal Schnauzer.

You are going to lose your title to a Legal Beagle should you not get your collegial and therefore, accepted STYLE of lies, corruption, distortion, and it appears the end-goal is always the same: to have it "the way of the court," as "legal," but of course.

RULE NO. 1: Word armies.

Can you now UNDERSTAND, that, the word armies are always abounding in the vocabularies of "lawyers!?"

AND, there is NO allowance for any lay person to know the armies of words since we cannot parse them. We the ordinary, every day human being/s, have been indoctrinated into the schools purposely to misunderstand how the armies of parsed-split-hair-brained-stoooopid ... words rule our world.

Obfuscated BS has replaced the idea of scholarly.

Collegial, in other words, needs to go back to school and learn what the words of scholars look like.

Oh, all anyone has to do is to come to this site and get it.

Thank you LEGAL SCHNAUZER!

Best, Biloxi

David W said...

Were the three judges bordering on senility......or did they let Bill Pryor write it for them?

Anonymous said...

the opinion is bad and poorly written, but not wrong on this point of law.

the gov argued that the law requires an "out loud" quid pro quo. the gov further argued that this out loud agreement is encompassed in the use of "explicit." however, "out loud" is under the law typically defined as "express", in this case, a term of legal art. a lawyer describes an out loud agreement as "express". An explicit agreement is one that can be express, but it does not have to be. An agreement or contract or understanding can be "explicit" if all of the parties understand what is happening, even if there is no expressed quid pro quo.

the gov wanted "explicit" to = "express". the court denied to equate these terms, which it should have done.

in the law, some words have very specific meanings. your attemtpt to equate express with explciit makes common sense, but not legal sense. the court got this issue right.

legalschnauzer said...

Anon:
The court did not get it right, and Siegelman did not argue that it had be an "out loud" agreement. No such language is found in the appellate document. Siegelman argues over and over the exact language of McCormick--that the agreement must be explicit.

You are doing essentially what the court did: Attributing arguments to the Siegelman team that they didn't make.

I agree that the opinion is bad and poorly written. But it's also wrong on this point of law. That's why it's bad.

LS

Anonymous said...

LS & Anon "lawyer?" -- LS is 100% accurate in his observation of this 'behavior' (e.g., ALWAYS, immediately, spontaneously, the 'establishment' mind controlled attorneys go for the prosecutor role, pouncing on the 'victim' - plaintiff v. BIG CORP., in essence BIG is ALWAYS too BIG TO FAIL - and nine times out of ten attorneys recklessly on autopilot defend the government which is out of control). I have experienced this in the court systems now, most predominantly within these past fifteen (15) years and my actual time frame indirectly and directly both in tandem, for more than thirty (30) years involved in law. I am not divorcing my husband, for the moment (an attorney), because HE FINALLY freed his head on these word army games played on lawyers by the establishment. It is truly astonishing. Long story and I am not at liberty to talk about my case, for the period of time in the 'ruling' - was in US District Court Thurs. 062509, and I am more than HOPEFUL regarding the CHANGE I witnessed when presenting the court with a document that truly proved the fraud which cannot be covered-up anymore AND the Federal Magistrate was definitely a LEGAL EAGLE.

Ok LS, now you must teach all those lawyers who come to this site how to get into the REAL LAW and stop allowing their minds to be harvested by the establishment ... READ, READ, READ, this is what I found my husband did not want to actually do - read LAW he was challenged by, intellectually, in my understanding of REAL PROPERTY.

You LEGAL SCHNAUZER can now fly with the LEGAL EAGLES in how you SEE the words. This Federal Magistrate READS and understands this game which is being played and is out of control.

Open-up lawyers and LISTEN to others who perhaps although not schooled in 'higher education' (i.e., "graduate degree, JD"),

BUT, we can read in creative imaginative ways and SEE words that have been so manipulated to fit this agenda of OUR GOVERNMENT...

AND, therefore, we are truly finding the blind leading the blind since the courts are the ONLY remedy for our FREEDOM, or anarchy - worse, to be completely drug and mind controlled by the large corporations who want war as the only GDP.

Taking words and bastardizing them as a collegial ritualistic battle, while TWO (2) and how many more??? ... human beings are facing TWENTY (20) year prison terms due to a political agenda - well, our moral compass has been clearly lost.

I'm posting a separate article which explains my case and the case of every American.

Biloxi

Anonymous said...

You should see the June 26 CSPAN where Clemons speaks to the topic of selective prosecution of Democrats. He specifically said with regard to the Seigleman case that it is the most unfounded criminial prosecution in his entire career. He also said regarding Alice Martin that it was clearly about "the man" and "not about the crime."