A federal appeals court might have unwittingly provided insight yesterday about its muddled handling of appeals in the Don Siegelman case.
The ruling from the U.S. Eleventh Circuit Court of Appeals had been widely anticipated for several reasons: (1) Following a U.S. Supreme Court ruling in a case involving former Enron executive Jeffrey Skilling, federal law on both honest-services mail fraud and bribery--the two key issues in the Siegelman case--has been shifting; (2) The Eleventh Circuit's ruling was expected to provide some clarity on important criminal issues in a changing landscape; (3) Siegelman is the most high-profile victim of a Bush-era political prosecution, and the former governor of Alabama figured to receive at least some relief from convictions reached in a Montgomery, Alabama, trial court.
Alas, yesterday's ruling from a three-judge panel of the Eleventh Circuit accomplished almost nothing. The judges provided no insight on Skilling or its impact on bribery convictions. And they provided zero relief for Siegelman. The only relief came for codefendant Richard Scrushy, who had two of his convictions on honest-services fraud reversed.
That means the defendants likely will turn to the U.S. Supreme Court, wasting more public resources--not to mention their own personal resources--on a case where the convictions, by law, cannot stand. We have known for a long time that the three-judge panel in the Siegelman case--J.L. Edmondson, James C. Hill, and Gerald Bard Tjoflat--is corrupt. We spelled that out in a multi-post series, which concluded with the following summary:
How the 11th Circuit Cheated Don Siegelman: A Summary
Yesterday's ruling reveals that the three judges also are lazy. Huge portions of the ruling are lifted word-for-word from their previous order, which was issued on March 6, 2009. And we're not talking about just the section dealing with factual aspects of the case. Large segments of the legal analysis have not changed at all. It's as if all of the new briefs, and the oral argument conducted in Jacksonville, Florida, never took place.
A comparison of the two rulings--the one from yesterday and the one from March 2009--strongly suggests that the three judges had a predetermined outcome on the Siegelman/Scrushy case, and nothing was going to change their minds, not even directives from the U.S. Supreme Court.
The case was back before the Eleventh Circuit only because the nation's highest court had ordered a review in light of the Skilling ruling. Edmondson, Hill, and Tjoflat apparently could not be bothered by Skilling and the U.S. Supreme Court. They swatted the issue away with barely a mention. From yesterday's opinion:
In Skilling v. United States, 561 U.S. ___, 130 S. Ct. 2896 (2010), the Court held that Congress intended these statutes to reach only those schemes to defraud the public that are based upon allegations of bribery and/or kickbacks. After Skilling, therefore, prosecutions based upon any other theory--for example, self-dealing--are not permitted. The defendants contend that Skilling, and other errors, require that their honest services convictions be overturned. . . . Counts 6 and 7 charge that Scrushy’s bribery of Siegelman deprived the public of the right to the defendant’s honest services. Thus, there is no Skilling error here--a bribery (or kickback) scheme is required under Skilling and one was alleged.
Skilling, of course, is not just about what the government alleges. It also is about what the government must prove. From the Skilling opinion, written by Justice Ruth Bader Ginsburg:
The "vast majority" of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes.
It's not enough for the government to allege that Siegelman and Scrushy engaged in a bribery or kickback scheme. The government must also prove it.
And the government only received a conviction on bribery because of a flawed jury instruction from trial judge Mark Fuller. Without getting into too much legalese, this involves an analysis of the McCormick and Evans cases, which we examined previously. In fact, we clearly showed that, based on the actual law, the jury instruction was unlawful, and you can check it out at the following link:
The Cheating of Don Siegelman: Part III
In yesterday's ruling, the Eleventh Circuit stuck by its earlier contention that the jury instruction was "sufficient." In essence, the three-judge panel found that the jury instruction was "in the ballpark," and that's close enough for a criminal conviction. Any American who does not find that appalling, should be checked for signs of a functioning conscience.
What is the three-judge panel really up to? We suspect a major clue comes from page 38 of yesterday's opinion, where the judges heap praise on the Siegelman/Scrushy jury:
This sort of split verdict is itself evidence that the jury considered the charges carefully and individually, addressed the strength of the evidence on each charge, and reached a reasoned conclusion. See United States v. Dominguez, 226 F.3d 1235, 1248 (11 Cir. 2000) (making these comments in the context of allegations of premature jury deliberations)
The judges make this point at least twice in the ruling, that a split verdict is a sign of careful consideration on the part of the jury. That is curious because the judges themselves are rendering all kinds of split verdicts, as if they are trying to tell the public, "Hey, look, we examined this case closely."
Split verdicts, of course, do not necessarily mean that a jury or judicial panel gave careful consideration to the matters at hand. They can simply mean that the jury or judges were incompetent, lazy, confused--or some combination of all that.
The judicial panel's regurgitation of huge chunks from its earlier ruling indicate it did not give careful consideration to the matters at hand. And by blowing off Skilling, they essentially are saying to Ruth Bader Ginsburg, "Hey, up yours, lady!"
Did we mention that Americans should be appalled by these three judges on the Eleventh Circuit panel?
Here is all you probably need to know about these three "jurists." It tells you that Siegelman and Scrushy never had a chance with this panel. We spelled it out in a post at the following link:
Siegelman Team Probably Expected to Get Cheated on Appeal
Our post borrowed heavily from a piece by Raw Story's Muriel Kane about the three judges. Here is a key excerpt from out post:
Muriel Kane has written an excellent overview of the three judges on the Siegelman panel. She notes that Gerald Bard Tjoflat and James C. Hill both originally were appointed to the federal bench by Richard Nixon and to the appellate court by Gerald Ford. The third, J.L. Edmondson, was appointed first by Ronald Reagan and named chief judge of the 11th Circuit by George W. Bush in 2002.
Let me repeat: One of the Siegelman panelists owes his title as chief judge to George W. Bush--and it's reasonable to assume that Karl Rove played a hand in making that appointment!
Gee, I can't imagine why anyone would raise concerns about the impartiality of this panel.
We specifically noted Judge Tjoflat's ties to Republican strategist Karl Rove:
Perhaps most alarming is the role Tjoflat played in Karl Rove's ascendancy to political prominence. Tjoflat was part of a three-judge panel that weighed in on the 1994 election contest for Alabama Supreme Court chief justice between Republican Perry Hooper Sr. and Democrat Sonny Hornsby.
The panel upheld a lower-court ruling that threw out 1,700 unwitnessed absentee ballots, making Hooper the winner.
Karl Rove was intimately involved in the Hooper/Hornsby race, and his efforts to get Hooper elected under controversial circumstances signaled a sea change in Alabama courts, which once were all Democratic and now lean way to the right.
Rove used his success in the Hooper/Hornsby race as a springboard to national political prominence.
The only way the deck could have been stacked more against Siegelman would have been for the panel to include William Pryor, the former Alabama attorney general who initiated the state investigation of Siegelman. Pryor did that, of course, after winning a campaign that was managed by . . . Karl Rove.
The bottom line? The three-judge panel on the Siegelman/Scrushy appeal has been hopelessly tainted from the outset. In their laziness, the judges show that they gave little consideration to matters of profound importance to the American public.