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Wednesday, November 24, 2010

Why Is Federal Judge Stalling on Siegelman Ruling?

Don Siegelman

A federal judge has delayed ruling on whether the judge who presided over the Don Siegelman case should be allowed to rule on motions for a new trial.

Robert Hinkle, a U.S. District Judge in Florida, says he will wait until the U.S. 11th Circuit Court of Appeals has ruled on appeals filed by Siegelman and codefendant Richard Scrushy. Siegelman and Scrushy contend that U.S. District Judge Mark Fuller, who oversaw their trial in Montgomery, should not be allowed to continue hearing post-trial challenges.

What does it mean? It's hard to know for sure, but we think it might be a good sign for Siegelman and Scrushy. We also think it's a sign that the federal judiciary is trying to protect Fuller, one of its own rogue members.

The record in the Siegelman case is filled with grounds that require Fuller's recusal. In fact, the law requires Fuller to make that ruling on his own. But he shuffled it off to another judge. And now that judge, Hinkle, is shuffling his feet, seemingly in hopes that the 11th Circuit will take him off the hot seat.

This all is driven by the U.S. Supreme Court's ruling in June that vacated the judgment in the Siegelman case and ordered the 11th Circuit to review the case in light of the high court's findings on honest-services fraud in a case involving former Enron executive Jeffrey Skilling.

A case styled Yates v. United States, 354 U.S. 298 (1957) is likely to drive the 11th Circuit's review on Siegelman. Here is the key holding in Yates:

Constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory.

What does that mean in everyday language? Here's how we put it in an earlier post:

It's undisputed that the Siegelman jury was instructed on theories involving honest-services fraud. But the U.S. Supreme Court has found that theory now is legally invalid. Yates states that such an instruction, in essence, "muddies the water" of a case and raises issues of constitutional error.

If the jury was tainted by an instruction that now is unlawful, what happens next? Well, that is where Yates presents a mixed bag. Yates involved 14 defendants who had been convicted of conspiring to advocate the overthrow of the U.S. government. The U.S. Supreme Court wound up ordering acquittals for five defendants and new trials for the other nine.

The 11th Circuit already has shown that it is quite capable of botching any ruling on the Siegelman case. It's possible that the Atlanta-based court will find "harmless error" in light of the Skilling ruling and grant Siegelman/Scrushy neither an acquittal nor a new trial.

Our guess is that Robert Hinkle hopes the 11th Circuit will take the legal monkey off his berobed back by granting an acquittal. That way, he won't have to address all of the evidence that suggests Mark Fuller never should have presided over the Siegelman case in the first place.

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