Mississippi Churning, Part XX

An abundance of news this week on the Don Siegelman-front has caused an interruption in our "Mississippi Churning" series. But there is much more to write on the Paul Minor case, and thanks to U.S. Rep. Steve Cohen (D-TN), our work here now has the attention of Congress. So let's return to activity in the Magnolia State, where the U.S. Justice Department and a federal judge have been up to some serious shenanigans:


Judge Wingate Revisited
We've noted two critical decisions that U.S. District Judge Henry Wingate made that virtually ensured the defendants would be found guilty in the Paul Minor case. One was his decision not to allow expert testimony for the defense. The second was his jury instruction finding that the defendants could be convicted of bribery even if no quid pro quo existed. This instruction was based in Mississippi state law, even though federal law in the Fifth Circuit clearly requires a quid pro quo for a bribery conviction.

We've presented substantial evidence to show that these two rulings were incorrect under the law. But the wrongheadedness in the Minor trial did not stop there. Some other examples:

The indictment:
The government's indictment, alleging various forms of corruption against attorney Paul Minor and judges Wes Teel and John Whitfield, used language that does not exist under any federal statute--or state statute for that matter.

The indictment alleged that Minor bribed the judges in order to receive an "unfair advantage." It alleged that the judges gave him "favorable" rulings. No such language is found in the federal statutes. Under the actual law, the key word is that something of value was "corruptly" given, with knowledge that it was "unlawful." Since Mississippi campaign-finance laws allow the loan guarantees Minor provided to the judges, the key issue became: Did the judges make unlawful rulings? Whether Minor received "favorable" rulings, or whether he sought an "unfair advantage, was irrelevant. And as we showed earlier in our series, in the two underlying lawsuits at the heart of the government's case--Archie Marks and Accu-Fab--the law and the facts indicated that Minor's clients should prevail. In other words, Judges Wes Teel and John Whitfield ruled correctly.

In essence, "unfair advantage" and "favorable rulings" are layman's terms with no legal meaning in the Minor case. But prosecutors surely knew those phrases would resonate with a jury. And that language would ensure that there would be no messy testimony from expert witnesses showing that the judges' rulings were not unlawful.

Defense attorneys filed several motions challenging the language in the indictment. Wingate allowed it to stand. The judge's decision essentially means that Minor is in prison, and Teel and Whitfield soon are heading to prison, for convictions based on language that doesn't exist in the law.

Standards of evidence
There was a dramatic change in the evidence that was allowed from the first to the second trial. A source close to the case estimates that about 75 percent of the defense evidence allowed in the first trial was not allowed in the second trial. We will go into this in more detail later, but some examples include:

* Minor could not present "good works" evidence, including his military service in Vietnam, his Bronze Star, his charitable work, and his work with low-income individuals through the Legal Services Foundation in south Mississippi.

* Minor could not produce evidence that he could have filed more than 500 cases before Teel and Whitfield--cases which resulted in gross judgments of more than $75 million and attorneys' fees to Minor's firm of more than $13 million--but filed them in other jurisdictions instead. Does that sound like the actions of a corrupt attorney? No. Is that why Wingate didn't allow the testimony? Yes.

The jury and paperwork
Sources report that Wingate allowed jurors to have copies of the government indictment throughout the trial. And yet, once he had read the jury instructions, he did not allow jurors to take copies with them to the jury room. Our sources say both of these procedures are most unusual.

Quid pro quo
We've noted that Wingate did not require a finding of a quid pro quo on the bribery charge in the second trial. Sources tell us that he did require a quid pro quo in the first trial. The first trial resulted in acquittals on several counts, with the jury deadlocking on other counts, leading to the retrial.

As we showed in our previous post, Fifth Circuit law clearly requires a quid pro quo for conviction on a bribery charge under 18 U.S. Code 666, the statute upon which the Minor prosecution was based.

The key judicial precedent that Wingate should have followed was U.S. v. Duvall 846, F.2d 916 (1988). But he conveniently chose to ignore Duvall and cobbled together a jury instruction based mostly in Mississippi state law. The defendants, of course, were not charged with violating state law. But that's essentially what they were convicted on.

Maybe Judge Wingate was so worried about the vacancy on the Fifth Circuit Court of Appeals that he neglected to concern himself with the small issue of justice for Paul Minor, Wes Teel, and John Whitfield. As it turned out, Minor, Teel and Whitfield got cheated by our federal courts, and Wingate didn't get the job he evidently so cherished. Nicely orchestrated by the judge--a lose-lose-lose-lose situation.