A Political Prosecution Flops

We had a small victory for justice in Alabama with news that a mistrial was declared in the prosecution of state representative Sue Schmitz in Decatur.

U.S. Judge David Proctor declared a mistrial Monday when jurors indicated they were deadlocked after deliberating over four days.

Schmitz, a Democrat, had been accused of setting up a bogus job for herself with a community-college program for troubled teens. She was paid $177,251 over 3 1/2 years in her public-affairs position. Schmitz' lawyers argued that she worked for her paychecks, but received little direction from her supervisors.

Alice Martin, U.S. attorney for the Northern District of Alabama, brought the case, and it was viewed by some as the first strike in an effort by Republicans to take over the Alabama Legislature.

Prosecutors said they intended to bring the case again. The Huntsville Times reported that a retrial could begin as early as November, but it is more likely that a new trial would not begin until after the first of the year.

With that in mind, Sue Schmitz' fate probably will ride on the outcome of the November 4 presidential election.

We noted in a previous post, that the government's case against Schmitz was preposterously weak. Huffington Post's David Fiderer, who has trained as a lawyer and works in international banking, called the government's case "nonexistent" and noted that it probably should have been dismissed by the judge before ever reaching a jury.

One can only imagine why the case actually went to a jury--and resulted in a hung jury, as opposed to an acquittal.

But the mistrial probably will be the same as an acquittal--if Barack Obama is elected president in November. It's hard to believe that an Obama Justice Department would pursue the Schmitz case.

Even if John McCain wins, it's possible that Alice Martin will be headed for the exits. As one of the most notorious "loyal Bushies" of the past eight years, one who is being investigated by at least two federal agencies, Martin could pose a political problem for McCain--and he might want to distance himself from prosecutors who have been implicated in the evolving Bush Justice Department scandal.

Of course, McCain has said he would appoint multiple Democrats to his cabinet. Would he consider a Democrat as attorney general, as a way of showing he is serious about cleaning up after eight years of George W. Bush?

What will be the fallout from the Schmitz case? Here's a take from our friends at folo, a hard-core law blog with a focus on Mississippi and the Deep South.

And here's an interesting take from Glynn Wilson at Locust Fork World News & Journal. Wilson includes this assessment from Scott Horton, legal affairs contributor for Harper's magazine and a law professor at Columbia University:

“The prosecution had no case at all,” said New York attorney and writer Scott Horton, who has followed the Justice Department scandals for Harpers.org. “The great surprise was that the court allowed this case to go to the jury in the first place.”

Wilson also has this quote from Birmingham attorney Doug Jones, who represents several state legislators who have been under investigation:

According to Birmingham attorney Doug Jones, who is representing other legislators targeted in the Alice Martin-Bush Justice Department probe, the mistrial puts a serious block on what the prosecution thought would be a “slam dunk.”

“Any mistrial is a setback for the government, but this one has to give them concern about going forward on a number of fronts, not just a possible re-trial,” he said. “Regardless of the breakdown of the jury vote, this mistrial calls into question the entire theory of the government in trying to make performance in employment that the government doesn’t think was up to par into a crime. The entire trial seemed more like an employment hearing than a criminal trial.”