Why were gambling magnate Milton McGregor and five other defendants found not guilty on all charges last week in the federal bingo trial in Montgomery? Why were former Governor Don Siegelman and former HealthSouth CEO convicted almost six years ago in the same court, on facts and law that were remarkably similar to those in the bingo case?
Reporter Kim Chandler used roughly 80 column inches in Sunday's Birmingham News to address those questions. But in two stories that took up almost all of one page and a nice chunk of another, Chandler never addressed the No. 1 reason the cases had radically different outcomes. (See the stories here and here.)
Comparing two criminal trials is tricky because they often come with multiple variables, including different defendants, different prosecutors, different defense lawyers, and different jurors. But the most important difference in the Siegelman and McGregor cases was the most obvious: They had different judges.
Siegelman and Scrushy had the misfortune to draw U.S. District Judge Mark Fuller, a George W. Bush appointee who had been on the federal bench for less than four years at the time of trial. McGregor and his codefendants had the good fortune to draw U.S. District Judge Myron Thompson, a Jimmy Carter appointee who has served on the bench for almost 32 years.
The experience factor is not the biggest difference between Fuller and Thompson. I have been around judges enough to know that an inexperienced judge can be every bit as fair and competent as a veteran judge. The key factor is not experience, but ethics (and respect for the law). Thompson has a huge edge over Fuller in both of those critical areas--and that's the No. 1 reason McGregor and Co. were acquitted while Siegelman and Scrushy still are battling to overturn their unlawful convictions.
A legal textbook could be written, I feel certain, on the different ways Thompson and Fuller handled their respective trials. But it really boils down to one issue: jury instructions. Many citizens probably figure that jury instructions should be relatively simple; after all, we expect a judge to know the applicable law and be able to communicate it to jurors. How hard could it be? Well, it isn't that hard, but trial judges have considerable discretion in the preparation of jury instructions.
That's why a judge with a political axe to grind--and considerable evidence suggests Fuller had one against Siegelman--can tailor jury instructions that strongly favor the prosecution. That's exactly what Fuller did, issuing jury instructions that differed in key respects from the actual law. That meant Siegelman and Scrushy wound up being convicted of a "crime" that does not exist under the law.
Thompson, on the other hand, gave jury instructions that matched longstanding federal precedent for bribery in the context of campaign contributions. The McGregor jury, in other words, deliberated the case based on the actual law, while the Siegelman jury did not. That is the No. 1 reason for the different outcomes.
That should be deeply disturbing to all citizens, especially given our constitutional system that is supposed to guarantee equal protection under the law. The two Alabama "corruption" trials did not render anything close to equal protection.
If anything, the chances of convictions should have been stronger in the McGregor case than in the Siegelman case. After all, the McGregor prosecutors did have tape-recorded evidence that showed various defendants discussing possible campaign contributions and votes on electronic-bingo legislation. The Siegelman prosecutors offered almost no evidence of a "corrupt agreement," the key component in a federal bribery case.
Both sides, in both cases, agreed the binding precedent in a bribery case involving campaign contributions is McCormick v. U.S., 500 U.S. 257 (1991), which holds:
. . . only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.”
You will notice that the crux of the finding in McCormick is an "explicit promise." At its core, federal bribery is more about agreement than about an act. And that agreement must be explicit.
Fuller, in his jury instructions, turned the law on its head. He was relatively subtle about it, but a close reading shows that he got it wrong--and almost certainly did it intentionally. Here is what Fuller told the Siegelman jury:
A Defendant does not commit a crime by giving something of value to a government official unless the Defendant and official agree that the official will take specific action in exchange for the thing of value.
In Fuller's version of the law, the focus is on the action. It must be "specific," while the agreement . . . well, it can be loosey goosey; it doesn't have to be explicit.
Now, let's consider the jury instructions that Thompson gave in the bingo trial. (You can read the full instructions at the end of this post.) The key portion of the instructions is on pages 18-23, and here is the heart of the matter:
Lobbyists, as well as private individuals and other entities, often donate to the political campaigns of public officials and there is nothing illegal about this practice. Official acts that advance the interests of a lobbyist's clients, taken shortly before or after campaign contributions are solicited or received from the lobbyist, can, depending on the circumstances, be perfectly legal and appropriate.
Therefore, the solicitation or acceptance by an elected official of a campaign contribution does not, in itself, constitute a federal crime, even though the donor has business pending before the official, and even if the contribution is made shortly before or after the official acts favorably to the donor.
However, when there is a quid pro quo agreement, orally or in writing, that is, a mutual understanding, between the donor and the elected official that a campaign contribution is conditioned on the performance of a specific official action, it constitutes a bribe under federal law.
Both versions, as presented by Fuller and Thompson, are murky. A reasonable person might argue that federal bribery law needs to be written clearly or wiped from the books, at least when allegations involve campaign contributions. (In fact, I would make exactly that argument; in the alternative, I would push for public financing of political campaigns.)
As it stands now, however, federal bribery law focuses on a corrupt agreement that must be explicit. It is not so much about an act as about an agreement to take action. Thompson spelled that out in his instruction; Fuller did not.
Chandler sought comments about the criminal trials from all of our usual local suspects--former federal judge and Cumberland School of Law dean John Carroll, former U.S. attorney and Haskell Slaughter lawyer Doug Jones, and former federal prosecutor and current defense attorney Ron Brunson. They ignored the most important issue connected to both trials. Consider this pearl from Carroll about the bingo case:
"It's the typical kind of evidence you would find in this kind of a case. I think there are enough facts (that) with a particular jury and a particular set of prosecutors you may have gotten a conviction," said Carroll. . . .
Notice that he makes no mention of the judge, in this quote or anywhere else in the story. Chandler's stories compare and contrast the McGregor and Siegelman cases, but none of the experts addresses the difference in the judges. Perhaps that is because Chandler did not ask them about it. Perhaps it is because the experts, and the reporter, did not want to admit that one judge can be competent and honest while another one is neither.
That, however, is the sad truth about the two Alabama "corruption" cases. And it is the No. 1 reason the McGregor defendants are free, while Scrushy is in federal prison and Siegelman is struggling to keep from going back.
Alabama Bingo Jury Instructions