How Did Siegelman Bribery Charge Ever Get to Court?

We presented proof in a previous post that former Alabama Governor Don Siegelman was wrongly convicted on bribery and honest-services mail fraud charges.

But here is an amazing thing we learn from a close review of the Siegelman appeal: The bribery charge never should have made it to court for a simple technical reason--the statute of limitations had run out before the charge was made.

Like many folks who have followed the Siegelman case, I was aware the defense raised limitations questions about the bribery charge. But until I had read the appeal closely, I did not realize just how powerful the defense argument is on this matter.

Here are the basic law and facts related to the statute-of-limitations question:

* The federal statute of limitations is five years. 18 U.S. Code 3282;

* The initial indictment came down on May 17, 2005;

* Five years before that date would have been May 17, 2000;

* The statute of limitations begins to run when each element of an alleged offense has occurred;

* Richard Scrushy was appointed to the CON board on July 26, 1999, and the prosecution's evidence showed the first check from Scrushy was received in that same time frame;

* The check was in an amount greater than $5,000, the level required under the sec. 666 bribery statute;

* This means all of the elements of the alleged crime were in place by the summer of 1999.

* To fall within the five-year statute of limitations, the alleged criminal events would have had to taken place after May 17, 2000. But they took place some 10 months prior to that.

The record shows that the prosecution brought its case too late.

The prosecution apparently tried to get around this little problem in several ways. One, it crafted the indictment in such vague terms that it was unclear exactly when the alleged crime took place. Siegelman's team moved for a Bill of Particulars, seeking specifics about when the alleged crimes took place. But U.S. District Judge Mark Fuller denied the motion, forcing Siegelman to defend himself against allegations that were so vague the prosecution could not even put a date on them.

Second, the prosecution argued that Siegelman could not raise the issue for the first time at a post-trial Rule 29 meeting. Siegelman's team, however, points out that the prosecution seemed to be confusing criminal procedure with civil procedure.

In the civil rules, a statute-of-limitations defense must be raised in the answer to a complaint. But no such requirement is present in the criminal rules.

In fact, Rule 29(c)(3) of the Federal Rules of Criminal Procedure states: "A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge."

So the bribery charge against Siegelman failed the fundamental test of timeliness. And yet, it still managed to go to court, to a jury, and result in a conviction.

That can only happen when you have a corrupt judge in charge of a trial. And that clearly was the case with Fuller in the Siegelman/Scrushy case. Fuller, of course, is a George W. Bush appointee.

If the prosecution fails on the bribery and honest-services mail fraud counts, that leaves only the obstruction of justice charge. And the Siegelman team makes a compelling argument that the prosecution fails on two essential prongs of that charge. Obstruction of justice, like conspiracy, tends to be a "piggyback" charge, one that requires another offense to be present. The obstruction charge, based on my understanding of the law, would not hold up without the presence of the bribery and mail fraud charges. And we've already shown that Siegelman was wrongly convicted on those.

Several thoughts come to mind after a close reading of the Siegelman appeal:

* How does a bribery count even make it to court when it clearly was brought well after the statute of limitations had run?

* How are unlawful jury instructions presented to a jury?

* How did Judge Mark Fuller ever get put in charge of this case, and what repercussions should he face for blatantly violating his oath to uphold the law?