Former Penn State football coach Jerry Sandusky was granted a motion that forced prosecutors to provide specifics about charges in his child sexual abuse case. The defendants in the prosecution of former Alabama Governor Don Siegelman were denied a similar motion on charges of public corruption.
What does that mean? One judge found that Sandusky was entitled to specifics about charges that essentially alleged he was a serial child rapist. Another judge found that Siegelman and codefendant Richard Scrushy were not entitled to specifics about charges that essentially sought to criminalize a standard political transaction.
Does that sound fair to you? Is that what passes for justice in American courts?
The legal document in question is called a motion for a bill of particulars. That one was granted for Sandusky, while one was denied for Siegelman and Scrushy, should raise profound questions in the minds of all thinking citizens. After all, Sandusky was convicted on 45 counts of sexual abuse involving 10 boys. Defendants in the Siegelman case were convicted primarily of federal funds bribery, a charge involving law that is so murky federal judges cannot even agree on proper jury instructions for it.
That Siegelman and Scrushy were denied a bill of particulars might be the single most glaring sign that U.S. District Judge Mark Fuller handled the case in a crooked fashion. If the prosecution had been forced to provide a bill of particulars, it probably would have shown that the alleged "crimes" took place in summer 1999, while the indictment came in May 2005--meaning the case should have been barred by the five-year statute of limitations.
What is a bill of particulars, and why does it matter? A paper called "Pretrial Proceedings and Motions," written by two federal public defenders and presented in March 2012, provides the answers. Rule 7(f) of the Federal Rules of Criminal Procedure governs a bill of particulars in U.S. courts. The Sandusky case was tried in Pennsylvania Common Pleas Court, but most state courts have a provision for a bill of particulars. In some jurisdictions, including Alabama, it's called a motion for a more definite statement.
From page 10 of the "Pretrial Proceedings" paper:
The purpose of a bill of particulars is to inform the defendant of the nature of the charge to enable him to prepare a defense and to minimize the danger of surprise at trial. United States v. Diecidue, 603 F.2d 535, 563 (5th Cir. 1979), cert. denied, 445 U.S. 946 (1980). A bill of particulars may be useful in detailing a vague indictment, but it cannot save a fatal indictment. Russell v. United States, 369 U.S. 749, 769 (1962). A request for a bill of particulars is to be liberally construed, 1 C. Wright, Federal Practice and Procedure: Criminal § 129 (2d Ed. 1982), but the decision whether to grant the bill is committed to the trial court’s discretion. United States v. Martino, 648 F.2d 367 (5th Cir. 1981).
A bill of particulars is designed primarily to keep the government from getting away with a vague indictment. And let's consider the two provisions in bold above: (1) The decision to grant or deny a request for a bill of particulars rests with a trial court's discretion; (2) Such a request is to be construed liberally.
Translation: A call that is remotely close should go in favor of the defendants. And that means Fuller probably had no lawful grounds for denying a bill of particulars in the Siegelman case. That becomes even more likely when you consider the usual grounds for seeking a bill of particulars. From page 10 of the "Pretrial Proceedings" paper:
Typical requests include:
1. Identity of co-conspirators . . .
2. Overt acts in furtherance of the conspiracy . . .
3. Dates . . .
4. Location . . .
5. Identity of the victims.
Seeking the time frame in which alleged unlawful acts occurred clearly is proper grounds for a bill of particulars. And that is exactly the information Siegelman's attorneys sought. Why did they need it? The answer is spelled out on pages 60-61 of an appellate brief, which can be viewed at the end of this post.
The prosecutors artfully drafted the indictment to mask its statute of limitations defect by setting the time frame of the alleged offense as “[f]rom on or about July 19, 1999, and continuing through on or about May 23, 2000. . . . ” The original indictment was returned on May 17, 2005. . . . On its face, the Indictment alleged that a crime occurred within the five-year limitations period. And when Governor Siegelman moved for a Bill of Particulars, pointedly asking among other things “when, specifically, did the action alleged take place?,” the prosecution opposed the motion, arguing that a Bill of Particulars would reveal the prosecutors’ “trial strategies.” . . . The prosecution even specifically objected to the request that it disclose the dates on which allegedly criminal actions took place. The District Court denied Governor Siegelman’s motion.
To put it bluntly, federal prosecutors pulled a not-so-subtle con game in the Siegelman case, and Fuller let them get away with it. The judge did it by failing to liberally construe a request for a bill of particulars, as required by law. And that was critical on a time-frame issue that would have shown the prosecution was barred by the statute of limitations.
In my view, the Pennsylvania judge ruled correctly in granting Jerry Sandusky's request for a bill of particulars. Despite the monstrous nature of his alleged crimes, Sandusky was entitled under the law to know specifics that were not spelled out in the indictment.
Siegelman and Scrushy clearly were entitled to the same information. That their motion for a bill of particulars was denied is the No. 1 reason Scrushy has unlawfully served a federal prison sentence--and Siegelman is due back in federal custody by September 11.
What's the lesson in all of this? An accused child rapist is likely to be treated more fairly in court than a former Democratic governor being tried under a Republican regime.
Is that really what we want from our system of "justice"?
Siegelman Appellate Brief--Eleventh Circuit