Mississippi Churning, Part XIV

I suspect that many people who followed the Paul Minor case accept that the trial was handled correctly. There are a couple of reasons for that, I think:

* The "Show Me the Money" reason--Many folks hear that an attorney was helping guarantee loans for judges before whom he had cases, and they say, "Hey, that's bribery."

* The "Jury of Their Peers" reason--Americans tend to think of the jury system as sacrosanct. "If a jury of his peers found him guilty of belching after supper, well he must have belched after supper." (Based on my own experience before a jury, I take a more critical view. I don't think it would be terribly difficult for someone in power to manipulate the jury pool or even taint the jury itself. But that's a subject for another day.)

Many Americans might not fully grasp the following notion: A jury is only as sound as the judge it serves. The judge's demeanor, the evidence and testimony he allows, his jury instructions . . . all of that has a profound impact on the verdict a jury renders.

So how did U.S. District Judge Henry Wingate perform in the Paul Minor trial. A charitable view would hold that Wingate's actions were strange, even flaky. A less-charitable view would hold that Wingate, a Republican appointee, took affirmative steps to ensure that the defendants--all with strong connections to the Democratic Party--were found guilty.

Let's examine Wingate's handling of the Paul Minor trial in several key areas:

Expert witnesses
The critical point in the trial came when Wingate ruled that expert witnesses for the defense could not testify. This essentially ensured that Minor and former judges Wes Teel and John Whitfield could not defend themselves. And Wingate's ruling is not grounded in law--or common sense.

The two key charges against the defendants were federal-funds bribery (18 U.S. Code 666) and honest-services mail fraud (18 U.S. Code 1346). And recall these key points from our previous posts: (1) The loans Minor helped guarantee for the judges were allowed under Mississippi law; (2) Such "things of value" can only become a bribe if they are given corruptly, meaning that a quid pro quo is involved--the thing is given in exchange for influencing the judge's lawful duty; (3) Mail fraud cannot be present unless the public actually is deprived of its right to honest services.

The "things of value" (loan guarantees), in and of themselves, were legal. So the key question became: Were the judges improperly influenced in performing their lawful duty? And the expert witnesses were to testify that the lawsuits at the heart of the government's case were decided correctly, based on the facts and the law.

The defense tried to call two experts, one for each lawsuit that was at the heart of the government's case. One expert, Jim George, was to testify about admiralty law, which was the focus of the Archie Marks case. The other expert, Al Hopkins, was to testify about bad-faith insurance law, the focus of The Peoples Bank case.

Were the experts qualified? You be the judge. According to court documents, George had practiced in the area of admiralty law for about 35 years. As a member of the American Board of Trial Advocates, he had certified some 50 admiralty trials to verdict. He had published 41 articles in the area of admiralty law. He had been appointed as an expert in admiralty law by the federal district court in New Orleans. Hopkins was no Johnny-come-lately either. He had been practicing insurance law since 1965. He was a member of the Defense Research Institute and had lectured on insurance-coverage law.

Why did Wingate disallow two experts of such stature? The reasoning he gave in court documents was essentially the same for both. Even though George and Hopkins had an almost combined 80 years of experience in their specialty areas, Wingate found that they used improper methodology.

Regarding The Peoples Bank case, Wingate found that Hopkins' testimony would conflict with the findings of the Mississippi Supreme Court in a related case--even though the Supreme Court ruling in question came well after the time period, and the case, Hopkins was to testify about.

Strangest of all, Wingate found that the testimony of both experts would conflict with Rule 704 (b) of the Federal Rules of Evidence. As a layperson, it's hard to sit here and state that an experienced federal judge is wrong. But that is the only conclusion I can come to on this one.

Rule 704 (b), in layman's terms, holds that an expert witness may not state an opinion as to whether a criminal defendant did or did not have the mental state constituting an element of the crime charged.

Regarding The Peoples Bank case, Hopkins was to testify that Judge Wes Teel's rulings were correct based on the facts and the law. In other words, Hopkins was to perform a legal analysis of the underlying lawsuit. Seems pretty simple, exactly the kind of thing an expert witness is supposed to do. But the government argued that this would involve Hopkins' interpreting Teel's state of mind. Unbelievably, Wingate bought the government's argument. And he gave no explanation, other than to say that Hopkins' testimony would "run afoul of Rule 704(b)."

Wingate's reasoning on George's proposed testimony was even more strange. George was to testify that Judge John Whitfield's rulings in the Archie Marks case were correct based on the law. He also was to note that the Mississippi Supreme Court had upheld Whitfield on 12 of 13 issues raised on appeal. The only difference? The Supreme Court reduced the damages, although it stated that Whitfield had ample evidence to support a large damages award.

But Wingate rejected George's testimony because it was "an effort to provide mental impressions of the Supreme Court." Now remember, Rule 704(b) has to do with expert testimony about the mental impressions of defendants. The Mississippi Supreme Court was hardly a defendant in the Archie Marks case.

One can only why and how Judge Wingate came up with this line of reasoning.

But that's not the only screwy ruling Wingate made. In fact, we're just getting warmed up. More to come.