Thursday, September 25, 2008

An Inside Look at the Dirty Work of Federal Prosecutors in the Age of Bush

An objective reader might take issue with the two posts we've written in recent days showing that former Alabama Governor Don Siegelman was wrongly convicted. You can check out the two posts here:

Here's Proof Don Siegelman Was Wrongly Convicted

How Did Siegelman Bribery Charge Ever Get To Court?

A constructive critic might say: "Hey, you draw entirely from the Siegelman appeal, but you do not include information from the prosecution's response."

That's a point well taken. And there are two reasons for the lack of response from the prosecution side. One, I don't have a copy of their response. But more importantly, I don't think I would trust it if I did have a copy.

I've seen the Bush Justice Department at work enough to know that even career prosecutors seem to be more interested in pushing a political agenda than in seeing to it that justice is done.

In the Siegelman case, for example, we know that U.S. Attorney Leura Canary had multiple conflicts of interest, but prosecutors who answer to her continued to handle the case. And there is no clear evidence that Canary ever actually recused herself.

I have not seen a transcript from the Siegelman case. But I have seen a transcript from the Paul Minor case in Mississippi, and that gives me reason to question prosecutors who serve in the Bush Justice Department.

Throughout the Minor transcript, you can see prosecutors arguing points regarding bribery, honest-services mail fraud, and expert testimony that they almost have to know are not grounded in the law.

I don't have the first day of law school, but I was able to gain a reasonable grasp of federal law on the two primary issues in the Minor case--bribery and honest-services mail fraud. I summarized the law in the following posts:

Bribery: A Primer

Mail Fraud: A Primer

In both offenses, an essential element is that the defendant must have acted in a corrupt manner. On bribery, federal law says an official must be induced to "violate his or her lawful duty." (U.S. v. Mariano, 983 F. 2d 1150.) On mail fraud, federal law requires that conduct "actually deprives the public" of an official's honest services. (U.S. v. Walker, 400 F. 3d 1282.)

In other words, the decisions that state judges Wes Teel and John Whitfield made in underlying cases involving Paul Minor's clients were crucial. If those decisions were supported by the facts and the law, then Teel and Whitfield did not act corruptly and Minor had no corrupt intent in providing loan guarantees to the judges, which were allowed by state law.

Federal prosecutors, however, argued just the opposite.

The defense sought to enter testimony from two expert witnesses who would show that Teel and Whitfield had ruled correctly based on the law and facts before them. But federal prosecutors argued for excluding the expert testimony. Here is how prosecutor David Fulcher put it:

"Starting point, your Honor, is this witness' testimony is irrelevant . . . for a variety of reasons. The first and foremost is that the rightness or wrongness of a particular judge's decision based on the law is irrelevant."

You can almost imagine Minor defense attorney Brad Pigott throwing up his hands in exasperation:

"If Mr. Fulcher's version . . . were the law, then no criminal defendant in any case in which state of mind is an issue could put on any circumstantial evidence of having a noncriminal state of mind and might as well not show up for trial."

Pigott even went on to state that the court's jury instructions when the case was tried in 2005--and ended with an acquittal for Oliver Diaz and no unanimous verdicts for Minor, Teel, and Whitfield--ran counter to Fulcher's assertions.

"The court's position on that occasion is our position now," Pigott said. "It is circumstantial evidence of the state of mind, whether or not there was a criminal state of mind of the judge. And of course, it's relevant to our client (Paul Minor) because if the judge did not have a criminal state of mind in ruling on these Minor Law Firm cases, then that's probative that nobody was seeking a criminal state of mind. The logic is obvious, and it was set forth in detail by this court."

U.S. Judge Henry Wingate, however, changed his earlier ruling and went along with Fulcher. Essentially, the Minor defendants were not allowed to put on a defense. Wingate, a Ronald Reagan appointee, is the very embodiment of corruption in the Age of Rove.

Folks who claim that Siegelman and the Minor defendants were correctly convicted often cite the fact that career prosecutors played key roles in the cases. The point seems to be that these nonpolitical appointees must be playing it straight, that they have no political agenda.

But career prosecutors answer to political appointees--Leura Canary in the Middle District of Alabama and Dunn Lampton in the Southern District of Mississippi. And if career prosecutors want to keep their careers on track, it stands to reason that they need to please their bosses.

David Fulcher, by arguing for a jury instruction that he had to know was unlawful, apparently was more interested in career advancement than in the cause of justice.

And that is just one of many examples throughout the Minor transcript of career prosecutors making arguments that clearly are not based in the law. And I can only assume that they knew their arguments were unlawful.

As for the Siegelman appeal, we have shown the following:

* U.S. Judge Mark Fuller, who would rival Henry Wingate in the corruption category, gave an unlawful jury instruction on bribery;

* Evidence clearly did not show a specific quid pro quo, meaning Siegelman should be granted a judgment in his favor, not just a new trial;

* The honest-services mail fraud convictions cannot possibly stand because codefendant Richard Scrushy was qualified to serve on a health-care board, one he had served on under three previous governors. That means the public could not have been deprived of Siegelman's honest services;

* Perhaps most alarmingly, the alleged bribery offenses fell outside the five-year statute of limitations and never should have gone to court in the first place.

Americans are rightly concerned about our unfolding financial crisis. But those concerns should not cause us to lose sight of what has taken place in our justice system over the past eight years.

Our federal judges and U.S. attorneys are appointed through political processes, and that means our justice system is vulnerable to corruption. Don Siegelman has said that Karl Rove figured out that if you control U.S. attorneys and the majority of federal judges, you can wreak all kinds of havoc in the lives of your political opponents.

Siegelman was right on target about that, and we have seen that scenario unfold over the past eight years.

Our goal at Legal Schnauzer has been to show you details on how that has happened: judges improperly excluding expert witnesses; prosecutors making arguments that are not supported in law; judges giving bogus jury instructions.

Those are the "tools of the trade" in a justice system that loyal Bushies have torn asunder.


Anonymous said...

Hey, Roger! Did you just find out about the statute of limitations problem with the Siegelman case? I haven't seen you mention it until you talked about it in Tuesday's column.


P.S. Did you see that USC lost tonight? Mizzou should move one spot in the rankings after that.

legalschnauzer said...

Hey Rick:
I had heard that Siegelman had SOL issues in a general way, but I didn't know about the specifics until I looked at his appeal closely. There's a link to the actual appellate document on my post--thanks to Tommy Stevenson of the Tuscaloosa News for that--and legal junkies might enjoy digging into it. The Siegelman side seems to have pretty compelling arguments.