Mississippi Churning, Part VIII

The second lawsuit at the heart of the government's case against attorney Paul Minor and two Mississippi judges was Diamond Offshore Management Company v. Archie Marks.

This is the kind of case that makes me think I should consider going to law school. The facts and the law are very interesting, even if you don't consider the broader implications.

And by broader implications, I mean the possibility that the Minor prosecution was a "political hit," similar to the Don Siegelman prosecution in Alabama and part of a larger Bush administration scheme to attack trial lawyers who were sources of funds for Democratic candidates.

The Archie Marks case adds to the evidence that the Minor case was wrongly decided. But on its own, the Marks case is fascinating stuff. So let's give it a close look.

By the way, I was able to find little information on The Peoples Bank case because it was settled. There were no appellate rulings. The Marks case was appealed to the Supreme Court of Mississippi and can be readily found if you have access to a service such as Lexis-Nexis or Westlaw. Here is a summary of the case.

Archie Marks was employed by Diamond Offshore as a roustabout on its vessel, the Ocean Nugget. In April 1998, Marks injured his back while carrying a bucket of water up some stairs. Marks subsequently filed suit against Diamond and others, claiming breach of contract, negligence, and maintaining an unseaworthy vessel in violation of general maritime law.

Paul Minor represented Marks, and in June 2000, the case went to a bench trial before Circuit Judge John Whitfield.

According to the government indictment, Minor had arranged two loans for Whitfield totaling about $140,000. In July 2000, Whitfield entered a $3.75 million judgment in favor Marks, Minor's client. The Supreme Court of Mississippi upheld Whitfield's finding on liability, but reduced the damages to $1.64 million.

After Minor and Whitfield were convicted on corruption charges, the Supreme Court of Mississippi issued a decision on April 26, 2007, withdrawing its earlier opinion, vacating the trial-court judgment, and remanding the case for a new trial.

A layperson, at first glance, might consider the verdict in favor of Marks to have been tainted. After all, Minor apparently did arrange loans for Judge Whitfield, who then ruled in favor of Minor's client. The casual observer might look at it as a cut-and-dried example of bribery.

But when you study the law, and look closely at the facts of the Marks case, at least one layperson (your humble Legal Schnauzer) has concluded that Judge Whitfield's ruling was largely correct. And it certainly appears that Marks could not support a finding of bribery and honest-services mail fraud against Minor and Whitfield.

Why would I, of all people, come to this conclusion? After all, this blog started mainly because I was the victim of corrupt lawyers and judges in Alabama. But my interest goes beyond my case to our justice system in general.

My experience in Alabama courts has caused me to work up what I hope is an appropriate and "healthy" contempt for those who would abuse our justice system. And while my initial instinct might have been to consider Minor and Whitfield a couple of scoundrels, I came to a different conclusion after taking a closer look.

Here's why I think they acted within the law:

* The Ocean Nugget is a "jack-up rig" that performs oil-drilling operations in the Gulf of Mexico, off the shore of Louisiana. Marks was assigned to clean the upper pipe rack deck in preparation for moving the vessel. In order to do this, Marks had to fill a five-gallon mop bucket with water from faucets on the main deck, located one deck below the area he was to clean. Due to the size of the upper deck, this required Marks to make repeated trips up and down the stairs to get fresh buckets of water. After approximately seven trips up the stairs with a bucket of water, Marks felt a sudden pain in his back and legs. He completed his shift, but was unable to get out of bed for his next shift and was taken ashore for medical treatment. Marks returned to his home in Gulfport, MS, to recuperate under a conservative regimen of steroid injections and physical therapy. After Marks failed to improve, doctors recommended back surgery, which was performed in July 1998. About six months after the surgery, the surgeon concluded that Marks had reached maximum medical improvement and had experienced 25 percent total body loss pursuant to American Medical Association guidelines. The doctor said Marks could no longer perform his duties as a roustabout.

* A vocational expert at trial testified that Marks' reading, spelling, and math abilities were at or below a first-grade level. Marks' previous work history had entailed only heavy manual unskilled labor. The expert testified that, based on Marks work history and cognitive deficits, the injury had caused him to be permanently and totally disabled. Diamond presented an expert stating that Marks was capable of working an eight-hour day and identified five available local jobs he could perform. The trial court discounted the testimony of Diamond's expert because she had never met Marks and had never performed any tests on him.

* Why was Archie Marks forced to repeatedly carry buckets of water up and down stairs? There was no water available on the upper deck because the vessel's faucets on that level were defective. Diamond's own installation manager testified that Marks should not have been required, or allowed, to carry a five-gallon bucket of water up and down stairs. Also, Marks' supervisor, who was responsible for the safe-work practices of his crew, was unable to read and was unable to convey the text of safety manuals to his crew.

* The Supreme Court of Mississippi concluded: "As the record clearly reveals, even under the standard of ordinary prudence under the circumstances, there is substantial evidence that Diamond was negligent and that its negligence was the proximate cause of Marks' injury."

* The Supreme Court also noted the special provisions of the Jones Act, which provides a cause of action for seamen injured in the course of their employment by their employer's negligence. "The seaman, while on the vessel, is subject to the rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of power which the law makes readily available to the landsman. His complaints to superior officers of unsafe working conditions not infrequently provoke harsh treatment. He cannot leave the vessel while at sea. . . . In the performance of duty he is often under the necessity of making quick decisions with little opportunity or capacity to appraise the relative safety or alternative courses of action." In other words, maritime employers have a special duty to protect their vulnerable employees. And the Supreme Court agreed with Whitfield that Diamond had failed to live up to this duty.

* As to the issue of damages, the Supreme Court stated: "We concede that the trial court had ample material in the record to justify a high award of damages." The Supreme Court, though, did reduce the damage award by $2 million, to $1.64 million.

In summary, the Mississippi Supreme Court agreed with Whitfield that there was overwhelming evidence of negligence on the part of Diamond. It agreed that Whitfield had ample evidence to justify a high award of damages. And as we noted earlier, the loans Minor arranged for Whitfield were allowed under Mississippi law.

If Whitfield's rulings were properly grounded in fact and law, and the Mississippi Supreme Court found that they were, the Marks case cannot support a finding of bribery or honest-services mail fraud against Whitfield and Minor.

And yet, Whitfield currently is in prison because a jury found that he handled this case corruptly. And Minor is in prison because a jury found that he caused Whitfield to handle the case corruptly.

The facts and the law of the Marks case simply do not support a prosecution, much less a conviction, on corruption charges. And neither do the facts and the law of The Peoples Bank case.

That's why I look for Congressional investigators to focus heavy attention on Mississippi, as well as Alabama, in their scrutiny of the Bush Justice Department.