Wednesday, June 24, 2009

The Cheating of Don Siegelman, Part I

We recently introduced our series of posts about the U.S. 11th Circuit Court of Appeals and its unlawful ruling on the Don Siegelman case. Now it's time to dive into the details. Here is part 1 of "The Cheating of Don Siegelman."


The U.S. 11th Circuit Court of Appeals cheated former Alabama Governor Don Siegelman in multiple ways. The most glaring example involves the statute of limitations, so we will start there.

It's undisputed that the government was tardy in bringing bribery charges against Siegelman and codefendant Richard Scrushy.

All of the activity that constituted the alleged bribery took place in summer 1999. But the government's original indictment was dated May 17, 2005. That's almost one full year past the five-year statute of limitations.

Even if Siegelman and Scrushy had committed the worst sort of bribery--and the facts and the law show that they didn't commit bribery at all--the government missed the boat by a long shot.

So how did prosecutors get away with this? First, they crafted a vague indictment that made it unclear when the alleged events took place. And U.S. District Judge Mark Fuller denied Siegelman's motion for a bill of particulars, which would have forced the prosecution to provide specifics.

That probably was the first clear sign that the fix was in on this case.

More importantly, prosecutors argued that Siegelman did not raise the limitations issue in the proper way, that he essentially waived that defense. Both the trial and appellate courts have agreed with the government.

But they are wrong. And here is why.

The 11th Circuit based its finding on two cases, neither of which is applicable to the Siegelman case.

One is United States v. Ramirez, 324 F.3d 1225 (11th Cir. 2003). Ramirez involved a limitations defense raised by way of a post-trial Rule 29 motion, the same method Siegelman's attorneys used. And the defense was rejected, as it was in the Siegelman case.

But here is where the cases differ: In Ramirez, the court found "when a statute of limitations defense is clear on the face of the indictment and requires no further development of facts at trial, a defendant waives his right to raise that defense by failing to raise it in a pretrial motion.”

Ramirez does not apply to the Siegelman case because the limitations defense was NOT clear on the face of the indictment. In fact, the indictment in the Siegelman case said the alleged crimes took place “[f]rom on or about July 19, 1999, and continuing through on or about May 23, 2000 . . .”

On its face, the indictment was unclear. It cites a first date that is way outside the statute of limitations and cites a second date that is inside the limitations period--barely. Fuller did not force the government to make the indictment clear, so Ramirez does not apply.

Of course, if Fuller had forced prosecutors to present a clear indictment, the case would have been over with an acquittal for Siegelman and Scrushy. And the judge certainly didn't want that. So he cheated them.

The 11th Circuit also cited United States v. Najjar, 283 F.3d 1306, 1308 (11th Cir. 2002) for its proposition that “the statute of limitations is a matter of defense that must be asserted at trial by the defendant and that failure to do so results in a waiver." The 11th Circuit says, "Other circuits agree," and proceeds to cite a number of other cases.

But the appellate panel got it wrong. The question in Najjar was this: Can a limitations defense be waived in a plea agreement? The Siegelman case had nothing to do with a plea agreement. Najjar does not address the same issues that are raised on the Siegelman appeal. As lawyers like to say, the two cases are not "apposite."

Other cases cited by the 11th Circuit involve instances where a limitations defense was raised for the first time on appeal. It's undisputed that raising such a defense for the first time on appeal is improper. But Siegelman did not do that.

He raised the defense in a post-trial Rule 29 motion, which the 11th Circuit has found is proper. In fact, those very circumstances were present in Phillips v. U.S., 843 F.2d 438, 441-43 (11th Cir. 1988). In Phillips, a motion was filed after trial, and the 11th Circuit ordered a judgment of acquittal based on the statute of limitations.

The Phillips court stated the following:

Statutes of limitations, both criminal and civil, are to be liberally interpreted in favor of repose. United States v. Marion, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468, 480 n. 14 (1971); United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055, 1059 (1968); United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932). In the criminal law area, such an interpretation protects the defendants' right to be free from defending against overly stale criminal charges. As the Supreme Court observed in Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161 (1970):

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.

On the Siegelman appeal, the 11th Circuit completely reversed itself, failing to follow its own precedent in Phillips.

And it butchered two fundamental legal concepts:

(1) Siegelman and Scrushy had to defend themselves against allegations that had become so obscure that the prosecution couldn't provide any specificity on the dates involved.

(2) The prosecution was lazy and tardy in its investigation--and federal judges let them get away with it.

How nuts is the 11th Circuit's finding?

Imagine that you are charged in your town with jaywalking, which has a one-year statute of limitations. You get to court and find that the prosecution's complaint doesn't say when you jaywalked, it doesn't say where you jaywalked, it doesn't say who witnessed you jaywalking.

You tell the judge, "How am I supposed to defend myself against this?" The judge says, "I don't know, but you're going to have to. Good luck."

That's essentially what Don Siegelman and Richard Scrushy faced. The prosecution failed in its duty at every step. And both trial and appellate judges let them get away with it.

This is scary stuff, folks. And there is more to come.

(To be continued)


Anonymous said...

Legal Schnauzer you cannot go and obtain your law degree without having some COLLEGIAL training: (1) NEVER call the judicial system liars, this is a cardinal sin. These judges, etc. do not lie, they rule accordingly, to the 'merits' of the case - or as in Don Siegelman, no facts or merits --- well then, make 'em up; (2) NEVER say the judicial system cheats! The system does not cheat, it simply makes certain the status quo for the super rich elite stands as the purpose for "justice to be served" (on a dish cold as Don Siegelman has found).

In my own case, the attorney-debt-collectors attempted a forced agreement and there were absolutely NO NUMBERS. For real - not any numbers to obtain an APR.

But hey de ho, the federal court evidently has never learned math because these attorney-debt-collectors practice the no number routine regularly and collectively AND

THE COURTS ARE TOO IGNORANT ABOUT HOW THE MONEY SYSTEM WORKS: Annual Percentage Rates are what determine a "debt."

Not in the US Federal Court it appears --- because "they do NOT have jurisdiction over the Federal Reserve System."

Thus, with Don Siegelman it is about statutes and other laws of lawlessness, just as it is with the APR and our system of "checks and balances."

No arithmetic, no integrity and therefore, no such thing as an honest business exchange in America.

Recently a writer in Europe stated that America is run by crooked lawyers. I am beginning to believe this to be true.

We are in serious trouble when the courts are the deciders and the decision makers are other than highly intelligent, honest, exchangers of fair trade.

Robby Scott Hill said...

Lower court judges do not always follow the law. Sometimes this is unintentional, as when an infielder in Major League Baseball misses or drops a ball he should have caught, but sometimes it's sinister like the unintentional, intentional walk where the pitcher purposefully pitches wide to a power hitter so he never gets a chance to hit the baseball, but to the eye of the untrained baseball fan, it looks like the batter got a fair shake.

They pitched wide to Don Siegelman's Lawyers. They never got a chance to take a swing at a ruling that followed the law. The US Court of Appeals walked the batter to the next level of the appellate process, but sometimes the unintentional, intentional walk comes back to bite you in the ass because you've loaded the bases and the new guy who just came up from AAA is a better hitter than the opposing manager imagined.

The appeals process is a money game. How much cash do you want to fork over to the appellate courts on a 50/50 chance that they will follow the law? People who should have won at trial court are forced to hand over thousands of dollars in filing fees to get the ruling they deserved. Most find it less, expensive and less time consuming to shut up and go away. Only the wealthy or well sponsored have the money to play the appeals game.

Some get justice on appeal, but some only get a new trial in front of the same judge that denied them justice the first time. Many wind up spending all their money just to rack up another loss and get time added to their original sentence or more money added to the first judgment.

Sometimes it's best just to start serving your time or pay the judgment, but unlike many who are not attorneys, Don Siegelman gets to keep his law license and try to earn some serious cash while his appeal is pending. If he gives up now, he loses his law license because of the felony conviction and the ability to earn enough money to pay for his appeals. Siegelman should keep fighting because if he loses now, he goes to prison for many years and will not be a lawyer when he is released.

legalschnauzer said...

Excellent analysis. Thanks so much for the insight. Like most Americans, I had no clue about the appellate process--state or federal--before encountering our legal difficulties. I had no idea how expensive it is. I had no idea that appellate judges can get by with stamping "affirmed" on a piece of paper, without explaining anything. And even when they do "explain" their ruling--as in the Siegelman case--there's a good chance it is bogus.

You've provided a very important comment, and I hope LS readers will check it out closely.