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Thursday, August 27, 2009

Alabama Produces a New Kind of Bogus Prosecution

You have heard of political prosecutions, as practiced by the U.S. Department of Justice under George W. Bush. Now let us introduce you to a "financial prosecution."

That is the best term we can think of to describe what is happening to Edmond H. "Eddie" Smith IV, a well-known Mobile, Alabama, outdoorsman. Smith has been a federal prisoner for more than seven months, even though a handful of public documents show that he did not commit the crime with which he was charged.

Smith is at the heart of a story we have dubbed "a non-political version of the Don Siegelman case." And it is a cautionary tale--showing that Barack Obama might now be president, but Bush-like shenanigans still are taking place in the Justice Department.

Why do we call the Smith case a "financial prosecution"? Well, Smith appears to be a non-political sort. He is known for his hunting and fishing, a man more comfortable with guns and tackle boxes than campaigns and legislation.

So why did Smith become a target of a Bush-led Justice Department? Evidence suggests it's because he held control over an attractive piece of property in Mobile, one that has vast potential for commercial and/or residential development.

We've already seen how a lust for political power caused Don Siegelman to become a target of certain Alabama conservatives. It appears that good, old-fashioned greed prompted certain Alabama conservatives to target Eddie Smith.

Like a South Alabama fishing hole, the Eddie Smith story is murky. It raises many questions, with few clear-cut answers: What is this piece of property, and what makes it so alluring? How did Eddie Smith come to control the property? Who are the people who want to wrest it from Eddie Smith, and what was their plan for pulling it off? Will they get away with it?

We will address all of those questions in upcoming posts. First, let's establish this: Eddie Smith is a big man, a former University of Alabama football player with an outsized personality that has led him into some legal difficulties, of both a civil and criminal (misdemeanor) nature. But he is being held in the Mobile County Jail for a federal crime that he did not commit. And it's relatively easy to prove it.

We can explain it in a few steps:

(1) In late 2007 or early 2008, Smith was charged with unlawful possession of a pistol under Alabama state law. On February 13, 2008, Smith pleaded guilty to a violation of Code of Alabama 13A-11-72(b) and was sentenced to six months of imprisonment;

(2) Code of Alabama 13A-11-72 is a "hybrid statute," meaning it authorizes a range of punishment both below and above the dividing line that separates a misdemeanor from a felony. What is that dividing line? Code of Alabama 13A-1-2(9) defines a misdemeanor as "an offense for which a sentence to a term of imprisonment not in excess of one year may be imposed." Statutory law, case law (Newberry v. State, 493 So. 2d 995), and court records indicate that Smith pleaded guilty to a misdemeanor;

(3) On November 21, 2008, Mobile County Sheriff's deputies searched Smith's residence and seized 780 rounds of ammunition. Smith was charged with a violation of 18 U.S. Code 922(g)(1), which reads:

It shall be unlawful for any person--(1) who has been convicted in any court of a crime punishable by imprisonment for a term EXCEEDING one year . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.


(4) The federal law could not be more clear: It applies only to an individual who has been convicted of a felony--a crime punishable by imprisonment for a term exceeding one year.

(5) The federal indictment predicated the charge against Smith on his guilty plea in the state case on February 13, 2008. But that presented a slight problem for the feds: Smith had pleaded guilty to a misdemeanor. That meant the federal statute did not apply to him. That meant it was not unlawful for him to possess the ammunition that was seized from his home.

How did the federal government manage to bring a prosecution that is bogus on its face? How did the feds get a conviction in such a case?

The answer to the first question is simple: The Bush Justice Department brought the case.

The answer to the second question also is simple: The judge in the Smith case is a Bush appointee who has an awful lot in common with Mark Fuller, the judge who ramrodded the Don Siegelman case.

Much more on that in upcoming posts.

(To be continued)

1 comment:

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