Taking Another Look at the Fuller Shuffle

We have shown in a series of posts that U.S. District Judge Mark Fuller presents an extremely weak argument in his memorandum opinion that is designed to show that former Alabama Governor Don Siegelman should remain imprisoned pending appeal.

Scott Horton, a Columbia University law professor who writes at Harper's.org, calls Fuller's opinion "farcical" and says it "reflects a third-rate legal mind."

One of the many weaknesses in Fuller's opinion is that he does not make it clear that 11th Circuit precedent, in fact law in pretty much all federal circuits, requires the showing of a quid pro quo in order to produce a conviction on bribery.

Fuller is guilty of poor legal research, poor legal reasoning, and poor legal writing--quite a trifecta--in his opinion. I don't have the first day of law school, and I could quickly find multiple cases showing that the 11th Circuit requires proof of a "something-for-something" arrangement--also known as a quid pro quo.

A federal judge should be able to find such information. And it isn't complicated stuff, so he should be able to make the law clear in a memorandum opinion. Fuller is unable to do that, either because he is lazy and disinterested or because he knows the Siegelman prosecution is grounded on shaky legal footing and he's trying to cover that fact up.

All Fuller had to do in his opinion is cite the exact language in the relevant law. But he evidently didn't want to do that because it doesn't support his desired result--which would be to see Don Siegelman behind bars for years.

So Fuller tries to pull the equivalent of a cute card trick by mixing up the language found in the case law. He borrows language from the evidence requirements for a bribery conviction and mixes it with language from the fundamental definition of the crime itself. The result is this: The judge finds that Siegelman has not shown that the law requires an "explicit quid pro quo."

The phrase "explicit quid pro quo" appears to be a Fuller concoction, one that I suspect is designed to confuse readers and muddy the legal waters. It's a phrase that I have not found anywhere in the actual law.

The truth of the matter is this: The law does require, in a specific way, a quid pro quo. But it does not require the government to show "direct evidence" of a verbal or written agreement.

Two cases, one of which we already have explored, illustrate the requirements for a bribery conviction.

As we have seen in U.S. v. McCarter, 219 Fed. Appx. 921 (2007), the law clearly requires a quid pro quo, "a specific intent to give or receive something of value in exchange for an official act."

But what kind of evidence must the government present to prove the quid pro quo? That is addressed in another 11th Circuit case, U.S. v. Massey, 89 F. 3d 1433 (1996):

"Direct evidence of a verbal or written agreement to support a bribery conviction is unnecessary. Proof of such an agreement may rest upon inferences drawn from relevant and competent circumstantial evidence. To hold otherwise, would allow defendants to escape liability with winks and nods, even when the evidence as a whole proves that there is a meeting of the minds to exchange official action for money."

That last sentence is key. The law does not allow defendants to get off by saying, "Hey, the government has presented no written agreement between us or no tape recording of a verbal agreement between us. Therefore, we're not guilty." It's not that easy for defendants.

But the government still has a strict burden. The "evidence as a whole" must prove that there was a "meeting of the minds" to exchange something of value for official action. That "meeting of the minds" is a quid pro quo. And it must be present.

It's important to keep this mind: At this point, we're not talking about overturning Siegelman's conviction--although the evidence strongly suggests to me that it should be overturned. We are talking about whether Siegelman has presented a substantial question of law or fact that would merit his release pending appeal.

The 11th Circuit Court of Appeals twice asked Fuller to explain his decision to immediately send Siegelman to prison, and that makes me think Siegelman's attorneys have done a pretty good job of showing substantial questions of law or fact exist. That's why Fuller essentially is being forced to defend his actions, something he seems to have a hard time doing.

If Siegelman's prosecution were based on solid legal footing, Fuller's memorandum should not have been necessary. And if the appellate courts asked for one just for the heck of it, Fuller should have easily and clearly been able to state why he took the action he did.

The fact Fuller was unable to do that indicates that Siegelman should be released pending appeal. And I suspect it means that the entire prosecution was built on revenge and raw, ugly politics--that it had little, if anything, to do with the law.