Mississippi Churning, Part XV

In our previous post in the "Mississippi Churning" serious, we examined U.S. District Judge Henry Wingate's numerous strange decisions, rulings that virtually ensured that attorney Paul Minor and former judges Wes Teel and John Whitfield would be convicted. We return to the subject of Judge Wingate:

Expert witnesses (continued)
Wingate did not allow expert witnesses to testify for the defense, and that alone, might have ensured a conviction. It's tough to win a criminal case, when you are not allowed to defend yourself, when the single most critical point in the government's case against you goes unrebutted. And that's what happened in the Minor case, thanks to Wingate.

Was Wingate's decision to bar expert testimony grounded in law? It's hard to see how? The Federal Rules of Evidence indicate that courts should be welcoming of opinion evidence. Regarding Rule 704, the notes of the Advisory Committee on Rules states: "The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact."

This certainly does not mean that any gooberhead should be allowed to give an opinion in court. But the two primary expert witnesses the defense planned to call had an almost combined 80 years of experience in their specialty areas.

How desperate was Wingate to ensure that these two witnesses did not testify? He said both would run afoul of Rule 704(b), which has to do with opinions about a criminal defendant's mental state. On one of the witnesses, Al Hopkins, Wingate did not give a reason for saying there were 704(b) problems. On the other, Jim George, Wingate said he was rejecting the testimony because it would involve opinions about the "mental impressions" of the Mississippi Supreme Court.

Yes, you heard that right. Just how warped was Wingate's reasoning? We know that Rule 704(b) applies to opinions about the mental state of criminal defendants. In George's case, he was to testify about defendant judge John Whitfield, showing that Whitfield's rulings were correct under the law. George was not to testify about Whitfield's mental state, but at least Whitfield was a criminal defendant. Had the judge cited "mental impressions" regarding Whitfield, he would have been in the right ballpark. But the Mississippi Supreme Court, a criminal defendant? That ballpark is somewhere on Jupiter.

So regarding the rejection of expert testimony for the defense, we are left with this question: Is Henry Wingate incompetent or is he corrupt?

Jury instructions regarding bribery
We noted in an earlier post that the process used to develop jury instructions is convoluted, baffling, and downright ineffective. That certainly was the case in the Paul Minor prosecution. And nowhere were jury instructions more critical than in the area of bribery.

The defendants were charged with federal-funds bribery under 18 U.S. Code 666. In our post, "Bribery: A Primer," we outlined the elements of the offense. According to U.S. v. Mariano, 983 F.2d 1150 (1993) and numerous other federal cases, the heart of the offense is a quid pro quo. That means there was a "something for something" transaction at the heart of the crime.

But here is a critical portion of Wingate's jury instructions on bribery:

"You may find specific criminal intent even though you may find that the 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 or beneficial to the public welfare."

In plain English, Wingate instructed the jury that the defendants could be found guilty of bribery even if there was no quid pro quo. This clearly is contrary to federal law.

So where did Wingate come up with this? In Mississippi state law. And who pushed this idea on him? The government prosecutors, of course. And who were they working for? The Bush Department of Justice.

I can hear some of you now. "Schnauzer, you mean to tell me that the defendants were charged with federal bribery, in federal court, but they were convicted based on a jury instruction from Mississippi state law? Surely you can't be serious!"

Yes, I am serious. And don't call me Shirley.

Need proof? That's coming up.