Friday, September 21, 2007

Mississippi Churning, Part V

I suspect the key moment in the Paul Minor trial came when Judge Henry Wingate refused to allow expert witnesses to testify that the judges' rulings were fair and correct in cases Minor tried before them.

The Biloxi Sun Herald reported Wingate's explanation: The rulings didn't have to be fair to constitute bribery. Evidently Wingate's logic applied to the honest-services mail fraud charges, too.

Based on my research, Wingate's ruling essentially prevented Minor, Whitfield, and Teel from putting on a defense. And I don't believe his ruling was correct under the law. I suspect this point will be at the heart of appeals in this case.

Let's examine a few key factors:

* As we noted in an earlier post, under Mississippi law at the time, it was legal for an attorney to provide loans, gifts, or cash to judges. (My understanding is that this is still legal, although I believe there have been limits placed on the amounts. I don't like this practice one bit. I also don't like judges playing footsie with lawyers on golf courses, as happened in my case. But all of that is legal, whether I like it or not. Here is what's not legal: Taking loans/cash from an attorney--or playing footsie on a golf course with an attorney--and then making unlawful rulings that favor said attorney in court. And when the U.S. mails are used in the course of the case, as they almost always are, it becomes a federal crime.)

* The government's indictment repeatedly states that Minor provided things of value (loans, cash, checks) in exchange for favorable treatment in lawsuits that Minor had before the judges.

* I have seen nothing in either the statutory or case law (on both bribery and honest-services mail fraud) that says it would be unlawful for Minor to receive favorable treatment in lawsuits--especially if the facts and law in a case indicate he and his client should prevail. The issue, it seems, is not whether Minor received favorable treatment but whether he received unlawfully favorable treatment--treatment not supported by the law and the facts. And that is why it is baffling that expert witnesses were not allowed to testify as to the correctness of the judges' decisions.

* Keep in mind that key term "corruptly" in our definition of bribery: "An act is done corruptly if it is done intentionally with an unlawful purpose." How can there be an unlawful purpose if the judges' rulings in Minor's cases were supported by the law and the facts--if the rulings were, in fact, lawful?

Now let's return to the issue of mail fraud. Recall the three-pronged approach to a general mail fraud case? Here is how it reads for an honest-services mail fraud case:

1. The defendant made up a scheme or plan to deprive the victim of his or her right to honest services;

2. The defendant acted with the intent to deprive the victim of his or her right to honest services; and

3. The defendant used, or caused someone to use, the mails or the nation's telecommunications system to carry out the scheme or plan. (Ninth Circuit Model Criminal Jury Instructions.)

Clearly the government proved No. 3 in the Minor case. The defendants caused the U.S. mails to be used for a number of legal documents, checks, etc.

But how can a victim be deprived of his or her right to honest services if the judges' rulings in Minor's cases were lawful? And can there be criminal intent if the judges' rulings in Minor's cases were lawful?

To answer those questions, we need to look at the two lawsuits that were made the heart of the government's case. We will do that in just a bit.

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