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Monday, June 29, 2009

The Cheating of Don Siegelman, Part III

We already have shown that the U.S. 11th Circuit Court of Appeals botched its Don Siegleman ruling on two key issues: the statute of limitations and the fundamentals of bribery law.

Let's now turn our attention to the jury instructions in the Siegelman case.

To put it simply, the trial court gave jury instructions that were wrong, that did not accurately reflect the law. The 11th Circuit's opinion essentially admits this. But the appellate judges seem to be saying, "What the hell, the instructions were in the ballpark. That's all that's needed. And nothing much is at stake here anyway. Only two men, who committed no crime, possibly going to prison for the rest of their lives. Let it rip. Next!"

So much for "guilty beyond a reasonable doubt." In this case, thanks to bogus jury instructions, Don Siegelman and Richard Scrushy were convicted of a phantom crime, one that doesn't exist under the law.

Here's what's so wacky about reviewing this case: The 11th Circuit and Siegelman's team agree that McCormick v. United States is the controlling law. And they agree on what McCormick says. The 11th Circuit even correctly cites what the law is, noting that the Supreme Court requires "more for conviction than merely proof of a campaign donation followed by an act favorable toward the donor." The 11th Circuit goes on to state:

To avoid this result, the Court 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.”

That's what the jury instruction should have been. But both the 11th Circuit and the Siegelman team, citing from the official record, say that's not what it was.

Here is how the jury instruction on bribery read, in pertinent part:

A Defendant does not commit a crime by giving something of value to a government official unless the Defendant and official agree that the official will take specific action in exchange for the thing of value.

As you can see, the instruction given by trial judge Mark Fuller did not require an explicit agreement. And it's not a correct statement of the law. In fact, it's not even all that close.

The Siegelman team points out the fundamental problem of Fuller's jury instruction on bribery:

The flaw here . . . is that the trial court did not tell the jury that the quid pro quo agreement had to be explicit. Instead the instruction allowed the jury to believe that an implied-in-fact “agreement,” in the sense of the existence of parallel though unspoken expectations, was enough to make out the crime. But in cases where the McCormick standard applies, as we have shown, unspoken and inferred mutual expectations would not be enough.

The 11th Circuit blithely claims that a quid pro quo instruction was given. But the McCormick standard of an "explicit" agreement, which the 11th Circuit admits multiple times is the controlling law, clearly was not given.

And the 11th Circuit ignores its own binding precedent, U.S. v. Davis, 30 F.3d 108 (11th Cir. 1994), which was decided three years after McCormick.

The finding in Davis, which originated in the Northern District of Alabama, could not have been more clear:

Because the district court failed to charge Davis's jury as to the necessity of finding an explicit promise before the jury properly could convict--and indeed informed the jury that ‘a specific quid pro quo is not always necessary for a public official to be guilty of extortion’--appellant's conviction is due to be REVERSED and the case REMANDED to the district court for further proceedings consistent with this opinion.

J.L. Edmondson, one of the three judges on the Siegelman panel, also was on the Davis panel. How's that for irony? Edmondson apparently gets a kick out of contradicting himself.

The 11th Circuit apparently tries to muddy the waters by citing Evans v. United States, 504 U.S. 255, 258 (1992). In Evans, the 11th Circuit writes, the Supreme Court approved the following jury instruction and said it satisfied the quid pro quo requirement of McCormick:

However, if a public official demands or accepts money in exchange for [a] specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the [federal extortion statute] regardless of whether the payment is made in the form of a campaign
contribution.

The 11th Circuit's reasoning, however, has several flaws:

* The Supreme Court said the jury instruction in Evans was "sufficient." But that's not the jury instruction that Fuller gave in the Siegelman case. So Evans doesn't apply.

* It's unclear in the Evans case if the alleged bribe was considered a campaign contribution. Evans claimed that it was, but appellate documents do not make it clear that indeed it was. It's undisputed that the Scrushy donation in the Siegelman case was a campaign contribution. Again, Evans is not apposite to the Siegelman case.

* Evans did not challenge the need for jury instructions that required an "explicit" agreement; that was never an issue in his appeal. He challenged the jury instructions on other grounds. Again, Evans is not apposite to the Siegelman case.

* Evans is a strange case, which came from a badly divided Supreme Court. It seems similar to the 2000 Bush v. Gore ruling, in which the court said its holdings applied only to the case before it, not subsequent cases. Nothing in the Evans' opinion indicates that it overruled McCormick.

* In fact, Evans clearly did not overrule McCormick. As the Siegelman team shows, the 1994 Davis opinion, by the 11th Circuit, overturned a trial-court finding because the jury instructions did not meet the McCormick standard for an "explicit" agreement.

How to describe the 11th Circuit's action, when it can't even agree with its own earlier rulings? The word "duplicitous" comes to mind. The three-judge panel is engaging in clear double talk, and the justices aren't all that artful about it.

To sum it up, they say:

* McCormick, as Siegelman contends, is the controlling law;

* McCormick, as Siegelman contends, requires an "explicit" agreement for a conviction on federal bribery charges;

* The trial court's jury instructions are not the same as the McCormick standard--in fact they aren't even all that close--and the 11th Circuit's own opinion makes this clear.

* In spite of this, the 11th Circuit essentially says, "We're going to let it go anyway. And we're going to try to confuse you by throwing the Evans case into the fray."

So, we've shown that the 11th Circuit screwed up the Siegelman appeal on three critical issues. Are we done? Oh no, there is more to come.

(To be continued)

Previously . . .

* Here Is How An Appellate Court Cheated Don Siegelman

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

* The Cheating of Don Siegelman, Part II (fundamentals of bribery)

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