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Monday, December 14, 2009

Paul Minor Appellate Ruling Presents Good News and Bad News

The bribery convictions in the case of Mississippi attorney Paul Minor and two codefendants have been overturned by the U.S. Fifth Circuit Court of Appeals. That is good news because bribery was the primary charge in the case.

But all other convictions in the case, including those for honest-services fraud, stand. And that is bad news because, under the law, all of those convictions should have been overturned, too. Worse, by upholding these bogus convictions, the Fifth Circuit signals that it is trying to attach some legitimacy to the Minor prosecution, essentially providing cover for the corrupt activities of the federal judge and prosecutors in the case.

Scott Horton, legal-affairs contributor for Harper's magazine, writes that the U.S. Supreme Court appears set to rule that the honest-services fraud statute is unconstitutional. If that happens, all of the convictions in the Minor case would be overturned and the defendants--Minor and former state judges Wes Teel and John Whitfield--set free.

But it should not come down to that.

U.S. District Judge Henry Wingate butchered the jury instructions and the evidentiary rulings throughout the Minor case, and the Fifth Circuit lets all of that stand. Why would the appellate court do that? Here's our best guess: Federal appeals judges have a vested interest in perpetuating the myth that trial judges and prosecutors are relatively competent--and honest. The appellate court does not want the public to know that Wingate and U.S. Attorney Dunn Lampton handled the Minor case in a grotesquely corrupt fashion.

So what does the appellate court do? It throws the Minor defendants a bone on one issue, while papering over the unlawful actions of Wingate and Lampton on other issues. As Horton writes, the end result might be freedom for Minor, Teel, and Whitfield--and that certainly is a good thing. But unless some governmental body conducts a thorough investigation, the public will not know the truth--that the defendants never should have been prosecuted or convicted in the first place, and it only happened because of a corrupt federal judge and prosecutor.

How can we say that with certainty? The Minor case, on the surface, appears complex. The appellate ruling covers 35 pages and touches on all kinds of tangential issues. But the case boils down to a relatively simple question.

The government alleged that Teel and Whitfield handled two cases involving Minor's firm--Archie Marks and Peoples Bank--in a corrupt fashion. They did so, according to the government, because they had received financial favors from Minor, which are legal under Mississippi law.

So the key question in the Minor case was this: Did Teel and Whitfield actually rule unlawfully, and corruptly, in the two underlying cases? As we have shown in multiple posts, they did not. Teel and Whitfield ruled correctly based on the law and facts before them, so Paul Minor and his firm received no unlawful benefit in those cases.

How on earth did a jury convict three men for a crime they clearly did not commit? It happened because Judge Henry Wingate presented the jury with instructions that did not come close to matching the actual law.

In an earlier post, we cited this critical portion of Wingate's jury instruction on honest-services fraud:

"You may find specific criminal intent even though you may find that the rulings were legal and correct, that the official conduct would have been done anyway, that the official conduct sought to be influenced was lawful and required by law, and that the official conduct was desirable or beneficial to the public welfare."

There's only one problem with that jury instruction: It isn't correct under the law, not even close. Henry Wingate simply pulled it out of his . . . well, you get the idea.

What does the real law say? In order to have a conviction for honest-services fraud, the public must actually be deprived of an official's honest services. The key case on this issue is U.S. v. Sawyer, 85 F. 3d 713 (1996). Sawyer also was cited in U.S. v. Walker, 490 F. 3d 1282 (2007). Consider this from Sawyer:

The McNeive and Rabbitt cases illustrate that although a public official might engage in reprehensible misconduct related to an official position, the conviction of that official for honest-services fraud cannot stand where the conduct does not actually deprive the public of its right to her honest services, and it is not shown to intend that result.

Teel and Whitfield ruled correctly in the cases involving Minor's firm, so the public was not deprived of anything--and there clearly was no intent to deprive the public of anything. Their convictions on honest-services fraud cannot stand.

A similar principle was at work in the Don Siegelman case in Alabama. Siegelman took a campaign contribution from former HealthSouth CEO Richard Scrushy and then appointed Scrushy to a hospital-regulatory board. But Scrushy already had served on the board under three previous governors and clearly was qualified to perform his duties. Therefore, the public was not deprived of Siegelman's honest services.

That's just one of many connections between the Minor and Siegelman cases--and they extend into the appellate realm.

In the Minor case, the Fifth Circuit overturned the bribery convictions but upheld honest-services fraud convictions. In the Siegelman case, the 11th Circuit did just the opposite--it upheld the bribery conviction against Siegelman but overturned the honest-services fraud conviction.

What does this tell us? We can only conclude that there is a concerted effort in the federal judiciary to hide the true skulduggery that took place in these two cases.

Defendants in the Minor and Siegelman cases might eventually be set free. But that will not answer this critical question: How on earth did they wind up in prison in the first place?

Appellate judges clearly do not want folks like you and me to know the answer to that question. I don't pretend to be an expert on separation of powers, but my educated guess is that it's time for Congress to step into the fray.

Congress controls the purse strings of the federal judiciary, and those strings need to be tightened considerably until a serious investigation is conducted and the truth comes out on political prosecutions during the George W. Bush era.

What will represent truly good news on the Paul Minor case--and the Siegelman case, for that matter? That will come when certain federal judges and prosecutors are impeached and/or marched off to federal prison--where they belong.

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