Federal prosecutors apparently intend to retry the Alabama bingo case, even though a juror in the first trial said the panel voted overwhelmingly to acquit across the board.
U.S. District Judge Myron Thompson yesterday set the second trial for October 3. Prosecutors are proposing three separate trials this time, even though they opposed defense requests for separate trials earlier. The first trial ended last week with full acquittals for two defendants and a mix of not guilty and no decision for the other seven defendants.
What to make of all this? A leading legal commentator says GOP felon Jack Abramoff maintains an ugly grip on Alabama politics. And in a twisted piece of irony, the U.S. Department of Justice (DOJ) seems to be supporting Abramoff-style skulduggery.
A reasonable person might expect federal prosecutors to be dissuaded by the fact that jurors in the first trial voted 8 to 4 for across-the-board acquittals. But that reasonable person would be wrong. One can only wonder what Obama attorney general Eric Holder is thinking--or if he is thinking at all.
One round of humiliation apparently is not enough for the Obama Justice Department. They want more. An expensive second federal trial, on charges that clearly are driven by Republican politics, would come as the president is being attacked for excessive spending . . . by Republicans.
Raise your hand if the DOJ's actions make zero sense to you. Raise your hand if you hope that a genuine progressive runs a primary campaign against the incredible shrinking Democrat in the White House. (Both of my hands are up.)
Scott Horton, legal-affairs contributor at Harper's, says the Alabama bingo case is the DOJ's "highest-profile political litigation since its botched prosecution of former Alaska Senator Ted Stevens." How bad does the Obama DOJ look in all of this? Horton lays it out in a piece titled "Justice Department Rolls Snake Eyes in Alabama Gambling Trial." Writes Horton:
The prosecution showed Justice to be firmly aligned with Alabama’s then-governor, Republican Bob Riley, who had leveled the initial vote-buying accusations during a heated election-time political debate over gambling issues. Assistant Attorney General Lanny Breuer touted the case against the Alabama politicians as “astonishing” when he announced the arrests. The jury, however, turned out to be quite unimpressed with the evidence offered.
How unimpressed were the jurors? Teresa Tolbert, a rural mail carrier who spent 10 weeks serving on the bingo jury, said it would have been hard for jurors to be more unimpressed:
In a phone interview with The Associated Press, Teresa Tolbert said she was among those favoring acquittal on all charges. She said federal prosecutor Justin Shur told the jury in his opening statement that wiretapped phone calls and secretly recorded meetings would tell a story of greed and corruption at the Alabama Legislature, but the tapes never lived up to his billing.
"From the very beginning when we were listening to the tapes, I was like, 'Surely this can't be all they have.' I kept waiting and waiting," she said.
Prosecution witnesses were almost as ineffective as the tapes, Tolbert said, and she predicted it would be difficult to get a conviction in a retrial:
(Tolbert) said three people who pleaded guilty and testified for the prosecution -- Country Crossing casino developer Ronnie Gilley and his lobbyists, Jarrod Massey and Jennifer Pouncy -- lacked credibility. Gilley and Massey came across as arrogant rather than repentant about their admitted law breaking, she said.
She recalled one moment in Gilley's testimony that damaged his credibility.
"One of the jaw-dropping moments in his testimony was when he said some powerful Democrats wanted him to run for governor, but he couldn't remember who," she said.
Three Republican legislators who assisted the FBI did not fare any better, in Tolbert's eyes:
Tollbert said three Republican legislators who helped the FBI with its investigation -- Sen. Scott Beason of Gardendale, Rep. Barry Mask of Wetumpka and former Rep. Benjamin Lewis of Dothan -- "had obvious political motivations."
In the trial, the jury heard portions of a tape recording Beason made in a private meeting with Republican legislators where they talked about strategy for the 2010 election, when the Republican Party was trying to gain control of the Legislature. The jury heard one snippet where the Republicans discussed how the gambling legislation would go on the November 2010 ballot if approved by the Legislature and that would bring out more Democrat-leaning black voters, who favored gambling, and would hinder the GOP's efforts.
The legislation didn't go on the ballot, and the GOP won control of the Legislature.
Tolbert, who served as the jury's computer operator during deliberations, said the panel listened to Beason's entire two-hour tape during the deliberations, and it persuaded them that politics was involved in the case.
"Is there anybody in Alabama who doesn't think that?" she said.
Isn't it interesting that an everyday American can easily spot a political prosecution, but brainiacs in the Obama administration apparently cannot?
That's not to say that it will be impossible for the feds to get convictions the second time around. After getting a much closer view of our "justice system" than I ever wanted over the past 10 years, I am convinced that juries can easily be fixed. In our system, all it takes is one tainted juror to befoul a trial. And in low-profile cases, I suspect many jurors can be swayed by a "plant," caving in just to rid themselves of jury duty and get back home.
The "plant," I suspect, can be particularly effective if he or she is the foreman. In fact, I'm not convinced that the first bingo jury was 100 percent pure. Tolbert reveals that the jury's only man was the foreman--and I find that curious. I've talked over the years with a number of friends who served on juries, and every one of them said that no one wanted to serve as foreman. One friend told me that he finally volunteered to do it after everyone else made it clear they wanted no part of the job.
Here is Tolbert's explanation of the foreman selection:
"He had to spend all summer with 16 women. We had to give the poor guy something."
I like Teresa Tolbert. She sounds like the kind of thoughtful, sensible, down-to-earth person I would want on my jury--if I had to have one. She also sounds fundamentally honest, and her quote reveals something unusual about the jury foreman--at least to my ears. It indicates that the lone male on the jury wanted to be the foreman. If the others "gave" the position to him, seemingly as a reward, that tells me that he wanted it. And my informal research indicates its very unusual for someone to actually want the foreman's job.
Did the foreman vote to convict? I would bet the mortgage that the answer is yes. Did the foreman manage to sway three others to vote his way, with all of them refusing to budge? Again, I would bet the answer is yes. Did the foreman and his allies pretty much ensure that the jury would hang on some counts, against some defendants? Hmmmm.
Do my suspicions mean the foreman was tainted or that he did anything improper? Of course not. In fact, I don't know how he voted at all. But I have observed more than one jury in recent years--one in a case involving me, one where I was an observer--and neither case came even close to being decided correctly, based on the facts and the law. To be blunt, both jury decisions were flat-out stupid and did not even meet the common-sense test. I do not believe the jurors, as individuals, were stupid. But I did come away with a strong suspicion that juries can be manipulated. And my guess is that it happens way more than most of us would ever dream.
A tainted jury might be the prosecution's only chance for convictions the second time around. Maybe that's what they are counting on. Scott Horton, for one, seems surprised that prosecutors would want to wade into this swamp a second time:
While prosecutors are free to retry the defendants who were not fully acquitted, the acquittals will greatly complicate that process, and the poor result with the first jury suggests that the effort might yield even more embarrassing results.
How nasty is the swamp? Horton gets to the big picture, noting that the Alabama bingo controversy is driven largely by actions connected to GOP felon Jack Abramoff. In a sense, the Obama DOJ is siding with the Abramoff crowd. That truly is a mind-boggling prospect. But Horton spells out the pro-bingo perspective in Alabama, and shows that the DOJ's pro-Abramoff slant is real:
The defendants did not deny that the Alabama bingo industry had mounted an intense lobbying effort, but they argued that the real conflict was between Alabama’s homegrown gambling industry and Mississippi’s Indian-casino gambling industry, which has thrived in part by luring Alabamans across the state line. The Choctaw, the primary tribe involved in Mississippi Indian casino gambling, were aggressively represented by Republican campaign consultant Jack Abramoff, who enlisted a number of prominent Republican officeholders in his efforts. Abramoff, you might recall, was released from prison last summer after serving three and a half years of a six-year sentence for mail fraud and conspiracy; one of his principal business partners, Michael Scanlon, Bob Riley’s former press secretary, was sentenced to 20 months for his role in the Abramoff operations this February.
Abramoff exercised a suspicious amount of influence on the Justice Department in all of his dealings, including in his work on behalf of the Choctaw. In one prime example, the tribe was assisted in procuring funds for a new jail by a senior Justice official whom Abramoff had given valuable perks. While the Choctaw were being represented by Abramoff, they also funneled at least $13 million into Riley’s 2002 election campaign. The suppression of the Alabama bingo gambling industry, and the Justice Department’s prosecution of those associated with it, greatly benefited Mississippi’s Indian casino gambling operations by putting their principal competition out of business. In a sense, therefore, the bingo prosecution forms a coda to the tale of “Casino Jack” Abramoff, with the Justice Department playing a murky and controversial ongoing role.