My Common Critic, Part II

Let's address some of the criticisms Matthew Krell raises in his post at Cottonmouth.

First, Mr. Krell says I incorrectly stated the holding of U.S. v. Mariano, 983 F.2d 1150 (1993), which states that a bribery conviction requires a quid pro quo, a something-for-something transaction. Actually, Mr. Krell says that I stated the holding in Mariano correctly, but he notes that it is a First Circuit case and thus is merely persuasive authority, not controlling authority, over Judge Henry Wingate in the Fifth Circuit.

Fair enough. But Mr. Krell goes on to say that "Judge Wingate was bound only by United States Supreme Court and Fifth Circuit precedent; neither of which have passed on this issue."

That statement, it turns out, is incorrect. At the time I wrote my post to which Mr. Krell was responding, I was not aware of a Fifth Circuit case that required a quid pro quo for a bribery conviction. But since then, I have discovered such a case--U.S. v. Duvall 846 F.2d 916 (Fifth Circuit, 1988). We discussed the Duvall case in detail here.

Duvall was binding authority over Judge Wingate, and he chose to ignore it, instead cobbling together a jury instruction (that did not require a quid pro quo) seemingly out of Mississippi state law. This raises serious questions about the judge's biases, or his competence, in the Minor case.

Next, Mr. Krell says that I misunderstood the conviction, noting that it includes a lesser included offense of giving an illegal gratuity. I would be the first to say that, as a law student, Mr. Krell has more extensive knowledge than I do on technical issues such as this. But I don't think he is correct on this point. The official Department of Justice press release on the conviction says the jury convicted the defendants on bribery and honest-services mail fraud (plus the associated charges of wire fraud, racketeering, and conspiracy). I see no mention of a conviction on the illegal gratuity statute. And given the severity of Judge Wingate's sentencing--imposing a fine that is 15 times beyond what federal guidelines call for--I don't see how this was a case of conviction on a lesser offense.

Mr. Krell and I part ways most strongly on two key points:

* Mr. Krell says: A canon of appellate review holds that an appellate court will affirm a lower-court's decision for any reason in the record, even a reason the lower court did not follow. The key, he states, is that the lower court got the right answer, regardless of the method it used to get there. From there, Mr. Krell addresses Judge Wingate's rulings to exclude expert testimony for the defense. Even assuming the rulings were erroneous, Mr. Krell says, he suspects the Fifth Circuit appellate court will find it to be harmless error.

Legal Schnauzer says: First, the lower court did not get the right answer, not even close. Both the bribery and the honest-services convictions were grounded on jury instructions that were way off base. Which reminds me of the old adage: You put junk in, you get junk out. The jury almost had to convict, based on the erroneous jury instructions. So that is hardly harmless error. And the exclusion of expert witnesses goes way beyond harmless error, too. Wingate's ruling was contrary to law, and it essentially kept Minor & Co. from putting on a defense. No wonder they were convicted!

(Note: I have an advantage over Mr. Krell because I have a copy of the trial transcript. It's a voluminous document, and I haven't read all of it. But I've read key parts of it, and I know what Wingate based some of his rulings on. I lay out here the reasons his expert-witness rulings were so wrongheaded.

* Mr. Krell says: "Courts make errors all the time. A judge misreads the law or just never understood it, an ambiguous decision is poorly interpreted, or the lawyers screw up and the judge doesn't catch it, and that's why God made appellate courts." This is the kind of attitude you hear a lot if you have much experience around the law. In fact, I've had more than one judge say, "If you don't like it, appeal it." That kind of cavalier approach should have no place in our courts. Yes, judges are human and can make mistakes. But judges also are very well paid, and they have plenty of staff to help them. We're talking about people's freedom here; one man is in federal prison and two more are headed there because of Judge Wingate's rulings. He took an oath to uphold the law, and that's serious business. If I can figure out what the law is--with zero days of law school behind me--a federal judge should be able to figure it out. The Minor case involved some fairly complex law. But a federal judge should be pretty well acquainted with this stuff, or he should know how to find the applicable law. There's no place for a "hey, the appeals courts will fix it" approach. Finally, the evidence is overwhelming that Wingate intentionally butchered this case. I don't see how he could accidentally make the unlawful rulings he did regarding expert witnesses and jury instructions.

A couple of other points about Mr. Krell's piece. He states: "I admit there are things about the trial that seem fishy." But he also states: "I am loathe to assume that a federal judge got it wrong."

I think that's the main difference between us. I think Mr. Krell knows something doesn't add up about the Paul Minor conviction. But Mr. Krell has his future to think about, and for a young law student to write that a federal judge screwed up a high-profile case . . . well, I doubt it would be a wise career move.

So I can't blame Mr. Krell for equivocating in his analysis of the Minor case. I'd probably do the same thing if I were in his shoes. But I don't have to worry about trying to find a place in the legal profession. So I can say, unequivocally, that Judge Henry Wingate screwed up the Minor case, probably because the judge was eyeballing a seat on the Fifth Circuit Court of Appeals and wanted to curry favor with the Bush crowd.

That brings us back to Scrubs and those "bastard-coated bastards with bastard filling." Hopefully, Mr. Krell hasn't had to encounter too many of these types yet. But I have. And when Mr. Krell moves into the legal profession he is sure to encounter them. He will find that some of them have J.D. after their names. And some of them wear robes.

Here's where Mr. Krell and I certainly agree. He writes: "What has happened when officeholders on trial for corruption can claim that their opponents are attempting to bring them down, and have it actually be plausible?"

Then he says it all goes back to the "culture of corruption."

"How can we trust any officeholder that was complicit in the development of this system, where we can believe that our judges aren't impartial and neutral? And that's the most frightening thing: That we can believe that this is no longer a nation of laws, but of men."

I hear you, brother. I hear you.