Judges Make All the Difference in Alabama Federal Corruption Trials

Milton McGregor

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.

Don Siegelman

And yet, the Siegelman defendants were convicted, and the McGregor defendants were acquitted. How can that be? Here is a brief explanation of how one judge got it right and one got it wrong, on almost identical issues of fact and law:

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

Siegelman, The Verdict, and Beyond

It was good to see former Alabama Governor Don Siegelman wearing a coat and tie and looking remarkably fit last night on MSNBC's The Verdict, with Dan Abrams.

Other than Sunday night's brief appearance on 60 Minutes, the last time most of us had seen Siegelman on television he was wearing the garb of a federal prisoner.

One can only imagine how good it must have felt for Siegelman to tell his story--or at least a portion of it--after spending nine months silenced and stashed away in the federal prison system. And it seemed appropriate that he would answer questions from Abrams, who picked up on problems with the Siegelman case before anyone else on the national television stage.

What did we learn from Siegelman's appearance on the verdict? Here at Legal Schnauzer, the following points made our ears stand up:

The GOP and Jury Instructions
Abrams asked a question that you often hear in situations like this: "You were convicted by a jury of your peers. How do you explain that?"

Siegelman had a ready reply. He said that U.S. Judge Mark Fuller gave unlawful jury instructions. Naturally, it is easy for a jury to come back with an incorrect verdict when they are given incorrect instructions.

I haven't seen the Siegelman trial transcript, so I don't know the content of Fuller's jury instructions. But a transcript finally exists, and it appears that the former governor has had a chance to look at it closely. Siegelman's statement on The Verdict was the strongest indication so far that improper jury instructions played a huge role in his conviction.

Giving bad jury instructions appears to be a specialty of GOP judges. Fuller, of course, is a George W. Bush appointee. We have written at length here at Legal Schnauzer about the unlawful jury instructions given in the Paul Minor case by Mississippi federal judge Henry Wingate, a Reagan appointee.

I've seen monkey business with juries in an up-close way. Some funky stuff took place with the jury in my case. How extensive was it and what form did it take? I'm in the process of trying to figure that out.

One of the biggest myths about American justice is that the jury is sacred and beyond the meddling of judges and others. Experience tells me that is not the case at all. And one of the best ways to meddle with the jury is by giving them unlawful jury instructions.

Don Siegelman brought the problem with jury instructions to the public's attention in a major way last night.

Worse Than Watergate
Perhaps the key soundbite of the interview was this from Siegelman:

"This case will make Watergate look like child's play if Congress will just dig into things."

Siegelman made it clear that problems with our justice system go way beyond his case. He mentioned, by name, the case involving Georgia Thompson in Wisconsin. But other cases involve Paul Minor and two former state judges in Mississippi and Cyril Wecht in Pennsylvania. And that doesn't even go into the firings of U.S. attorneys across the country.

It also does not go into the problems in state courts, which is one of our primary topics here at Legal Schnauzer. My case in Alabama state courts has connections to many of the same unsavory GOP characters who play central roles in the Siegelman saga.

We might not know it for 10 or 20 or 30 years. But when the full story of American justice during the George W. Bush era is known, I think Siegelman is right on target. It will be considered the worst scandal in American history, far worse than Watergate.

Looking Under Rocks in Alabama
Siegelman said Karl Rove's fingerprints are all over his conviction. But he did not stop with the former White House advisor.

Key Republican leaders in Alabama also need to be called before the House Judiciary Committee, Siegelman said. These include Business Council of Alabama head Bill Canary and U.S. attorneys Leura Canary and Alice Martin.

This also should include an inquiry into the money trail that traveled through disgraced lobbyist Jack Abramoff and helped Bob Riley defeat Siegelman in 2002. And it should include a look at the "funny numbers" that popped up in the middle of the night in Baldwin County and helped Riley to a come-from-behind win in that 2002 election.

This all hit mighty close to home in the Schnauzer household as the wife and I watched The Verdict. All of these names--Alice Martin, Bill Canary, Leura Canary, Bob Riley. Who has ties to all of them?

None other than Dax Swatek, whose father Bill Swatek filed the fraudulent lawsuit against me that started my legal nightmare and led to this blog. Do Dax Swatek's connections to Alabama Republican royalty help protect his father from the consequences of filing an bogus lawsuit? Sure looks like it from here.

The Cheating of Don Siegelman, Part III

We already have shown that the U.S. 11th Circuit Court of Appeals botched its Don Siegleman ruling on two key issues: the statute of limitations and the fundamentals of bribery law.

Let's now turn our attention to the jury instructions in the Siegelman case.

To put it simply, the trial court gave jury instructions that were wrong, that did not accurately reflect the law. The 11th Circuit's opinion essentially admits this. But the appellate judges seem to be saying, "What the hell, the instructions were in the ballpark. That's all that's needed. And nothing much is at stake here anyway. Only two men, who committed no crime, possibly going to prison for the rest of their lives. Let it rip. Next!"

So much for "guilty beyond a reasonable doubt." In this case, thanks to bogus jury instructions, Don Siegelman and Richard Scrushy were convicted of a phantom crime, one that doesn't exist under the law.

Here's what's so wacky about reviewing this case: The 11th Circuit and Siegelman's team agree that McCormick v. United States is the controlling law. And they agree on what McCormick says. The 11th Circuit even correctly cites what the law is, noting that the Supreme Court requires "more for conviction than merely proof of a campaign donation followed by an act favorable toward the donor." The 11th Circuit goes on to state:

To avoid this result, the Court made clear that 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.”

That's what the jury instruction should have been. But both the 11th Circuit and the Siegelman team, citing from the official record, say that's not what it was.

Here is how the jury instruction on bribery read, in pertinent part:

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.

As you can see, the instruction given by trial judge Mark Fuller did not require an explicit agreement. And it's not a correct statement of the law. In fact, it's not even all that close.

The Siegelman team points out the fundamental problem of Fuller's jury instruction on bribery:

The flaw here . . . is that the trial court did not tell the jury that the quid pro quo agreement had to be explicit. Instead the instruction allowed the jury to believe that an implied-in-fact “agreement,” in the sense of the existence of parallel though unspoken expectations, was enough to make out the crime. But in cases where the McCormick standard applies, as we have shown, unspoken and inferred mutual expectations would not be enough.

The 11th Circuit blithely claims that a quid pro quo instruction was given. But the McCormick standard of an "explicit" agreement, which the 11th Circuit admits multiple times is the controlling law, clearly was not given.

And the 11th Circuit ignores its own binding precedent, U.S. v. Davis, 30 F.3d 108 (11th Cir. 1994), which was decided three years after McCormick.

The finding in Davis, which originated in the Northern District of Alabama, could not have been more clear:

Because the district court failed to charge Davis's jury as to the necessity of finding an explicit promise before the jury properly could convict--and indeed informed the jury that ‘a specific quid pro quo is not always necessary for a public official to be guilty of extortion’--appellant's conviction is due to be REVERSED and the case REMANDED to the district court for further proceedings consistent with this opinion.

J.L. Edmondson, one of the three judges on the Siegelman panel, also was on the Davis panel. How's that for irony? Edmondson apparently gets a kick out of contradicting himself.

The 11th Circuit apparently tries to muddy the waters by citing Evans v. United States, 504 U.S. 255, 258 (1992). In Evans, the 11th Circuit writes, the Supreme Court approved the following jury instruction and said it satisfied the quid pro quo requirement of McCormick:

However, if a public official demands or accepts money in exchange for [a] specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the [federal extortion statute] regardless of whether the payment is made in the form of a campaign
contribution.

The 11th Circuit's reasoning, however, has several flaws:

* The Supreme Court said the jury instruction in Evans was "sufficient." But that's not the jury instruction that Fuller gave in the Siegelman case. So Evans doesn't apply.

* It's unclear in the Evans case if the alleged bribe was considered a campaign contribution. Evans claimed that it was, but appellate documents do not make it clear that indeed it was. It's undisputed that the Scrushy donation in the Siegelman case was a campaign contribution. Again, Evans is not apposite to the Siegelman case.

* Evans did not challenge the need for jury instructions that required an "explicit" agreement; that was never an issue in his appeal. He challenged the jury instructions on other grounds. Again, Evans is not apposite to the Siegelman case.

* Evans is a strange case, which came from a badly divided Supreme Court. It seems similar to the 2000 Bush v. Gore ruling, in which the court said its holdings applied only to the case before it, not subsequent cases. Nothing in the Evans' opinion indicates that it overruled McCormick.

* In fact, Evans clearly did not overrule McCormick. As the Siegelman team shows, the 1994 Davis opinion, by the 11th Circuit, overturned a trial-court finding because the jury instructions did not meet the McCormick standard for an "explicit" agreement.

How to describe the 11th Circuit's action, when it can't even agree with its own earlier rulings? The word "duplicitous" comes to mind. The three-judge panel is engaging in clear double talk, and the justices aren't all that artful about it.

To sum it up, they say:

* McCormick, as Siegelman contends, is the controlling law;

* McCormick, as Siegelman contends, requires an "explicit" agreement for a conviction on federal bribery charges;

* The trial court's jury instructions are not the same as the McCormick standard--in fact they aren't even all that close--and the 11th Circuit's own opinion makes this clear.

* In spite of this, the 11th Circuit essentially says, "We're going to let it go anyway. And we're going to try to confuse you by throwing the Evans case into the fray."

So, we've shown that the 11th Circuit screwed up the Siegelman appeal on three critical issues. Are we done? Oh no, there is more to come.

(To be continued)

Previously . . .

* Here Is How An Appellate Court Cheated Don Siegelman

* The Cheating of Don Siegelman, Part I (statute of limitations)

* The Cheating of Don Siegelman, Part II (fundamentals of bribery)

U.S. judge Myron Thompson agrees with us that jury instructions for bribery, as in the case of ex Alabama governor Don Siegelman, are an unwieldy mess

U.S. Judge Myron Thompson

Former federal prosecutor Stephen Feaga, in a recent op-ed piece for the Montgomery Advertiser, tried to convince the public that jury instructions in the Don Siegelman case were correct. We have shown that Feaga's claim is wildly off target, and a judge who has served on the federal bench in Alabama for 35 years agrees with us.

Myron Thompson, nominated by President Jimmy Carter in 1980, wrote in a 2012 opinion that jury instructions in federal bribery cases long have been filled with murky, inexact, confusing language. Thompson, writing in an opinion for the Alabama bingo trial (U.S. v. Milton E. McGregor, et al), said the problem goes beyond the case that sent Siegelman and codefendant Richard Scrushy to prison. Thompson said federal appellate courts and the U.S. Supreme Court have for years done a poor job of defining the line that marks legal and illegal transactions between public officials and campaign donors.

Thompson offered the jury instructions he crafted for the bingo case, which resulted in zero convictions, as an example of what should be consistently used across the country. Thompson even called on the nation's highest court to clarify the law, perhaps by using his suggested instructions.

It's now roughly three years later, and we've seen no clarity from the U.S. Supreme Court. Meanwhile, Siegelman remains in federal prison for "crimes" that might exist under the flawed jury instructions of former federal judge Mark Fuller--but do not exist under the actual law.

Why is this issue profoundly important? Because we have a political system that relies on campaign contributions--and First Amendment law that guarantees donors the right to support the candidate of their choosing. This is how we explained it in a July 2012 post about Thompson's opinion:

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.

How would Thompson help clear up a messy situation? From our 2012 post:

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."

Fuller's jury instruction in the Siegelman case fell woefully short of the kind of clarity Thompson seeks. Here is how we have described it:

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.

How badly have the nation's highest courts botched this issue, which can (and has) sent innocent individuals to prison?

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.

Thompson nails the key issue with this paragraph from his bingo opinion:

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.

To what kind of "corruption" is Thompson referring? It's not absolutely clear, but I believe he's saying that confusing language in the law encourages prosecutors to bring dubious charges and judges to give jury instructions that can lead to bogus convictions. No other reference to corruption makes sense in Thompson's statement. I believe he is pointing squarely at prosecutorial and judicial corruption--and perhaps dishonest political figures (can we say "Karl Rove"?) who might push like-minded prosecutors to use flawed law to take out enemies on the other side of the political fence.

Steve Feaga wants us to believe everything was fine and dandy with the jury instructions in the Siegelman case. Informed Americans should not buy it. And a federal judge with 35 years of experience provides a detailed explanation of why the law, in its current state, is so bad--and so dangerous to our political process.

Myron Thompson Opinion by Roger Shuler

Siegelman Judgment is Vacated--What Does It Mean?

The U.S. Supreme Court this morning vacated a judgment that upheld the convictions of former Alabama Governor Don Siegelman and codefendant Richard Scrushy, ordering the 11th Circuit Court of Appeals to review the case in light of last week's ruling on honest-services fraud.

What does it all mean? There is no simple answer to that question. But it probably means that Siegelman and Scrushy, the former CEO of HealthSouth, stand a heightened chance of having their convictions overturned. It should mean that Mississippi attorney Paul Minor, and codefendants Wes Teel and John Whitfield, stand a significantly heightened chance of having their convictions overturned. And it means Siegelman supporters probably will want to bone up on a case called Yates v. United States, 354 U.S. 298 (1957).

On the down side, today's Supreme Court finding is, in a sense, a smokescreen. It might lead to long-delayed justice for victims of political prosecutions. But it does not address the real problem--that corrupt federal prosecutors and judges caused this grave injustice to happen.

From a Siegelman standpoint, today's ruling is filled with irony. That's because the 11th Circuit already has overturned the honest-services fraud convictions against him--although those convictions stand against Scrushy.

The issues remaining against Siegelman involve bribery and obstruction of justice. So how could last week's Supreme-Court ruling on honest-services fraud--involving former Enron executive Jeffrey Skilling and former media magnate Conrad Black--help Siegelman?

Well, that's where the Yates case enters the picture. Justice Ruth Bader Ginsburg cited the case in her majority opinion last week. And here is the key general finding in Yates:

Constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory.

It's undisputed that the Siegelman jury was instructed on theories involving honest-services fraud. But the U.S. Supreme Court has found that theory now is legally invalid. Yates states that such an instruction, in essence, "muddies the water" of a case and raises issues of constitutional error.

Here is the reference to Yates in Ginsburg's opinion in the Conrad Black case, which is styled Black v. the United States:

On appeal, Defendants urged the invalidity of the jury instructions on honest-services fraud. Under the rule declared by this Court in Yates v. United States, 354 U. S. 298, 312 (1957), a general verdict may be set aside “where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Relying on that rule, Defendants urged reversal of their mail-fraud convictions.

While this all sounds like good news for Siegelman and Scrushy, here is one major word of caution: Yates is subject to a "harmless error" analysis. In other words, on remand, the 11th Circuit could find that the invalid instruction on honest services did not have a major impact on the verdict. Given that the 11th Circuit already has proven unfriendly to the defendants in the case, that certainly could happen.

Today's finding definitely should be good news for the Minor defendants. That's because their bribery convictions were overturned by the U.S. Fifth Circuit Court of Appeals, and fraud is the central issue remaining. Based on the Supreme Court's new definition of honest-services fraud, the chances of those verdicts being overturned should be high.

On the down side, however, we do not even know if the Supreme Court will hear the Minor case, and Raw Story reports that a notice is not expected until October. Also, the Fifth Circuit, much like the 11th Circuit in the Siegelman case, already has proven unfriendly to the defendants.

That brings us back to the real issue in these cases: The district courts and circuit courts have acted in an abominably corrupt manner--and yet the Supreme Court keeps remanding issues back to courts that already have proven they can't rule lawfully in these cases.

Today's news is encouraging in the sense that the Siegelman and Minor defendants now stand a better chance of being freed. But they never should have been in prison in the first place. Ethical prosecutors, not under the influence of the corrupt Bush Justice Department, never would have brought these cases. Under the law, there was never any bribery or honest-services fraud from the outset. If prosecutors somehow did manage to bring the cases, ethical district judges would have kicked them out long before they ever reached a jury.

That's not just our opinion, by the way. We have written numerous posts that conclusively show that both the Siegelman and Minor cases were based on unlawful jury instructions and other wrongheaded rulings by the trial judges--Mark Fuller and Henry Wingate, respectively. Here are links to just a couple of many posts that show the convictions in both cases were unlawful:

How the 11th Circuit Cheated Don Siegelman: A Summary

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

Consider what these defendants have lost while corrupt prosecutors and judges played games with their lives. Just consider this curious timeline from the Siegelman case:

Conviction, June 29, 2006

Sentencing, June 29, 2007

Supreme Court Order, June 29, 2010

How ironic is that? Siegelman and Scrushy have lost four years of their lives--and that doesn't count all of the headaches they went through leading up to the trial. The same general time frame applies to the Minor case, although it has been even worse for those defendants. They had to go through two trials because the first resulted in a hung jury.

Paul Minor, in fact, has now served four years in federal prison. He was not allowed to attend his wife's funeral, nor the wedding of his only son.

All for alleged "crimes" that he did not commit--and, in fact, do not exist under the law. We say that because the Minor defendants were convicted on jury instructions that Judge Henry Wingate pulled out of thin air. They had little, if anything, to do with the actual relevant law.

Today is a step forward for justice in the Siegelman and Minor cases. But when will those responsible for these travesties be held accountable? And how will these defendants ever be made remotely whole?

Until those questions are addressed, justice remains a long way off.

Will Siegelman Convictions Collapse Under A Shifting Legal Landscape?

Don Siegelman

Two recent U.S. Supreme Court decisions possibly have altered the foundation upon which convictions in the Don Siegelman case were built, according to statements from appellate judges at a hearing yesterday in Jacksonville, Florida.

Three judges from the U.S. Eleventh Circuit Court of Appeals appeared ready to see the convictions of Siegelman and codefendant Richard Scrushy in a new light, according to a report from John Schwartz at The New York Times. One of the judges called the convictions "problematic" in light of new developments at the nation's highest court.

Attorneys for Siegelman, the former Democratic governor of Alabama, and Scrushy, the former CEO of HealthSouth, argued for a reversal of the convictions or, at the least, a new trial. One of the judges appeared to agree with them. Reports Schwartz:

Judge J. L. Edmondson asked if the jurors in the original trial had been given alternate ways to convict Mr. Siegelman and Mr. Scrushy, and suggested that if some of those grounds for conviction had been invalidated, “that’s problematic.” Judge Edmondson asked if “there should at least be a new trial.” It is not clear when the panel will issue an opinion in the case.

Joining Edmondson on the panel were Judge James C. Hill and Judge Gerald Bard Tjoflat. All three are Republican appointees.

Much of yesterday's hearing focused on two recent Supreme Court cases--Skilling v. United States and Citizens United v. FEC. The Skilling ruling, which involved a narrowing of the federal statute on honest-services fraud, might be most critical to the Siegelman appeal.

In fact, Judge Edmondson probably made his "problematic" statement because jurors in the Siegelman case received instructions on an honest-services law that now has been altered. That raises constitutional issues, as explained in an important 1957 Supreme Court case styled Yates v. United States, 354 U.S. 298.

If Siegelman and Scrushy receive justice for what appears to be a political prosecution from the George W. Bush era, the Yates case probably will be key. Here is how we explained Yates' connections to the Siegelman case in an earlier post:

The issues remaining against Siegelman involve bribery and obstruction of justice. So how could last week's Supreme-Court ruling on honest-services fraud--involving former Enron executive Jeffrey Skilling and former media magnate Conrad Black--help Siegelman?

Well, that's where the Yates case enters the picture. Justice Ruth Bader Ginsburg cited the case in her majority opinion last week. And here is the key general finding in Yates:

Constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory.

What does that mean in everyday language? The Siegelman jury essentially was tainted by jury instructions that now are invalid. That means the defendants, at the very least, should receive a new trial. From our earlier post:

It's undisputed that the Siegelman jury was instructed on theories involving honest-services fraud. But the U.S. Supreme Court has found that theory now is legally invalid. Yates states that such an instruction, in essence, "muddies the water" of a case and raises issues of constitutional error.

Here is the reference to Yates in Ginsburg's opinion in the Conrad Black case, which is styled Black v. the United States:

On appeal, Defendants urged the invalidity of the jury instructions on honest-services fraud. Under the rule declared by this Court in Yates v. United States, 354 U. S. 298, 312 (1957), a general verdict may be set aside “where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Relying on that rule, Defendants urged reversal of their mail-fraud convictions.

Does the Yates case, in conjunction with Skilling, mean Siegelman and Scrushy are in the clear? Not exactly:

While this all sounds like good news for Siegelman and Scrushy, here is one major word of caution: Yates is subject to a "harmless error" analysis. In other words, on remand, the 11th Circuit could find that the invalid instruction on honest services did not have a major impact on the verdict. Given that the 11th Circuit already has proven unfriendly to the defendants in the case, that certainly could happen.

All hope for Siegelman and Scrushy, however, does not rest on the honest-services fraud issue. Also in play is the First Amendment, as recently examined in Citizens United. Schwartz reports that two of the judges seemed persuaded by arguments from the Siegelman/Scrushy team on the First Amendment:

Judge Edmondson said that political contributions were an essential part of participating in the political system, and that some benefit for the contributor was often implied, at the very least. “American politics does run, to a large degree, on money,” he said. “People have to ask for money, and people have to give money. America doesn’t want to chill that.”

Judge Hill agreed. The case, he said, “runs smack into the First Amendment.”

U.S. Judge Releases a Timely Opinion That Shows Siegelman Defendants Were Unlawfully Convicted

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

Schnauzer to the Washington Post, Part II

To: Carrie Johnson, staff writer

From: Legal Schnauzer

Re: "Former Ala. Governor Turns Tables on Justice Department"

Ms. Johnson:
Please allow me to point out several areas for further exploration regarding the Don Siegelman case and the Bush Justice Department:

Beyond Assertions
You state several times that Siegelman makes "assertions" that he was railroaded. The record shows that his assertions are grounded in substantial fact. Perhaps the document that most strongly supports Siegelman's assertions comes, ironically enough, from U.S. Judge Mark Fuller, who oversaw the case. When the 11th Circuit Court of Appeals ordered Fuller to issue an opinion justifying his decision to deny bond pending appeal, Fuller failed miserably to meet his burden under the law. The following posts show just how badly Fuller missed the mark on his decision to deny bond. And they also raise substantial questions about Fuller's administration of the entire case:

http://legalschnauzer.blogspot.com/2008/01/checking-out-mark-fuller-shuffle.html#links

http://legalschnauzer.blogspot.com/2008/01/rechecking-mark-fuller-shuffle.html#links

http://legalschnauzer.blogspot.com/2008/01/fuller-makes-siegelmans-case-for-him.html#links

http://legalschnauzer.blogspot.com/2008/01/mark-fuller-naked-in-town-square.html#links

An Unfit Judge
The posts above show that U.S. Judge Mark Fuller played fast and loose with the facts and the law in the Siegelman case. But a review of Fuller's background shows that he had clear conflicts of interest and never should have been assigned to the case. The most disturbing aspect of Fuller's background: While Fuller served as a district attorney, an audit was conducted of questionable business practices in his office. That audit was conducted while Don Siegelman was governor, raising the question: Did Fuller have a grudge against Siegelman, and did that color his handling of the case? Even more damning, Missouri attorney Paul Benton Weeks filed an affidavit in a separate case, raising claims of unethical and possibly criminal actions by Fuller. The following post provides details about Fuller's background:

http://legalschnauzer.blogspot.com/2007/11/mark-fuller-two-timer.html#links

Conflicted Prosecutors
You state again that Siegelman "asserts" that Republican operatives conspired to manufacture a case against him. These assertions are based in pertinent fact. It's a fact that U.S. Attorney Leura Canary is the wife of Bill Canary, who served as a campaign advisor for Siegelman's opponent, Bob Riley. It's a fact that no one has produced evidence that Leura Canary ever actually recused herself from the Siegelman case. And it's a fact that normal procedure calls for a U.S. attorney from outside Canary's district to be appointed in the event of her recusal. Instead, the case was moved to one of Canary's deputies, someone who answers to her.

http://legalschnauzer.blogspot.com/2007/09/strange-sort-of-recusal.html#links

The Rove Sideshow
As you note, Siegelman does not have proof at this point of Karl Rove's involvement in the case. But Rove's possible involvement is only a sidebar issue. The key point is this: Close examination of the case shows that Don Siegelman was convicted of crimes he did not commit. How could this happen? Again, Judge Fuller's own memorandum opinion shows that he gave the wrong jury instructions. Bribery is the crime that has received the most attention in the Siegelman case. But five of the seven counts upon which Siegelman was convicted involve honest-services mail fraud. And as we have shown in numerous posts, honest-services mail fraud is not a crime about money; it involves a public official actually depriving the public of his or her honest services. In this case, that could only have been done if Siegelman had appointed an unqualified individual to the Hospital Certificate of Need Board. But Richard Scrushy, former CEO of HealthSouth, clearly was qualified and had served on the board under three previous governors. As for bribery, Fuller's own words show that he did not require a finding of a quid pro quo (something for something) arrangement in his jury instructions. Eleventh Circuit precedent requires a quid pro quo for a bribery conviction. Fuller essentially allowed the jury to convict Siegelman of an offense that does not exist.

http://legalschnauzer.blogspot.com/2008/03/schnauzer-greaseball-awards.html#links

New Trial or Reversal
You state on a couple of occasions that an Atlanta appeals court will determine whether Siegelman should win a new trial. I'm not a lawyer, but my understanding is that the appellate court also could reverse the trial court and award Siegelman an acquittal. I don't pretend to know all of the factors that might go into a possible reversal. And I understand that the awarding of a new trial is more common than a reversal. But Fuller's own memorandum opinion shows that the trial court's handling of this case was so off target, that I think a reversal is possible--and almost certainly justified.

Examining the Press
The Alabama press, particularly the Mobile Press-Register and The Birmingham News, merit strong scrutiny for their handling of the Siegelman story. Scott Horton, of Harper's, is a Columbia University law professor, and he has written extensively about the two papers' apparent coziness with prosecutors in the Siegelman case. Eddie Curran, of the Mobile Press-Register, wrote more than 100 investigative articles that are credited with sparking the federal government's Siegelman probe. On the surface, Curran's work appears to be an impressive example of hard-nosed journalism. And he certainly portrays Siegelman as a "wheeler-dealer" governor. But I've yet to see any indication that Curran has an understanding of the criminal statutes that wound up being applied to the Siegelman case. In other words, Curran's reporting generated much "sound and fury," but it did little if anything to show that Siegelman's behavior amounted to federal crimes. And Curran's bizarre personal behavior merits scrutiny by other reporters. He certainly does not advance the idea of an objective reporter, and we've noted his strange rantings numerous times on my blog. It has been well reported that Curran has a book deal based on the Siegelman case, but it seems clear that his book deal is likely to turn sour if Siegelman's conviction fails to hold. Has Curran stayed "above the fray" and followed the story wherever it leads? Doesn't look like it.

http://legalschnauzer.blogspot.com/2008/03/eddie-curran-fires-spitballs-at-60.html#links

http://legalschnauzer.blogspot.com/2008/02/deconstructing-eddie-curran.html#links

Mississippi Churning
You state that the Justice Department is "vulnerable to allegations of politically tainted actions." Again, you are being much too kind to the Bush DOJ. No case is a more blatant example of a political prosecution than the Paul Minor case in Mississippi. Attorney Paul Minor and former state judges Wes Teel and John Whitfield are in federal prison, convicted of crimes they clearly did not commit. How can I be so sure in making that statement? I wrote a 25-part series of posts called "Mississippi Churning," showing that U.S. Judge Henry Wingate gave grossly incorrect jury instructions and made wrongful evidentiary rulings that essentially kept Minor & Co. from putting on a defense. Here is one of my most recent posts on the Minor case, showing its connections to the Siegelman prosecution.

http://legalschnauzer.blogspot.com/2008/04/unearthing-siegelmanminor-gameplan.html#links

In short, your story on the Siegelman case is a good start. But I hope the Post will devote its considerable resources to digging deeper on this topic. The Bush DOJ/U.S. Attorneys scandal reaches from coast to coast, with brush fires in Pennsylvania, Wisconsin, New Mexico, and Washington, to name a few states. But the scandal has its genesis in the South. And much more reporting needs to be done in Alabama and Mississippi.

What Is the Fallout from the U.S. Supreme Court's Refusal To Hear the Siegelman Appeal?

Don Siegelman

The Supreme Court of the United States (SCOTUS) today ruled that citizens can be convicted of "crimes" that do not exist, based on jury instructions that do not mirror actual law. The Supreme Court also overturned the case that had served as precedent for more than 20 years in cases that allege bribery in the context of a campaign contribution. For good measure, the high court also provided overwhelming evidence that Barack Obama does not deserve a second term as president.

And, by the way, criminal cases no longer have to be proven "beyond a reasonable doubt."

SCOTUS did not make any of those decisions in the form of actual rulings. But those are essentially the take-home lessons from the court's decision this morning not to hear an appeal in the prosecution of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy.

Perhaps the most important lesson is this: The nation's highest court proved beyond any doubt--and there really was no doubt in light of the 2000 Bush v. Gore ruling--that it is corrupt and our entire "justice system" needs a thorough cleansing from top to bottom.

How is this for irony? The Supreme Court almost certainly refused to hear the Siegelman appeal not because his case was weak, but because it was so strong. If the court had heard the case, it would have had to overturn the Siegelman/Scrushy convictions. It's about as close to an open-and-shut case as is ever likely to land before the Supremes.

But we suspect the high court could not countenance such an outcome. It would have shown that our justice system is riddled with politics, that judges at all levels routinely make rulings that are contrary to law, that our courts simply cannot be trusted--and, most importantly, that the Bush family and their surrogates (Karl Rove) have rigged our "justice system" into what amounts to a criminal enterprise.

We wrote months ago that one problem with overturning the Siegelman convictions is that it might open up a path for Siegelman and Scrushy to file civil cases against individuals and entities responsible for their prosecutions--and genuine discovery in such lawsuits almost certainly would lead to the doorsteps of powerful, wealthy, and loyal Bushies. That, in a postmodern America that has badly lost its way, could not be allowed to happen.

Today's ruling is further evidence that our "legal-industrial complex" wants no part of lawsuits that might grow from the gross abuses in the Siegelman case. By punting on an appeal, the Supremes found that it is more important to protect corrupt elites than to administer justice.

Documents filed in the Siegelman case, seeking certiorari review with the high court, make all of this painfully obvious. For the millions of words that have been written on the Siegelman case--quite a few of them on this blog--it all boils down to a few simple questions at this point. They are clearly stated in a docket entry, as reported last week by Matthew Bush at scotusblog.com:

Siegelman v. United States 

Docket: 11-955 

Issue(s): Whether the McCormick v. United States standard -- under which a connection between a campaign contribution and an official action is a crime “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act” -- requires proof of an “explicit” quid pro quo in the sense of actually being communicated expressly, or whether there can be a conviction based instead only on the inference that there was an unstated and implied agreement connecting a campaign contribution and an official action; (2) whether 18 U.S.C. § 666 and “honest services” law (under 18 U.S.C. § 1346) cover campaign or referendum contributions as alleged bribes at all; and (3) whether the “intent” clause of 18 U.S.C. § 1512(b)(3) requires proof of the specific intent to interfere with communications to law enforcement, or whether it is satisfied by proof of an intent to engage in a “coverup” more generically.

Issue No. 1 is at the crux of both the Siegelman and Scrushy appeals. And the following facts are undisputed on that issue:

 * McCormick v. United States, 500 U.S. 257 (1991) is controlling law on bribery in the context of a campaign contribution;

 * McCormick does, in fact, require an "explicit" quid pro quo ("something for something") agreement in order to constitute the crime of bribery on a campaign contribution;

* Jury instructions from U.S. District Judge Mark Fuller did not include the "explicit promise" language required by McCormick;

* Fuller allowed the jury to "infer" that a crime took place, and the U.S. Eleventh Circuit upheld this outcome, which clearly is contrary to McCormick.

The bottom line? By refusing to hear the Siegelman appeal, the nation's highest court essentially is saying: (1) It's fine for a trial judge to give incorrect jury instructions; (2) It's fine for a jury to more or less guess at whether a crime occurred or not; (3) And McCormick no longer is good law.

For that matter, the notion that a crime must be proven "beyond a reasonable doubt" also appears to no longer be good law. The "inference of a crime" now is sufficient.

As for President Obama and what today's news means for him, we will address that in an upcoming post. But this much can be said with certainty: The Siegelman fiasco started off as a production of the George W. Bush Department of Justice, but it fully rests with the Obama administration now. His DOJ argued against certiorari review, and it got its wish--and that means the president supports everything that has transpired in a case that deserves its billing as the most blatant political prosecution in American history.

The Democratic Party, which has consistently took brave stands for civil rights over the past 45-plus years, now is led by a president who has shown utter disregard for the concepts of due process and equal protection under the law. The Fourteenth Amendment to the U.S. Constitution clearly means nothing to Barack Obama, Eric Holder, and their minions in the DOJ.

Obama articulated a stance of cowardice on justice issues before he even took office, and now we see the natural outcome of that philosophy--a grotesque injustice lies at the feet of a Democratic president.

I'm not sure what that says to you. But it tells me that Barack Obama is not fit to be president.

One Juror Stands Up For Justice

We have a new Alabama hero today, and his name is Earl Jordan.

Jordan, a retired health and safety representative from Huntsville, is all that stood between Alabama Representative Sue Schmitz and another atrocity from the Bush Justice Department.

Actually, the fact Schmitz was prosecuted at all is an atrocity. But without Jordan, Schmitz would have been convicted. And she would have joined former Alabama Governor Don Siegelman and the three defendants in the Paul Minor case in Mississippi as victims of an administration that remains stunningly corrupt on justice issues--even as its tenure draws to a merciful close.

The Birmingham News reports that Jordan was the lone holdout for acquittal on the 12-person jury.

Let me say this up front: I did not attend the Schmitz case, and I've not seen the documents involved. But I have great respect for the journalistic and legal credentials of David Fiderer from Huffington Post and Scott Horton from Harper's.org. Both have followed the case closely, and both know their way around the law.

Fiderer called the government's case "nonexistent." Horton said the prosecution "had no case at all." The great surprise, Horton says, was that "the court let this case go to the jury in the first place."

So how is it that 11 of 12 jurors were willing to convict?

That's a scary question, and I can only speculate about possible answers. Were 11 of the 12 jurors ding dongs who simply wanted to hurry to a decision and go home to watch ESPN? I'm sure that serving on a jury is no picnic, and I certainly don't want to question the intelligence or the dedication of the jurors who apparently were prepared to convict Sue Schmitz.

But if we have learned anything from the Siegelman and Minor cases, it is this: A judge--based on the jury instructions he gives and the evidence or witnesses he allows or blocks--can pretty much dictate the outcome of a trial, even when a jury is involved. We know for sure in the Minor case that federal judge Henry Wingate gave both unlawful jury instructions and improperly struck certain witnesses. In the Siegelman case, appellate documents indicate that Judge Mark Fuller gave unlawful jury instructions, and he had myriad conflicts of interests.

What about Judge R. David Proctor in the Schmitz case? Well, he is a George W. Bush appointee, and that does not instill much confidence. I don't know about the jury instructions he gave or the evidentiary decisions he made, but the Decatur Daily voiced concerns about the secrecy with which Proctor managed the case.

The Birmingham News story itself is curious for a number of reasons:

* How did the paper determine that Jordan was the lone holdout? Did it poll every juror, and does the paper normally cover a criminal trial in such a manner? I've been reading The Birmingham News for a long time, and I don't recall another such court story. Is it possible that prosecutors figured out the identity of the holdout and fed that information to the News?

* Why did today's coverage from The Huntsville Times differ so radically from that of the News? Certainly, there is no problem with two newspapers taking very different angles on a story. But The Birmingham News seems to go to great lengths to show how close the government came to a prosecution--and to identify the one man who stood between U.S. Attorney Alice Martin and a courtroom victory.

* Is it possible that Alice Martin is highly miffed about the outcome? Did she plan to bring a string of cases against Democratic state legislators, leading to a Republican takeover of the legislature in 2010? Did a mistrial in the first of these cases throw a major wrench into Martin's plans? Did Martin go after Earl Jordan in a fit of prosecutorial pique?

* We've already seen signs from the Alex Latifi case that Alice Martin is prone to let racial politics color her judgment. Did that happen with Earl Jordan? I have no idea if Mr. Jordan is white, black, or other. But I wonder if Martin, through The Birmingham News, is trying to send this message: "A black man kept us from getting a conviction." Notice this quote in the News, attributed to Jordan and referring to Schmitz' supervisors: "They didn't give her no direction." People of all colors and classes use incorrect grammar from time to time, and in my experience as a reporter, the usual rule is to clean things up for the reader. But the News did not do that with Mr. Jordan. My guess is that to many white ears, "They didn't give her no direction" sounds like a black man speaking. And regardless of Mr. Jordan's skin color, the quote sends the message: "This guy's not very smart." (Another thought: Is it possible that Mr. Jordan used correct grammar, but the newspaper got it wrong?) There is a belief among a fair number of white folks that black jurors will not vote to convict anybody in a criminal case. Are Alice Martin and The Birmingham News conspiring to play on that belief here?

From the Schnauzer perspective, Earl Jordan did a huge public service in a number of respects. One, he kept a woman from being convicted for crimes she almost certainly did not commit. Two, he threw a wrench into Bush Justice Department plans to define someone who allegedly underperforms on a public job as committing a federal crime--at least if the person is a Democrat. Three, he shined light on the jury process in this country, and it isn't a pretty sight.

According to Jordan, the other 11 jurors were in favor of a "compromise" verdict to find Schmitz guilty of one count of fraud. But Jordan refused and said, "I couldn't convict her."

What does it say that 11 jurors were willing to "compromise" in a criminal case, to make a deal regarding someone's freedom? If these 11 jurors thought Schmitz was guilty beyond a reasonable doubt, why were they willing to compromise in this fashion?

Does this kind of dealmaking go on with juries all the time? And if it does, what does that say about a jury's mindset.

In the Schmitz case, it appears to say that the entire jury had reasonable doubt about Sue Schmitz' guilt. But only one juror was willing to stick by his guns.

Judge In Siegelman Case Displays Monumental Arrogance and a Seriously Faulty Memory

Mark Fuller

The most nauseating moment in last Friday's resentencing of former Alabama Governor Don Siegelman came when U.S. District Judge Mark Fuller stated that he had no doubt a bribe had taken place in the case.

This is a judge who, according to an affidavit from Missouri attorney Paul Benton Weeks, once tried to defraud the Retirement Systems of Alabama (RSA) and committed perjury in the process. This is the same judge who, according to documents in his ongoing divorce case, had an affair with a female employee, committed acts of domestic violence, drove under the influence, and showed signs of having an addiction to prescription painkillers.

It takes chutzpah for Mark Fuller to sit in judgment of anyone. But to fully grasp Fuller's arrogance, it helps to read one full quotation from the Siegelman resentencing. Here it is, as reported in Sunday's Birmingham News:

During his case and appeal, Siegelman maintained there had been no promise of a reward if Scrushy arranged the donations. He pushed to get the U.S. Supreme Court to review the case, to no avail. 

But Fuller said when he sentenced Siegelman that there was no doubt in his mind that Siegelman had taken a bribe. 

"The facts of this case for years have been misrepresented. There is no doubt in this court's mind that what took place was a bribe," Fuller said.

I will take that as a cheap shot toward the non-traditional press, which has led the way in raising questions about the Siegelman prosecution. The mainstream media has been mostly asleep at the switch, but concerns about the case have come from numerous quarters. More than 100 former state attorneys general signed a petition asking the U.S. Supreme Court to overturn convictions in the Siegelman case, stating that the case represented a misapplication of bribery law in the context of a campaign contribution.

Fuller might not have doubt about the presence of a bribe in the Siegelman case, but scores of law-enforcement professionals obviously do not share that view. It's likely that most of those who signed the petition have far more experience in the law than does Fuller.

Since Fuller raised the issue of certainty regarding some aspects of the Siegelman case, let's examine a few that he failed to mention--and there truly is no doubt about these:

* The prosecution was late in bringing its case, almost a full year after the five-year statute of limitations had expired. Records show that the alleged acts of bribery took place in summer 1999, and the original indictment came in May 2005. That's more than five years, but Fuller let it go;

* The defense requested a bill of particulars, pursuant to Rule 7 of the Federal Rules of Criminal Procedure, asking for details about the time frame when the alleged crimes took place. According to Federal Practice and Procedure: Criminal (C Wright, 2d edition, 1982), a request for a bill of particulars is to be liberally construed. But Fuller denied the defense information that would have shown the prosecution was barred by the statute of limitations.

* Fuller's jury instructions did not include the "explicit agreement" requirement spelled out in the controlling case law, McCormick v. United States, 500 U.S. 257 (1991). And they did not match the instructions given by U.S. Judge Myron Thompson in the trial and retrial of the Alabama bingo case. Thompson's instructions did match the language in McCormick, they resulted in zero convictions, and Thompson has proposed that they be used in all cases alleging bribery in the campaign-contribution context.

* Various individuals connected to the Siegelman case have filed affidavits stating the following:

(1) Chief government witness Nick Bailey was improperly coached;

(2) Bailey testified under pressure that he would be outed as a homosexual if he did not comply with prosecutors' demands;

(3) Prosecutors failed to turn over exculpatory evidence to the defense, as required by law;

(4) The jury was compromised by improper communications with members of the prosecution team;

(5) Certain jurors engaged in improper e-mail communications with each other;

(6) Fuller was compromised by his animosity toward Siegelman, dating to an investigation of the office where Fuller had served as a state district attorney.

Speaking of the tainted jurors, who could forget Katie Langer, the juror known as "Flipper" for her ability to entertain colleagues by doing back flips during deliberations? Langer was a gymnastics instructor when she served on the Siegelman jury. But once the case was over, and her guilty vote had been secured, she asked for a meeting with prosecutors, according to a report in the Montgomery Advertiser. She wound up going to Jones School of Law and reportedly passed the bar exam on the first try. She now works as a lawyer in the Montgomery County District Attorney's Office. Ms. Langer's professional fortunes seem to have taken a major turn for the better since she served on the Siegelman jury. The public should be asking, "How in the heck did that happen?"

Thinking citizens should not be swayed by Fuller's blind assertion from the bench that the Siegelman case involved a clear case of bribery. The truth? The Alabama bingo case, involved hours of wiretaps and far more compelling evidence than was present in the Siegelman case. But the judge gave proper jury instructions, based on controlling law, and the prosecutions yielded zero convictions.

The law on bribery involving campaign contributions, as set out in McCormick, presents a tough standard for prosecutors. That's because courts have found that a loose standard, such as the one present in Fuller's jury instructions, puts impermissible limits on First Amendment protections. One could make a strong argument that the convictions in Siegelman were not only unlawful, they were unconstitutional.

Overwhelming doubt exists about the presence of bribery in the Siegelman case. But even if the most gross sort of bribery had been present, the prosecution was barred by the statute of limitations.

The truth? Mark Fuller is a hopelessly corrupt judge, who unlawfully let an untimely prosecution move forward. And a compromised jury produced a conviction that did not square with the facts or the relevant law.

Note: I appeared last Friday on the California-based Karel Show to discuss the Siegelman resentencing. Peter B. Collins was serving as guest host, and you can hear a podcast of our conversation at the link below:

Karel Show: Hour 2, August 3, 2012


(Photo by Phil Fleming)

Karl Rove and the Stench That Follows Him

Wherever former Bush White House strategist Karl Rove goes, a foul odor seems to follow.

More evidence of that has come forth in recent days.

First, we had a report that Rove's lawyer, Robert Luskin, says his client is cooperating with an Office of Professional Responsibility (OPR)investigation into the Don Siegelman prosecution.

Scott Horton, legal-affairs contributor at Harper's magazine, is not buying that one. OPR, Horton reports, probably is not conducting a legitimate investigation on the Siegelman matter anyway:

My guess: Rove and Luskin have concluded that OPR is not conducting a serious investigation of the Siegelman debacle; instead, it is engaged in a whitewash designed to cover-up the Bush Administration’s manipulation of the case. And if that’s their conclusion, they’re almost certainly right. OPR has been involved in investigations at the periphery of the Siegelman case already, and it has a perfect record of whitewashing and belittling expressions of concern about the prosecutors involved. To a significant measure, the scandal surrounding the politically motivated prosecution of Siegelman is also a scandal surrounding a toothless and dysfunctional OPR.

This is in line with our recent report that OPR, which is supposed to be investigating Alabama U.S. attorneys Alice Martin and Leura Canary, actually is investigating Republican whistleblower Jill Simpson in an effort to obtain information that could help Martin and Canary--and Rove--get off the hook.

Horton provides more insight:

TPM reports that the OPR’s report is nearing completion. Yet of the list of obvious witnesses who have furnished information concerning prosecutorial misconduct to date, it seems very few have been contacted or interviewed by OPR. A number of individuals who have been contacted have revealed the questions put to them by the OPR representatives: they revolved almost entirely around scandalous and completely irrelevant accusations targeting the principal witness who has leveled accusations at Rove. The OPR investigation into prosecutorial misconduct in going after Siegelman has been redirected, it appears, into an effort to vindicate Karl Rove.

OPR has also engaged and used individuals from the staff of one of the Siegelman prosecutors to conduct the investigation—hardly people likely to have an open mind as to whether his boss is guilty of misconduct.

I don’t know what the OPR report will state. But I am already persuaded that no serious investigation has been undertaken up to this point, and it is therefore not likely to be much more than yet another in a long line of whitewashes. And in the topsy-turvy world so typical of the Bush Justice Department, the OPR investigators seem to be doing Karl Rove’s bidding, rather than investigating Karl Rove.

Meanwhile, Adam Lynch of the Jackson Free Press has an outstanding overview article about the Paul Minor case in Mississippi, which resulted in a prominent Democratic donor and two former state judges being wrongfully convicted on corruption charges and sent to federal prison. Like the Siegelman case in Alabama, the Minor prosecution appears to have Rove's fingerprints all over it.

Lynch points out the central role that bogus jury instructions played in the Minor convictions. The jury instructions came from U.S. District Judge Henry Wingate, an African-American Reagan appointee. And they helped U.S. Attorney Dunn Lampton obtain a conviction on retrial:

The prosecution followed federal requirements in Minor’s 2005 trial to show quid pro quo in jury instructions. Specifically, the quid pro quo requirement demands proof that “monies were provided” and “unlawful favors received.”

But Ronald Reagan appointee U.S. District Judge Henry Wingate made the fight easy for Lampton’s people the second time around, allowing that “there need not be a mutual intent on the part of both the giver and the offeree or acceptance of the bribe,” according to Minor’s 2008 appeal. Wingate also allowed the jury to find Minor guilty “even though you find that the (defendant judges’) rulings were legal and correct, that the official conduct would have been done anyway, that the official conduct sought to be influenced was lawful and required by law, and that the official conduct was desirable and beneficial to the public welfare.”

Now that no proof of the bribe was necessary, even Lampton proved capable of pushing a case for bribery against Minor.

In other words, Paul Minor and fellow defendants Wes Teel and John Whitfield were convicted of a crime that does not exist, under the law. It only existed in the world inhabited by a Republican-appointed federal judge--and a confused jury bought it. A third Mississippi state judge, Oliver Diaz, was acquitted twice on charges brought by Lampton related to the Minor case.

Lynch notes the connections of one man--Karl Rove--to both the Siegelman and Minor cases. Minor's attorneys, Lynch reports, say Rove's testimony under oath before Congress will be critical to reaching the truth about a Justice Department that produced political prisoners in the United States:

Minor’s attorney Hiram Eastland said he is encouraged by the new make-up of the Justice Department and the president’s office, and felt Rove’s testimony could have “huge” consequences. “We think they’re going to find out that Karl Rove was actually involved with the Justice Department and countless cases of political prosecution, and in the creation of nothing less than political prisoners,” Eastland said. “Congress is addressing the U.S. attorneys firing and all, but they’ve yet to get down to the questions that were raised about whether these prosecutions were political. We’re not aware that they’ve gone around and questioned anyone. There’s been very little follow-up after our letters to the Office of Inspector General and Office of Professional Responsibility. We’re not saying the investigations won’t happen. They may have ultimately planned to get around to them anyway, but this was never meant to be a country where we take political prisoners and we’re encouraging Congress and the Justice Department to get to the bottom of these issues."