Was the Siegelman Jury on Drugs?

I recently had cause to conduct some research on the Don Siegelman trial and discovered something interesting: There are a whole lot of myths about this case.

Why was I going back into the archives to read up on the trial from 2006? Well, you might say Eddie Curran made me do it.

When the erstwhile Mobile Press-Register reporter and would-be author decided to launch a written assault on Republican whistleblower Jill Simpson, Harper's legal-affairs contributor Scott Horton, and 60 Minutes, I read the stuff with considerable interest.

I suspected Curran was blowing copious amounts of stale air, but I couldn't be sure without doing some research. My trips to the archives confirmed what I suspected about Curran's most recent writings. But they also taught me quite a bit about the Siegelman case.

For example, let's consider these myths:

* The case was about bribery--Actually, the case was mostly about honest-services mail fraud. Roughly two-thirds of the charges against Siegelman and codefendant Richard Scrushy involved honest-services mail fraud. And five of the seven counts on which Siegelman was convicted related to honest-services mail fraud. He was convicted of only one count of bribery.

* The case was primarily about the $500,000 contribution from Scrushy to Siegelman's education lottery fund--Based on the jury's verdict, it was not about the money. As we noted earlier, the conviction was built overwhelmingly on honest-services mail fraud. And by law, honest-services mail fraud is not a crime about money. It can involve the transfer of gifts, cash, and favors. But money is not a necessary element of the crime. You can check out the elements of the crime here. The key finding regarding money is:

Do public officials have to receive personal gain from their scheme? This is a matter of considerable debate. At least one judicial circuit has said yes. Most circuits have said no. In general, courts have held: "The prosecution need not prove that the scheme was successful or that the intended victim suffered a loss, or that the defendant secured a gain. The gist of the offense is a scheme to defraud and the use of interstate communications to further that scheme." U.S. vs. Louderman, 576 F. 2d 1383, (1978)

* If the case wasn't about money, then what was it about?--Based on the jury verdict, it was primarily about the fact that Don Siegelman appointed Richard Scrushy to the Alabama Certificate of Need Board, which regulates hospitals. How do we know this? Because we know that honest-services mail fraud is not about money. Here is the crux of the crime that made up five-sevenths of the Siegelman conviction:

"Even if a public official engages in 'reprehensible misconduct related to an official position,' his conviction for honest services fraud cannot stand where the conduct does not actually deprive the public of its right to [his] honest services, and it is not shown to intend the result." U.S. v. Walker, 490 F. 3d 1282 (2007).

* But Scrushy was appointed to this board by three previous governors!--Exactly. And that's why I asked the question in the headline: Was the Siegelman jury on drugs? Again, money was not an issue in five of the seven counts for which Siegelman was convicted, so forget about the $500,000 donation from Scrushy. Based on the jury's verdict, here was the key question: Was Richard Scrushy qualified to serve on the CON board? Well, three previous governors had found him to be qualified. As founder and CEO of HealthSouth, Scrushy knew the health-care ropes. The only way Don Siegelman could have "deprived the public of its right to [his] honest services" would have been to appoint someone who wasn't qualified for the position. That clearly did not occur. So five of the seven counts upon which Siegelman was convicted must be pitched out the window.

* Well, former lobbyist Lanny Young played a big role in the trial, right?--Not according to the jury. Six of the seven guilty verdicts had to do with the Scrushy/Siegelman activity. The only guilty verdict involving Young was for obstruction of justice. By definition, obstruction of justice can occur only after an investigation has begun and is dependent on other charges. If the five mail fraud convictions are tossed, as they should have been, then the obstruction conviction is resting on a very weak foundation.

* That leaves us with one count of bribery--And for that charge, the government's star witness was former Siegelman aide Nick Bailey. How unreliable was Bailey as a witness? Consider these snippets from The Birmingham News' coverage:

Bailey also admitted his initial recollections to a grand jury were incorrect. He said that, after meeting with Scrushy in 1999, Siegelman showed him a check for $250,000 signed by Scrushy. On the date Bailey recalled, the check hadn't been written, and the check was from a Maryland land company, not signed by Scrushy.

---------------------

Defense lawyers showed that Bailey's initial recollection to prosecutors about the meeting between Scrushy and Siegelman had to be false. Bailey said that after the meeting, Siegelman showed him a check Scrushy had given him, but the check was dated later. Bailey admitted he wasn't sure when the meeting occurred.

--------------------

McDonald set out testimony that Bailey had racked up thousands in debts trading stocks on credit while was a member of Siegelman's cabinet. McDonald said the debts totaled $250,000.

---------------------

Earlier in the week, Bailey testified that Scrushy made campaign contributions to get a seat on the state Certificate of Need Review Board. But under cross-examination by Scrushy lawyer Art Leach, Bailey said he was never in the room when his boss met with Scrushy.

That's enough reasonable doubt on the bribery count to give Shaquille O'Neal a hernia. And yet Don Siegelman and Richard Scrushy are in federal prison.

So were the Siegelman jurors on drugs? I ask that question in jest; I suspect they were honest, hard-working folks trying to do a thankless task. But we know they were under the influence of a judge who appears to have had an agenda in the case. And that might have been all it took to make the jurors look like a bunch of whack jobs.

What, ultimately, did I learn from my research? The Siegelman conviction looks nasty from a distance. And it looks even uglier up close.