U.S. Supreme Court Must Face A Comedy Of Errors In Considering A Review Of The Paul Minor Case

Paul Minor

How entrenched is the rot in our federal judiciary? How grotesque is the corruption and incompetence in U.S. courtrooms?

Those questions perhaps can best be answered by reviewing the Bush-era Paul Minor prosecution in Mississippi. The Supreme Court of the United States (SCOTUS) now is considering a petition to review the Minor case and overturn the convictions of three men who went to federal prison for crimes they did not commit--in fact, for "crimes" that do not exist under federal law.

A decision on whether to review Paul S. Minor v. United States of America is expected any day from the high court. (The petition for certiorari review can be viewed at the end of this post.) If SCOTUS refuses to review Minor, it will be giving tacit approval to the current dysfunctional state of our federal justice system. The situation is particularly dire in the Fifth Circuit and the Eleventh Circuit, which stretch across the Deep South from Florida to Texas.

The Eleventh Circuit (Florida, Georgia, Alabama) is based in Atlanta, and its three-judge panel of right-wing nominees butchered the case of former Alabama Governor Don Siegelman. The Fifth Circuit (Mississippi, Louisiana, Texas) is based in New Orleans, and it performed a similar hatchet job on the Minor case.

Portions of the certiorari brief in Minor describe the Fifth Circuit's actions in almost comedic terms. In fact, the appellate court's handling of the case would be downright laughable--if the stakes were not so high. Two citizens, former attorney Paul Minor and former state judge John Whitfield, currently reside in federal prisons because of convictions that are not supported by fact or law. A third defendant, former state judge Wes Teel, was released in 2012 after serving his sentence. A fourth defendant, former state judge Oliver Diaz, was forced to endure two trials before being acquitted both times.

Here is the gist of Minor's argument before SCOTUS: The bribery convictions already have been overturned, but the Fifth Circuit upheld honest-services fraud convictions; that ruling was incorrect based on the trial-court record, but it becomes doubly wrong in light of the U.S. Supreme Court's holding in a 2010 case involving former Enron executive Jeffrey Skilling. The high court found in Skilling that the honest-services statute applies only in cases involving bribes and kickbacks. The high court also used Skilling to establish a uniform national standard for honest-services fraud.

And that brings us to one of many oddities in Minor. At the time the case went to trial, the federal circuits were divided on the role alleged state-law violations play in prosecutions under the honest-services statute. In the Fifth Circuit, proof of a state-law violation was an indispensable element of the crime, under a case styled U.S. v. Brumley, 116 F. 3d 728 (5th Cir., 1997). In other circuits state law was irrelevant.

That was a problem because state bribery laws, for example, vary wildly. In fact, they vary wildly just among the three states that make up the Fifth Circuit. At the time of the Minor trial, a defendant could be found guilty of a federal crime, based on a state-law violation in Mississippi, while the same behavior would not allow for conviction next door in Louisiana.

One outcome of Skilling is that SCOTUS cleaned up this mess and established a uniform national standard for honest-services violations, drawing on federal statutes and not state laws.

And that is where comedy enters the picture. When Minor was argued before the Fifth Circuit, post Skilling, even the government conceded the new opinion had radically changed the playing field, meaning the trial-court's jury instructions now were incorrect. But the Fifth Circuit upheld the convictions anyway?

Albert Alschuler, the criminal-justice expert who prepared the pending Minor petition, seems baffled by that one. This is from page 5 of the Minor petition for certiorari:

The Fifth Circuit's error was especially egregious because the government expressly and repeatedly waived any claim that the district court's instructions were correct. Prior to Skilling, Minor sought interlocutory review of a Fifth Circuit decision affirming some of his convictions and reversing others. After he filed his petition but before the government responded, this Court decided Skilling. Citing Skilling, the government then declared, "The [district] court's reliance on state law was incorrect because the honest-services statute 'establish[es] a uniform national standard.'"

The government went on to acknowledge that the instructional error was "plain." But that still was not enough for the Fifth Circuit to overturn clearly wrongful convictions. Alschuler adds this in his brief, perhaps to drive home the absurdity:

The government made the same concession in its brief to the Fifth Circuit. It did so again in oral argument, even after a panel member declared that she was "sort of appalled" by the government's concession.

Yes, a member of the Fifth Circuit Court of Appeals said she was "sort of appalled" because the government admitted a point of law that was beyond dispute. That's what passes for "jurisprudence" in postmodern federal courts.

The jury instructions at the Minor trial were hopelessly incorrect, on multiple grounds, long before Skilling came down. But the latest standard makes them even more wildly off target.

How goofy were the Minor jury instructions? The current petition before SCOTUS shines considerable light on that question. And that's where the comedy of errors continues.

(To be continued)

Paul Minor-SCOTUS Petition2 by Roger Shuler

Are U.S. Appellate Courts Trying To Cover Up Bush-Era Crimes?

Sue Schmitz

A federal appellate court, for the third time, has rendered a "split decision" on an apparent political prosecution from the George W. Bush era--overturning convictions on some counts, while upholding others.

The latest example came last Friday when the U.S. Eleventh Circuit Court of Appeals in Atlanta released its ruling in the case of Sue Schmitz, a former Democratic state legislator in Alabama. The appeals court overturned Schmitz' convictions for theft concerning a program receiving federal funds, while upholding her convictions on mail fraud. Schmitz sentence has been vacated, with the case returned to district court for resentencing.

This is similar to what happened on the appeals of former Alabama Governor Don Siegelman (Eleventh Circuit) and Mississippi attorney Paul Minor (Fifth Circuit). What should we make of this pattern? Here is what I make of it: Federal appeals courts are engaged in a coordinated effort to cover up Bush-era political prosecutions and protect the rogue judges and prosecutors responsible for them.

As we noted in a previous post (multiple posts, actually), federal judges often are more interested in protecting the interests of the legal profession than in administering justice. By rendering split decisions on the Siegelman, Minor, and Schmitz appeals, they allow a thread of legitimacy to cling to the trial-court proceedings. That will make it more difficult for the victims of political prosecutions to ever receive justice in the civil arena, from filing lawsuits against those who were likely responsible.

We have studied the Siegelman and Minor cases extensively and shown that the appellate courts, by law, had to overturn the convictions entirely. They didn't, and got away with it, because no one in this country holds federal appeals courts accountable--except the U.S. Supreme Court, and it hears only a tiny fraction of the cases that come before it. As we know from Clarence Thomas' recent machinations, the nation's highest court is itself ethically challenged:

How the 11th Circuit Cheated Don Siegelman: A Summary

The Paul Minor Ruling: More Evidence of Our Crumbling Justice System

My research on the facts and the law in the Schmitz case has not been as detailed as it was in the Siegelman and Minor cases. But I strongly suspect the 11th Circuit's ruling of last Friday is unlawful; it unquestionably is nonsensical. Let's examine some of the nuttiness to be found in the Schmitz ruling:

* The Indictment of an Indictment--The 11th Circuit overturned the federal-funds convictions because the government's indictment on those counts sucked. The dignified justices did not use that exact language, of course. But they might as well have. Here is what they did say about it: "We hold that the allegations of fraud in the federal-funds counts are insufficient because they provide absolutely no factual detail regarding the scheme to defraud the CITY Program." (See page 26 in the ruling below.) "Absolutely no factual detail"? That's pretty much telling the prosecutors, "Your work sucks." Are we to believe that the prosecutors who butchered the indictment on the federal-funds counts absolutely nailed it on the mail-fraud counts, which were upheld? If so, I'm not buying it. And I suspect most sentient beings don't buy it either.

* The Flex-Time Fiasco--Did you know it can be a federal crime to seek a flexible work schedule? It can be in post-modern, Bush/Rove America. The mail-fraud convictions were upheld against Sue Schmitz largely because she sought a flexible work schedule that would allow her to serve in the legislature while fulfilling her work duties--and she used the U.S. mails to accomplish this dastardly scheme. We're not making this up. Here is language straight from the ruling: "To accomplish her fraudulent scheme, the indictment alleges, Schmitz obtained her job through 'illegitimate means' and received authorization to perform her job based on a 'flexible work schedule.'" (See page 24 in ruling.) What does "illegitimate means" mean? The ruling doesn't say, and we don't have a clue. Does the court cite any statutory or case law to support its finding that it's a federal crime to seek a "flexible work schedule" by "illegitimate means" (whatever those are)? Nope.

* Beyond a Reasonable Doubt?--Like many Americans, you probably think you cannot be convicted of a crime unless the prosecution proves its case "beyond a reasonable doubt." You've seen enough episodes of Matlock to know that's the law, right? But that apparently doesn't apply if you are Sue Schmitz, at least at the appellate level. My guess is that the jury was given the "reasonable doubt" instruction at trial. But once the jury has reached its verdict, no matter how wrongheaded it might be, "reasonable doubt" goes out the window. At least that's what the 11th Circuit tells us. Again, this goes to Schmitz' efforts to work out a flexible work schedule, through a letter to one of her supervisors, Dr. Cornell: "A reasonable jury could view the letter to Dr. Cornell requesting a flexible work schedule as a step in the fraudulent plot because it allowed Schmitz to conceal her scheme by making it more difficult for supervisors to determine just how little work she was doing for the Program." Does the prosecution have to prove this beyond a reasonable doubt? Nope, says the 11th Circuit. It just has to get a "reasonable jury"--which might be comprised of complete dunderheads--to believe it. (See pages 36-38 in ruling.) Remind me to never ask for a flexible work schedule.

* A Lesson In Legal Nitpicking--Hold onto your hats for this one. The 11th Circuit found that the district court unlawfully allowed the prosecution to ask Schmitz improper questions on cross-examination. (See pages 44-46 in ruling.) It also found that the prosecution made unlawful comments in closing arguments. (See page 49 in ruling.) These unlawful actions by prosecutors, at a critical stage in the proceedings, surely mean that the Schmitz convictions must be overturned completely, right? Well, not so fast. In an excruciating example of hair-splitting, the 11th Circuit found that the prosecutors committed "error" but not "plain error," which would have allowed the appellate court to make a correction. The justices admit that they have neither 11th Circuit nor U.S. Supreme Court precedent upon which to base their finding, so they are more or less guessing. (See pages 49-50 of ruling.) These are your tax dollars at work, folks.

Schmitz' attorneys could seek an en banc hearing before the entire 11th Circuit. Or they could see how the district court will handle resentencing. It's possible that Schmitz will be sentenced to time served and set free. But that will leave this question hanging: How in the name of Alan Shore was Sue Schmitz convicted and sentenced to serve time in the first place, on charges that would have to improve to be flimsy? How does someone go to federal prison for seeking a flexible work schedule?

Our guess is that the justices on the 11th Circuit bench do not concern themselves with such matters of right and wrong, facts and law. They simply want to tidy up the Bush DOJ messes and ensure that many Americans go on believing the myth that we have a justice system worthy of our trust.

And the justices can best do that by issuing rulings that admit the political prosecutions were largely bogus--but leave the impression that they had just a wisp of legitimacy.

Do the justices care that innocent citizens have spent time in federal prison and likely will be left with little recourse once they get out? Nah. The main thing is that the legal establishment stays firmly in place, producing large chunks of cash for lawyers and judges and precious little justice for the public at large.


Sue Schmitz appellate ruling



[Photo: al.com]

Democrats Join the Effort to Cover Up Misconduct in the Siegelman Case

Robert Hinkle (second from right)
 with Jeb Bush (center)

The trial judge in the Don Siegelman case is not required to recuse himself, according to a ruling issued last week by U.S. District Judge Robert L. Hinkle of Florida.

Hinkle's ruling means that trial judge Mark Fuller, a George W. Bush appointee, can continue to preside over the Siegelman case, including a resentencing that has been ordered by the U.S. Eleventh Circuit Court of Appeals. Hinkle also ensured that no hearing or other discovery will be conducted to determine if Fuller conducted the Siegelman trial in a biased fashion--or if jurors engaged in serious misconduct.

A Bill Clinton appointee to the federal bench, Hinkle appears on the surface to be a Democrat. But a review of his background reveals some alarming ties to Republicans of a Rovian stripe. And his dubious ruling regarding Fuller's recusal appears to drive home a couple of disturbing points about the state of America's justice system:

* Certain Democrats have joined Republicans in an effort to cover up the rampant corruption that surrounded the Siegelman case--from Fuller's unlawful rulings, to misconduct of Bush-era prosecutors, to allegations that the whole charade was orchestrated by Republican operatives for political reasons.

* If Democrats won't stand up for due process, as outlined in the Fifth and Fourteenth amendments to the U.S. Constitution, who will?

Due process, the legal principle that government must respect all legal rights owed to a person under the law, is the broad issue at stake in Hinkle's finding.

Conservative commentators long have portrayed Siegelman supporters as being drunk on what might be called a "cult of personality." To these pundits, Siegelman and codefendant Richard Scrushy have become a cause only because the former Alabama governor was a popular, charismatic public official.

But the Hinkle ruling shows that the case is not about Siegelman's personality; in a sense, it isn't about Siegelman at all. It is about the fundamental notions of fairness that are supposed to hold sway in our courtrooms. They come under the umbrella known as "due process," and they include the right to an objective, unbiased judge; the right to an untainted jury; and the right to face prosecutors who follow fundamental legal procedures.

Hinkle, in so many words, found that Siegelman and Scrushy are not entitled to any of those protections. At the risk of sounding crude, I would say that Hinkle rolled out critical provisions of the U.S. Constitution and took a giant crap on them.

Why did he do this? Andrew Kreig, director of the D.C.-based Justice Integrity Project, provided important insight yesterday in a piece titled "Florida Judge Continues Whitewash of Siegelman Frame-Up." Reports Kreig:

Hinkle's decision absolving Chief U.S,. District Judge Mark E. Fuller of Alabama's Montgomery-based Middle District carries the veneer of independence and fairness. But Hinkle trivializes Fuller's mind-boggling irregularities and a judge's legal duty to avoid even the appearance of unfairness. Most important, Hinkle severely undermines public confidence in the judiciary when he protects his colleague Fuller from scrutiny regarding the fabulous sums Fuller has been making on the side while implementing the Bush administration's long jihad against Siegelman, his state's most prominent Democrat. Hinkle, a wealthy man with many investments, fails to see any potential conflict in Fuller's repeated, dubious rulings in favor of his Bush administration patrons while also being enriched by Bush contracts totaling $300 million to the judge's closely held company, Doss Aviation, Inc.

What about Hinkle's investments? He is making a bunch of dough on the side, too--and it comes from some intriguing sources. Kreig provides intriguing details:

Further, Hinkle was a substantial stockholder in another company, ChoicePoint--exactly when ChoicePoint used despicable methods in 2008 to thwart a private detective’s researches into Fuller's Doss holdings. ChoicePoint, since acquired by Lexis-Nexis, is notorious for other reasons in Florida's state capital: At the request of Gov. Jeb Bush's administration, ChoicePoint furnished the state with flawed records that enabled the state government wrongly to remove thousands of African-American voters from eligibility to vote in 2000. This helped George W. Bush win the Presidency that year in disputed Florida vote returns with a reported margin of just several hundred votes. The 5-4 Bush v. Gore Supreme Court decision sealed the victory by forbidding Florida from continuing vote recounts.

To be sure, there's no way of knowing how much Hinkle knows about the operations of the companies in which he invests. He has declined to respond to my request for comment for this column, and to provide a photo and his 2010 financial disclosures covering the year 2009.

The bottom line? Hinkle has ties to a company that former Florida Governor Jeb Bush used to help his brother, George W. Bush, get "elected" president in 2000. Should that raise questions about Hinkle's objectivity regarding the Siegelman prosecution, which was instigated by the Bush Department of Justice? In our mind, it certainly should.

As for Hinkle's ruling itself, we are being charitable when we call it "dubious." A more appropriate term might be "laughable." (The full ruling can be viewed at the end of this post.)

Hinkle notes key legal standards governing recusal--and then proceeds to ignore them. For example, he correctly states that the governing standard is "whether a reasonable person fully informed of the facts would question the judge’s impartiality." 28 U.S. Code 455. Material in the Siegelman file indicates that Fuller's company makes millions of dollars from U.S. government contracts--and one of the parties before him was . . . the U.S. government. How could a reasonable person not question the judge's impartiality under such circumstances? Hinkle does not say.

Hinkle also correctly states that "doubts about recusal must be resolved in favor of recusal." Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1112 (5th Cir. 1980). Then he proceeds to ignore that standard. Actually, there are no doubts about Fuller's status in the Siegelman case; he was required by law to notify the parties of potential conflicts and then recuse himself. Liljeberg v. Health Services Acquisition Corp, 486 U.S. 847 (1988). Once the issue landed on Hinkle's desk, any doubts should have been decided in favor of recusal. Hinkle admits that's the law, and then he violates it.

Perhaps most stunning is Hinkle's finding regarding alleged juror misconduct in the Siegelman case. Get a load of this:

In this case the jurors served for nearly two months. They incurred a substantial burden. The defendants now propose an intrusive investigation including subpoenas to their cellular and internet service providers and a review of their text messages and emails. The defendants propose seizing the jurors’ computers for a forensic examination. This kind of treatment sometimes befalls a person accused of a crime or even someone involved in substantial civil litigation. To visit it upon a juror, based on nothing more than anonymously provided emails that bear no indicia of authenticity and that conveniently showed up just after the court issued a comprehensive opinion explaining why earlier emails were insufficient to warrant relief, would inflict an indefensible additional burden on these jurors. Treating jurors this way would make future jurors understandably reluctant to serve.

Translation: It's better for innocent men to go to prison than for jurors to be inconvenienced. God only knows where Hinkle found that concept in the Constitution. But it should scare the bejeebers out of every American.

This also should scare every American. The recusal issue in the Siegelman case is real simple--but multiple federal judges cannot get it right.

The law plainly states that a judge shall disqualify himself when "he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding." 28 U.S.C. 455(a)(4).

Does Mark Fuller have a financial interest in a party to the proceeding, specifically the U.S. government? Yes, he does. So why is he still on the Siegelman case? Hinkle apparently thinks regular citizens are too stupid to ask that question. And even though he appears to be a Democrat, Hinkle apparently is more interested in protecting the legal/judicial cartel than in making sure justice is served.

Due process? What due process? That's the message from Judge Robert L. Hinkle.


Siegelman Hinkle Ruling