Tuesday, April 15, 2008

Oliver Diaz: Witness to Political Prosecution

We noted in a recent post that Larisa Alexandrovna's story and interview with Mississippi Supreme Court Justice Oliver Diaz is one of the most important pieces of journalism to come out on the evolving Bush Justice Department scandal.

Alexandrovna's piece at Raw Story is an in-depth look at a man who was one of the first targets of the Bush Justice machine. And here is what makes the Diaz story so fascinating: He was indicted twice by the feds, and he was acquitted both times. A study of the Diaz case shows that the charges against him were preposterously weak. That prosecutors moved ahead with them anyway adds consider fuel to the notion that justice in the Age of Bush is motivated by politics, not facts and law.

What else makes the Diaz story fascinating? He was a Republican and served as such in the Mississippi Legislature. Diaz' apparent crime is that he worked in a bipartisan way in the legislature and he did not properly toe the "pro business" line once he was a state judge. And nothing made Diaz a target to the Bush Republicans like his friendship with trial lawyer and Democratic donor Paul Minor.

Minor and former state judges Wes Teel and John Whitfield were convicted of crimes they did not commit and have had little if any chance to tell their stories. But Diaz, after going through a long legal ordeal, is back on the Mississippi Supreme Court. And he can tell his story--a story that is central to understanding the current state of justice in America.

Let's look at some of the key issues raised by Alexandrovna's story:

A Mysterious Burglary
We've heard about the fire at the home of Republican whistleblower Jill Simpson, and we know her car was run off the road. We know about the break-in at Don Siegelman's home and at his lawyer's office. Diaz had a similar experience:

“After I was indicted and before my trial, my home was also broken into,” Diaz tells RAW STORY. “Our door was kicked in and our documents were rummaged. Televisions, computers and other valuables were not taken, despite the fact that we were out of town for several days and the home was left open by the burglars. We could not figure out a motive for the burglary and reported it to the Biloxi Police Department. The crime was never solved.”

Find a Suspect, Create a Crime
Diaz says federal prosecutors took the normal criminal-investigation process and turned it on its head:

“Normally, a criminal investigation begins after a crime is committed. Investigators are sent out to gather evidence and a list of suspects is drawn up. Sometimes an investigation is begun after a complaint is made about suspicious activity. In our case neither of these things occurred.

“In other words, an individual was singled out for examination from the federal government and prosecutors then attempted to make his conduct fit into some criminal statute. This is not how our system of justice is supposed to operate.”

Pressure on Witnesses
We've heard about former Jefferson County Commissioner Gary White and the extraordinary pressure that was put on him to supply information about Don Siegelman. Diaz tells a similar story about his wife, Jennifer:

“Just before our trial, federal prosecutors spoke to Jennifer’s attorney and told him that they were willing to make a deal. They explained that she and I were each facing many years in federal prison and millions of dollars in fines. They told her that it would be a shame if both she and I were convicted because they knew that we had two small children.

“They said that if she would agree to plead guilty to a single count of tax evasion they would guarantee her that she would serve no time and would pay no fine. All she would have to do is fully cooperate with investigators by telling them everything she knows and to truthfully testify if they called her to the stand. Not being able to risk the loss of our children, Jennifer accepted this deal.”

A Sense of Electoral Timing
We have seen how the Siegelman investigation appeared to be timed to hurt his chances of running for governor in 2006. Diaz had a similar experience:

Diaz was indicted three months prior to Mississippi's gubernatorial election. Because he'd been appointed by the incumbent Democratic governor, Republicans used his name as part of a smear campaign to bolster their candidate, Haley Barbour.

The U.S. Chamber Comes Calling
It has been widely reported that the U.S. Chamber of Commerce poured large sums of money into Alabama court races in the 1990s. Diaz felt the wrath of the Chamber next door in Mississippi:

"In 2002 I was in the second year of an eight-year term on the Mississippi Supreme Court. A struggle was brewing over control of the court. In the 2000 election, large amounts of money were put into Mississippi judicial elections by big business, tobacco and insurance, with mixed results. I was targeted for defeat by these groups, who were not able to beat me in the election.

"The mechanism used by these groups to target me for defeat was the U.S. Chamber of Commerce. The U.S. Chamber spent more than a million dollars in the final two weeks before my election, running television and radio ads, direct mail, telephone solicitations and leaflets and fliers. Most of the ads were what you would call negative attack ads directed at me. They also ran a few ads that praised my opponent."

The Importance of Alabama in the GOP Scheme
Diaz says he was attacked by a machine that was fine tuned in the Heart of Dixie:

"I think that Alabama is the model that is used by conservative groups who are interested in stacking the courts. Nothing like this had ever occurred prior to [former White House deputy chief of staff to President George W. Bush] Karl Rove’s experiment with this in Alabama. The same thing occurred in Texas under Rove’s direction."

John Grisham and the Big Picture
One of Mississippi's most famous sons, novelist John Grisham, has borrowed from the Diaz story:
"Today, many states with an elected judiciary find their courts under attack from big business, insurance and tobacco. This is so prevalent that it has even made its way into popular culture. This entire scenario is the plot of John Grisham’s latest best-seller, 'The Appeal.' I don’t think that John Grisham needs any help from me in selling his books, but I do highly recommend it for anyone who wants to learn more about this topic in a very entertaining way."

Diaz and Minor
Diaz took legal campaign support from Minor, but also took the extra step of recusing himself in cases involving Minor's clients. Diaz was not required to do this, but he did it as a precautionary measure. He was indicted anyway. Essentially, he was charged with making corrupt rulings on cases in which he made no rulings:

"The loan guaranteed by Minor was a campaign loan prior to the election, not after. All of the proceeds of this loan were used in my campaign to counter the attacks launched by the U.S. Chamber. This is all perfectly legal in Mississippi. Mississippi law specifically provides for loans to campaigns.

"Paul Minor had been a friend of mine for years, and he provided a great deal of help for me in my campaign. In addition to monetary support, he also provided advice and was involved in campaign decisions. Because of this relationship, I did not want anyone to be able to question my participation in cases in which he was involved. Therefore, in my entire time at the Mississippi Supreme Court, I have never voted or participated in any way in any case in which Paul Minor, his firm or his clients were involved. Paul knew that by taking such an active role in my campaign, I would not participate in his cases, and he agreed with that decision."

A Highly Conflicted Prosecutor
We know about the myriad conflicts of interest U.S. Attorney Leura Canary had in the Siegelman case. Diaz saw similar conflicts from U.S. Attorney Dunn Lampton in Mississippi:

"Lampton tried to dodge the questions of conflict by saying that he was not participating. This was simply a lie. Lampton questioned witnesses in the grand jury and signed the indictment. He issued press releases trumpeting the charges against us. His office personnel and resources were devoted to the prosecution. He regularly attended court and observed the proceedings. Again, the irony was that we were being prosecuted by Lampton for perceived conflicts of interest, and Lampton himself was not even attempting to live up to the standard for which he was prosecuting."

Bogus Jury Instructions
As we have reported here at Legal Schnauzer, U.S. Judge Henry Wingate made numerous unlawful rulings and gave incorrect jury instructions in the Minor case. Diaz had a front-row seat for that circus:

"In some very bizarre rulings, the trial judge in his case actually ruled exactly opposite of his rulings in our first trial. The judge went so far as to instruct the jury that they could convict Minor even if they found that the rulings of a judge in his case were the correct rulings.

"In other words, the trial judge basically instructed the jury that the simple fact that Minor guaranteed loans to a judge’s campaign was enough to convict him of bribery. Because there was never a question as to the existence of loans, this instruction completely took away Minor’s defense that there were loans but that there was never a 'quid pro quo' or something done by the judge in exchange for the loan. Without a defense, it was easy for the jury to convict."

What Lies Ahead?
Diaz has hope that justice will eventually be done. But he says it probably will not happen quickly.

"Unfortunately, I do not think we are going to get any answers as long as the current administration is in office. I think the only way we will see any action taken to correct the injustices that have been done will be if we insist that the next administration conduct a full investigation into these abuses."


Anonymous said...

This is a fine post. I've been trying to figure out how to write about this since the Raw Story interview first broke. I originally found your blog through WriteChic and I've been reading your work for a while now. I find it very useful.

I wonder what you think of the idea of filing ethical complaints against some of these bad lawyers with the appropriate bar associations. Seems to me that with some of these cases, there are enough well-documented allegations of misconduct to make this idea worthwhile, but I'm not an attorney.

Anonymous said...

Thanks for pointing me to the Raw Story article about Oliver Diaz. I agree with you that this is a foundation for understanding the ways of the permanent Republican majority.

Regarding Texas, are you aware of the murders of two assistant US attorneys in Texas? Two women died, and other assistant US attorneys from that office simply left their positions.

As a matter of fact, I know of four (including the two from Texas) assistant US attorneys who were murdered, each mysterious and unsolved. If you are interested, I will find the links that I have used to learn about each case.

legalschnauzer said...

Thanks for your comment and thanks for pointing out The Grievance Project on Left in Alabama. Look forward to posting about that.

I don't have much confidence in bar associations or judicial inquiry commissions. In my experience, the Alabama Bar might act if you were the client of an unethical lawyer. But if you are the other party, harmed by an unethical lawyer, they evidently don't do a thing. And the Alabama Judicial Inquiry Commission is a joke, as best I can tell--worthless.

Want to learn more about Grievance Project, though.

legalschnauzer said...

Yes, would like to know more about those Texas cases.


Anonymous said...

Okay, here it is:

legalschnauzer said...

Thanks for sending this on Texas case. Hope folks will check it out.


Anonymous said...

Thanks for that link, anon.

LS, I was afraid you were going to say that about the bar associations.