Wednesday, August 27, 2008

Unmasking Alice Martin's Latest Mess--in Real Time

Rarely does the public have an opportunity to see the weakness of a government prosecution in real time--while the trial is going on.

In the case of former Alabama Governor Don Siegelman, many people did not begin to realize how weak the government's case was until well after Siegelman and codefendant Richard Scrushy had been convicted. The same was true in the Paul Minor case in Mississippi.

But the case of Alabama Representative Sue Schmitz, currently unfolding in Decatur, Alabama, allows us to witness the machinations of the Bush Justice Department as they happen.

How do we unmask the dirty deeds of Alice Martin, U.S. attorney for the Northern District of Alabama and one of the most loyal of Bushies? It takes a knowledgeable tour guide, someone who has followed the case closely and has the professional background to understand a federal criminal trial.

David Fiderer, who writes at Huffington Post, is just the guy. Fiderer has worked in banking for more than 20 years, covering the energy industry for several global banks in New York City. He is trained as a lawyer and currently is working on several journalism projects dealing with corporate and political corruption.

Fiderer has followed the Schmitz case as an apparent example of a politically driven prosecution. In this case, the motivation seems to be the Republican Party's desires to take over the Alabama Legislature. And one way to do that was by going after Schmitz, charging that she had been paid $177,251 (over almost four years) by a two-year college program but did little or no work.

Martin's prosecution team finished presenting its case on Tuesday afternoon, and the defense began to call witnesses. U.S. Judge David Proctor earlier today postponed the trial until next Tuesday, with his clerk saying, "something had come up." No further explanation was given.

That seemed strange. But perhaps the strangest thing of all, Fiderer says, is that the Schmitz case ever was brought at all.

After learning that the prosecution had rested its case, Fiderer had this blunt assessment: "The case against Sue Schmitz isn't weak. It's nonexistent. To understand why, you need to go through the legal elements of a fraud."

If you read The Birmingham News, Alice Martin's personal mouthpiece, you probably have little idea about what Schmitz actually is charged with. The News makes vague references to fraud and "double dipping," but usually doesn't go beyond that.

This is reminiscent of the Mobile Press-Register's coverage of the Siegelman case. Reporter Eddie Curran wrote more than 100 articles, outlining all sorts of activities surrounding Siegelman that somehow seemed "wrong." But in going over Curran's articles, I've yet to see one where he clearly states what law Siegelman was alleged to have violated.

Fiderer takes a different approach. He makes an effort to actually understand the applicable law. And what do we learn?

Schmitz is charged with committing fraud under two federal statutes--18 U.S. Code 1341 and 18 U.S. Code 666(a)(1)(A)(2). You can check out the statutes here and here.

Federal statutes are notorious for being broadly written and seriously confusing. But the gist of a fraud charge includes five elements:

(1) A false statement of a material fact;
(2) Knowledge on the part of the defendant that the statement is untrue;
(3) Intent on the part of the defendant to deceive the alleged victim;
(4) Justifiable reliance by the alleged victim on the statement; and
(5) Injury to the alleged victim as a result.

How about a real-world example? Fiderer provides one:

A dealership sells a used car after representing that it has only 10,000 miles on it, when in fact the dealer knew that the odometer had been turned back, and that the car had 90,000 miles on it. The material fact, which could be demonstrably proven, was that the car had 90,000 miles on it.

What was the fact that allegedly Sue Schmitz misrepresented? Schmitz’ own state of mind. According to the prosecutor, Schmitz misrepresented her intention to perform her duties as required by her employer. The fraud began before she ever took the job, and the fraud continued for over three years, while she was employed at the job.

It’s not hard to prove that an odometer has been turned back, but it’s very hard to prove Schmitz’ state of mind before and after she got her job. Lots of people break promises that they originally intended to keep. The prosecutor has the burden of proving beyond a reasonable doubt that Schmitz never intended to keep her promise to do her job.

Schmitz' job was with the Community Intensive Training for Youth (CITY) program, which tutors young people referred by the juvenile-court system. Prosecutors must prove that Schmitz knew the job was bogus before she even started it. And that, Fiderer says, is a tough task.

The prosecution has presented evidence that Schmitz and others pulled strings to get her the position with the CITY program. The prosecution has also presented evidence that Schmitz did not do her job. Taken at face value, that circumstantial evidence may support an inference that Schmitz knew from the start that she would never do her job. But no reasonable person could infer that the evidence proves Schmitz’ intent beyond a reasonable doubt, because, again, lots of people make promises that they intend to keep at the time.

The prosecution has rested its case, and Fiderer says the evidence was flimsy at best. Here are key points from the prosecution, followed by Fiderer's analysis:

* AEA chief Paul Hubbert and two-year colleges chancellor Roy Johnson went through back-door channels to get Schmitz her job.

That only proves that Schmitz wanted a job.

* Schmitz never used her office or her computer.

Don’t they have Blackberries or laptops in Alabama? Schmitz was a state legislator who operated out of Montgomery and out of Toney. If Schmitz is like most of the professionals I know, they spend a lot of time on the go and do their work just about anywhere.

* Schmitz was derelict in turning in her time sheets.

Administrative sloppiness is not the same thing as not doing your job. And again, not doing your job is not the same thing as operating with the specific intent not to do her job.

So we've established that the government has no case. But does this mean that Sue Schmitz definitely will be found not guilty? Absolutely not. Remember, this is Karl Rove's Alabama, and guess who appointed Judge R. David Proctor? Yep, it was George W. Bush, and the nomination was approved in November 2002.

It's tempting, though probably not fair, to assume that any Bush appointee is corrupt. And given what has happened in the Siegelman and Minor trials, both overseen by Republican-appointed judges, one could be forgiven for thinking the fix is in on the Schmitz case.

The key might come when Proctor provides jury instructions--if the case gets that far.

At the close of the prosecution's case, defense attorney Jake Watson moved for the charges to be dismissed, saying that no reasonable jury could find Schmitz guilty because there was no evidence of criminal intent by Schmitz to defraud the college system. My understanding is that such motions rarely are granted, particularly in high-profile cases. But Fiderer says Proctor had strong grounds for granting this one. (Proctor probably will have another chance to dismiss the charges at the close of the defense case.)

Without clear evidence pointing to Schmitz’ state of mind, the prosecution has failed in its burden to present a material “fact” that has been misrepresented by Schmitz. . . . To put it charitably, Judge Proctor is wrong.

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