Two recent U.S. Supreme Court decisions possibly have altered the foundation upon which convictions in the Don Siegelman case were built, according to statements from appellate judges at a hearing yesterday in Jacksonville, Florida.
Three judges from the U.S. Eleventh Circuit Court of Appeals appeared ready to see the convictions of Siegelman and codefendant Richard Scrushy in a new light, according to a report from John Schwartz at The New York Times. One of the judges called the convictions "problematic" in light of new developments at the nation's highest court.
Attorneys for Siegelman, the former Democratic governor of Alabama, and Scrushy, the former CEO of HealthSouth, argued for a reversal of the convictions or, at the least, a new trial. One of the judges appeared to agree with them. Reports Schwartz:
Judge J. L. Edmondson asked if the jurors in the original trial had been given alternate ways to convict Mr. Siegelman and Mr. Scrushy, and suggested that if some of those grounds for conviction had been invalidated, “that’s problematic.” Judge Edmondson asked if “there should at least be a new trial.” It is not clear when the panel will issue an opinion in the case.
Joining Edmondson on the panel were Judge James C. Hill and Judge Gerald Bard Tjoflat. All three are Republican appointees.
Much of yesterday's hearing focused on two recent Supreme Court cases--Skilling v. United States and Citizens United v. FEC. The Skilling ruling, which involved a narrowing of the federal statute on honest-services fraud, might be most critical to the Siegelman appeal.
In fact, Judge Edmondson probably made his "problematic" statement because jurors in the Siegelman case received instructions on an honest-services law that now has been altered. That raises constitutional issues, as explained in an important 1957 Supreme Court case styled Yates v. United States, 354 U.S. 298.
If Siegelman and Scrushy receive justice for what appears to be a political prosecution from the George W. Bush era, the Yates case probably will be key. Here is how we explained Yates' connections to the Siegelman case in an earlier post:
The issues remaining against Siegelman involve bribery and obstruction of justice. So how could last week's Supreme-Court ruling on honest-services fraud--involving former Enron executive Jeffrey Skilling and former media magnate Conrad Black--help Siegelman?
Well, that's where the Yates case enters the picture. Justice Ruth Bader Ginsburg cited the case in her majority opinion last week. And here is the key general finding 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? The Siegelman jury essentially was tainted by jury instructions that now are invalid. That means the defendants, at the very least, should receive a new trial. From our 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.
Here is the reference to Yates in Ginsburg's opinion in the Conrad Black case, which is styled Black v. the United States:
On appeal, Defendants urged the invalidity of the jury instructions on honest-services fraud. Under the rule declared by this Court in Yates v. United States, 354 U. S. 298, 312 (1957), a general verdict may be set aside “where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Relying on that rule, Defendants urged reversal of their mail-fraud convictions.
Does the Yates case, in conjunction with Skilling, mean Siegelman and Scrushy are in the clear? Not exactly:
While this all sounds like good news for Siegelman and Scrushy, here is one major word of caution: Yates is subject to a "harmless error" analysis. In other words, on remand, the 11th Circuit could find that the invalid instruction on honest services did not have a major impact on the verdict. Given that the 11th Circuit already has proven unfriendly to the defendants in the case, that certainly could happen.
All hope for Siegelman and Scrushy, however, does not rest on the honest-services fraud issue. Also in play is the First Amendment, as recently examined in Citizens United. Schwartz reports that two of the judges seemed persuaded by arguments from the Siegelman/Scrushy team on the First Amendment:
Judge Edmondson said that political contributions were an essential part of participating in the political system, and that some benefit for the contributor was often implied, at the very least. “American politics does run, to a large degree, on money,” he said. “People have to ask for money, and people have to give money. America doesn’t want to chill that.”
Judge Hill agreed. The case, he said, “runs smack into the First Amendment.”