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Monday, March 7, 2011

Are U.S. Appellate Courts Trying To Cover Up Bush-Era Crimes?

Sue Schmitz

A federal appellate court, for the third time, has rendered a "split decision" on an apparent political prosecution from the George W. Bush era--overturning convictions on some counts, while upholding others.

The latest example came last Friday when the U.S. Eleventh Circuit Court of Appeals in Atlanta released its ruling in the case of Sue Schmitz, a former Democratic state legislator in Alabama. The appeals court overturned Schmitz' convictions for theft concerning a program receiving federal funds, while upholding her convictions on mail fraud. Schmitz sentence has been vacated, with the case returned to district court for resentencing.

This is similar to what happened on the appeals of former Alabama Governor Don Siegelman (Eleventh Circuit) and Mississippi attorney Paul Minor (Fifth Circuit). What should we make of this pattern? Here is what I make of it: Federal appeals courts are engaged in a coordinated effort to cover up Bush-era political prosecutions and protect the rogue judges and prosecutors responsible for them.

As we noted in a previous post (multiple posts, actually), federal judges often are more interested in protecting the interests of the legal profession than in administering justice. By rendering split decisions on the Siegelman, Minor, and Schmitz appeals, they allow a thread of legitimacy to cling to the trial-court proceedings. That will make it more difficult for the victims of political prosecutions to ever receive justice in the civil arena, from filing lawsuits against those who were likely responsible.

We have studied the Siegelman and Minor cases extensively and shown that the appellate courts, by law, had to overturn the convictions entirely. They didn't, and got away with it, because no one in this country holds federal appeals courts accountable--except the U.S. Supreme Court, and it hears only a tiny fraction of the cases that come before it. As we know from Clarence Thomas' recent machinations, the nation's highest court is itself ethically challenged:

How the 11th Circuit Cheated Don Siegelman: A Summary

The Paul Minor Ruling: More Evidence of Our Crumbling Justice System

My research on the facts and the law in the Schmitz case has not been as detailed as it was in the Siegelman and Minor cases. But I strongly suspect the 11th Circuit's ruling of last Friday is unlawful; it unquestionably is nonsensical. Let's examine some of the nuttiness to be found in the Schmitz ruling:

* The Indictment of an Indictment--The 11th Circuit overturned the federal-funds convictions because the government's indictment on those counts sucked. The dignified justices did not use that exact language, of course. But they might as well have. Here is what they did say about it: "We hold that the allegations of fraud in the federal-funds counts are insufficient because they provide absolutely no factual detail regarding the scheme to defraud the CITY Program." (See page 26 in the ruling below.) "Absolutely no factual detail"? That's pretty much telling the prosecutors, "Your work sucks." Are we to believe that the prosecutors who butchered the indictment on the federal-funds counts absolutely nailed it on the mail-fraud counts, which were upheld? If so, I'm not buying it. And I suspect most sentient beings don't buy it either.

* The Flex-Time Fiasco--Did you know it can be a federal crime to seek a flexible work schedule? It can be in post-modern, Bush/Rove America. The mail-fraud convictions were upheld against Sue Schmitz largely because she sought a flexible work schedule that would allow her to serve in the legislature while fulfilling her work duties--and she used the U.S. mails to accomplish this dastardly scheme. We're not making this up. Here is language straight from the ruling: "To accomplish her fraudulent scheme, the indictment alleges, Schmitz obtained her job through 'illegitimate means' and received authorization to perform her job based on a 'flexible work schedule.'" (See page 24 in ruling.) What does "illegitimate means" mean? The ruling doesn't say, and we don't have a clue. Does the court cite any statutory or case law to support its finding that it's a federal crime to seek a "flexible work schedule" by "illegitimate means" (whatever those are)? Nope.

* Beyond a Reasonable Doubt?--Like many Americans, you probably think you cannot be convicted of a crime unless the prosecution proves its case "beyond a reasonable doubt." You've seen enough episodes of Matlock to know that's the law, right? But that apparently doesn't apply if you are Sue Schmitz, at least at the appellate level. My guess is that the jury was given the "reasonable doubt" instruction at trial. But once the jury has reached its verdict, no matter how wrongheaded it might be, "reasonable doubt" goes out the window. At least that's what the 11th Circuit tells us. Again, this goes to Schmitz' efforts to work out a flexible work schedule, through a letter to one of her supervisors, Dr. Cornell: "A reasonable jury could view the letter to Dr. Cornell requesting a flexible work schedule as a step in the fraudulent plot because it allowed Schmitz to conceal her scheme by making it more difficult for supervisors to determine just how little work she was doing for the Program." Does the prosecution have to prove this beyond a reasonable doubt? Nope, says the 11th Circuit. It just has to get a "reasonable jury"--which might be comprised of complete dunderheads--to believe it. (See pages 36-38 in ruling.) Remind me to never ask for a flexible work schedule.

* A Lesson In Legal Nitpicking--Hold onto your hats for this one. The 11th Circuit found that the district court unlawfully allowed the prosecution to ask Schmitz improper questions on cross-examination. (See pages 44-46 in ruling.) It also found that the prosecution made unlawful comments in closing arguments. (See page 49 in ruling.) These unlawful actions by prosecutors, at a critical stage in the proceedings, surely mean that the Schmitz convictions must be overturned completely, right? Well, not so fast. In an excruciating example of hair-splitting, the 11th Circuit found that the prosecutors committed "error" but not "plain error," which would have allowed the appellate court to make a correction. The justices admit that they have neither 11th Circuit nor U.S. Supreme Court precedent upon which to base their finding, so they are more or less guessing. (See pages 49-50 of ruling.) These are your tax dollars at work, folks.

Schmitz' attorneys could seek an en banc hearing before the entire 11th Circuit. Or they could see how the district court will handle resentencing. It's possible that Schmitz will be sentenced to time served and set free. But that will leave this question hanging: How in the name of Alan Shore was Sue Schmitz convicted and sentenced to serve time in the first place, on charges that would have to improve to be flimsy? How does someone go to federal prison for seeking a flexible work schedule?

Our guess is that the justices on the 11th Circuit bench do not concern themselves with such matters of right and wrong, facts and law. They simply want to tidy up the Bush DOJ messes and ensure that many Americans go on believing the myth that we have a justice system worthy of our trust.

And the justices can best do that by issuing rulings that admit the political prosecutions were largely bogus--but leave the impression that they had just a wisp of legitimacy.

Do the justices care that innocent citizens have spent time in federal prison and likely will be left with little recourse once they get out? Nah. The main thing is that the legal establishment stays firmly in place, producing large chunks of cash for lawyers and judges and precious little justice for the public at large.

Sue Schmitz appellate ruling

[Photo: al.com]


Ishmael said...

I have only one factoid to offer.

James Bybee of the OLC, who authored the torture memos with John Yoo, now sits on the 9th Circuit Court of Appeals.

Anonymous said...


Look carefully at the three criminals being granted special treatment. All three have something in common. Figure it out people, its not hard.

legalschnauzer said...


What "three criminals" are you talking about--and what "special treatment" are they being granted?