|U.S. District Judge Myron Thompson|
A federal judge in Alabama released an opinion this week that adds to the mountain of evidence showing defendants in the Don Siegelman case were unlawfully convicted, based on murky law and improper jury instructions.
U.S. District Judge Myron Thompson is intimately familiar with public-corruption cases; he oversaw the trial and re-trial in the Alabama bingo case that resulted in zero convictions. In fact, Thompson's opinion, dated July 24, 2012, was issued in his role as the judge in United States v. Milton E. McGregor, et al, as the bingo case is officially known. But Thompson's words have implications that go way beyond bingo issues--and way beyond Alabama, for that matter. (The opinion can be viewed at the end of this post.)
For one, Thompson's opinion shows that the U.S. Supreme Court and Eleventh Circuit Court of Appeals have failed miserably in their duty to ensure that the law is applied consistently. Two, it shows that Siegelman and codefendant Richard Scrushy were convicted of phantom "crimes." Three, it proposes a jury instruction that should clarify the law for judges, prosecutors, defendants, and the public.
Meanwhile, lives are being ruined because of incompetence in the federal judiciary regarding public-corruption cases--and Thompson's opinion comes at a critical time. Siegelman is set to be resentenced in Montgomery on August 3. With clearly compromised trial judge and Bush appointee Mark Fuller still at the controls, the former Democratic governor almost certainly is headed back to prison. Scrushy, meanwhile, has completed his sentence and was released from federal custody this week.
Those two events provide bookends to Thompson's opinion, which helps prove that Siegelman and Scrushy never should have been convicted, under the law. In fact, public records show that the federal bingo trial resulted in no convictions mainly because Thompson presented clear, detailed jury instructions that dovetail with actual law.
It's not, of course, that public officials accused of bribery, extortion, and the like always should go free. But the standards for convictions in the context of campaign contributions, Thompson writes, must be strict so as not to conflict with First Amendment guarantees. Courts, however, have repeatedly used poorly defined terms that make it impossible for public officials, campaign donors, and the public to understand the line between lawful conduct and a federal crime.
In his opinion, Thompson cites the jury instruction he used in the Alabama bingo trial and shows how it fits with, and illuminates, the case law that has come to govern such issues. Here is the key component of the jury instruction Thompson says should be used consistently in public-corruption cases. It focuses on the definition of a "quid pro quo" (this for that), which must be present under the law for actions to be criminal:
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. By this phrase, I mean that a generalized expectation of some future favorable action is not sufficient for a quid pro quo agreement; rather, the agreement must be one that the campaign contribution will be given in exchange for the official agreeing to take or forgo some specific action in order for the agreement to be criminal. A close-in-time relationship between the donation and the act is not enough to establish an illegal agreement.
Thompson goes on to note that three kinds of quid pro quo are possible--an "agreement," a "promise," and a "solicitation." The first is a two-sided "this for that" arrangement, while the other two are one-sided. All three can be criminal under certain circumstances, and Thompson dives into the specifics. But for purposes of the Siegelman case, the focus is on a "quid pro quo agreement."
Prosecutors did not allege a one-sided promise or solicitation by either party. Rather, they alleged that Siegelman and Scrushy came to a two-sided agreement. So the language highlighted in the passage above, which Thompson essentially pulled from the controlling McCormick v. United States, 500 U.S. 257 (1991), should have been at the heart of the jury instruction in Siegelman.
But as we have shown in a series of posts, that was not the case; Fuller's jury instruction did not require an explicit agreement as outlined in McCormick, much less one that had to be stated orally or in writing. Fuller let the jury believe that an agreement could be implied or inferred. The Eleventh Circuit inexplicably allowed the unlawful jury instruction to stand--and the U.S. Supreme Court refused to review the matter.
Appellate courts simply have not done their jobs on the Siegelman case, causing a massive misuse of public funds that should draw Congressional review.
Consider the Eleventh Circuit: Its own rules (Rule 35, Federal Rules of Civil Procedure) state that the purpose of en banc review is "to secure or maintain uniformity of the court's decisions" or to address panel decisions that are in "direct conflict with precedent of the Supreme Court or of this circuit." The three-judge panel's ruling in Siegelman clearly conflicts with McCormick, it conflicts with the circuit's own findings in U.S. v. Davis, 30 F.3d 108 (11th Cir. 1994), and it destroys any semblance of uniformity on the pertinent law. But the full Eleventh Circuit declined review.
Consider the nation's highest court: U.S. Supreme Court Rule 10 states that certiorari review is properly considered when "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter." The Eleventh Circuit's finding in Siegelman conflicts with McCormick, with Davis, and with similar rulings in other circuits. So why did the Supreme Court punt on Siegelman? To be sure, certiorari review is at the court's discretion; it's not a matter of right. But perhaps we no longer need a Supreme Court if it is not going to hear critically important cases that so clearly meet its own criteria
Who is to blame for this messy state of affairs. Thompson places it at the feet of courts--where it belongs:
It is often true that “unexamined assumptions have a way of becoming, by force of usage, unsound law." McCormick, 500 U.S. at 280 (Scalia, J., concurring). In the public-corruption context, courts have been particularly lax in the use of certain words–-explicit, express, agreement, promise, and quid pro quo-–that should have clear legal meanings. Imprecise diction has caused considerable confusion over the scope of federal corruption laws as applied to campaign contributions. Uncertainty in this area of law breeds corruption and chills legitimate political speech.
It also has enormous human costs by sending individuals to prison for "crimes" that do not exist. That already has happened in the Siegelman case. And one week from today, the injustice in Montgomery, Alabama, is likely to become even more monstrous when Don Siegelman is sent back to prison.
Perhaps the most important message from Judge Thompson comes in the highlighted sentence from the above segment. What does Thompson mean when he says "uncertainty in this area of the law breeds corruption"? He could be referring to corruption by politicians and donors, but that does not make sense. After all, Thompson seems to admit that most targets of prosecutions involving campaign contributions do not understand the law--and aren't even aware they are breaking a law. That surely breeds confusion, but how does it breed corruption? It's hard to imagine someone saying, "I don't have any idea what the law is, so I think I will go out and break it."
Perhaps Thompson is referring to corruption among federal judges and prosecutors. Perhaps he is pointing a subtle finger at his colleagues in the federal "justice" system. With so much uncertainty in the law, prosecutors are free to go after certain individuals for political and unlawful reasons. With no standard for jury instructions, judges can create "statutes" on the bench--ensuring that certain defendants are convicted, whether they violated the actual law or not.
I think Thompson knows this is precisely what happened on the Siegelman case. He surely knows an innocent man was just released from six years in federal custody--and another innocent man probably is headed back to prison on August 3.
Unlike a number of federal judges that I've encountered, Myron Thompson seems to have a conscience. And I'm guessing it would not allow him to stay silent.
Myron Thompson Opinion