Wednesday, July 22, 2009

How the 11th Circuit Cheated Don Siegelman: A Summary

Explosive news has been breaking in recent days from motions for a new trial in the case of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy. It's worth noting that the Siegelman/Scrushy motions would not have been necessary if the U.S. 11th Circuit Court of Appeals had done its job.

We showed in a recent series of posts that the 11th Circuit made multiple unlawful findings in upholding most of the convictions in the Siegelman case. Now might be a good time to review the judicial hatchet job the 11th Circuit administered on the Siegelman/Scrushy appeal.

What did we learn from our multi-part series about the appeal? Clear law required the 11th Circuit to overturn the Siegelman/Scrushy convictions. But the appellate court botched its ruling on at least five key issues. And we're not talking about complicated stuff here. I don't have the first day of law school, and I could rather easily determine the many areas where the 11th Circuit got it wrong. All the court had to do was follow its own precedent--and it couldn't even do that.

How do you explain such judicial butchery? Two words come to mind--incompetence and corruption.

One member of the three-judge panel is in his mid 80s and another is about to hit 80. But I don't think these judges are senile, and thus, incompetent. So I think we are looking at corruption.

Why did the 11th Circuit uphold a trial-court judgment that it had to know was unlawful? I have some theories on that, and we will get to those in a bit. But first, let's review the five key issues where the 11th Circuit got it wrong:

* Statute of limitations--It's undisputed that the alleged actions that made up the government's bribery charge against Siegelman and Scrushy took place outside the five-year statute of limitations. So how did the government get away with bringing this case, much less winning it? It drafted an indictment that was vague, and when Siegelman/Scrushy moved for a bill of particulars that would have required a few specifics, the judge denied it. Defense attorneys raised the limitations defense in a proper manner for a case involving a vague indictment. But the trial court, and the 11th Circuit, wrongfully ruled that they had waived the defense.

* The fundamentals of bribery laws--It's undisputed that the controlling law in the Siegelman case was McCormick v. United States, 111 S. Ct. 1807 (1991). The 11th Circuit admits this and even correctly states that McCormick finds that an "explicit agreement" must be present to obtain a bribery conviction. But the 11th Circuit then turns around and claims the Siegelman team cites the need for an "express agreement." The Siegelman team, however, does not make this argument. Essentially, the 11th Circuit puts words in the mouth of the Siegelman team. And that's how the appellate ruling gets it wrong on the basics of bribery law.

* Jury instructions--This could not be more clear. McCormick requires an "explicit agreement." The trial court's jury instruction did not require an "explicit agreement," and thus was unlawful. But the 11th Circuit let it stand. The trial court's instruction focused on a "specific action." But McCormick makes it clear that bribery is not about any action that the parties might take; it is about an agreement, one that is explicit. The trial court did not follow the law, and the 11th Circuit let the bad jury instruction stand, meaning Siegelman and Scrushy were convicted for a crime that doesn't exist.

* Hearsay--Key testimony came when one former HealthSouth official said another (a non-witness) had bragged to him about helping the company secure a spot on a hospital-regulatory board. Normally, this would be inadmissible hearsay. But the judge allowed it under the "coconspirator exception" to hearsay. For the exception to apply, a conspiracy must involve both the declarant and the defendant against whom the statement is offered. That would be Don Siegelman. But there never was any evidence that Siegelman was involved in a conspiracy involving HealthSouth officials. The coconspirator exception was not applicable. The trial judge allowed it anyway, and the 11th Circuit let it stand.

* Insufficient evidence--At most, evidence showed that Siegelman thought Scrushy expected a spot on a hospital-regulatory board in exchange for his campaign contribution. But the law is clear that evidence of an expectation on the part of one party or another is not enough to support a bribery conviction. There must be evidence of an "explicit agreement" between the two parties. That kind of evidence was not present. But the 11th Circuit let unlawful convictions stand.

So we are back to our earlier question: Why did the 11th Circuit knowingly butcher this appeal? We will offer some theories in an upcoming post.

Meanwhile, all sorts of good stuff is coming out of the motions for a new trial. More is coming on that, too.

1 comment:

Anonymous said...


You know LS, not incompetence when the pattern is proving this is an epidemic of incompetence which has allowed the criminals to be excused since they were | are too incompetent to know the corruption they willingly and knowingly participated in!

For example:

Dr. Richard Cordero, Esq.
Ph.D., University of Cambridge, England 59 Crescent Street, Brooklyn, NY 11208
M.B.A., University of Michigan Business School
D.E.A., La Sorbonne, Paris tel. (718) 827-9521

July 14, 2009

Senator Al Franken
Senate Judiciary Committee
320 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Franken,

I hereby bring to your attention, and explain the significance for the assessment of the integrity and impartiality of Justice Nominee Judge Sonia Sotomayor of, a case that she withheld from you and your Committee.

Indeed, the latter requested in its Questionnaire for Judicial Nominees that she “13.c. Provide citations to all cases in which you were a panel member, but did not write an opinion” and “13.f. Provide a list of all cases in which certiorari was requested or granted”.1

Although the Judge referred you to the Appendix2 for her answer and stated in her letter to you of June 15 that “In responding to the Committee Questionnaire, I thoroughly reviewed my files to provide all responsive documents in
my possession”, she neither included that case in the Appendix nor in either of the supplements
with her letters to you of June 15 or 193 following your requests for more precise answers.

The case that Judge Sotomayor withheld from you is Dr. Richard Cordero v. David Gene and Mary Ann DeLano, 06-4780-bk.4

She knows that case, for she was the presiding judge on the panel that heard oral argument on January 3, 2008, and received the written statement that I
also filed with her on that occasion.5

By then she had been made aware of the importance of the case by the motions judge referring to the panel many of the 12 substantive motions that I filed in that case.6

She was also the first judge listed on the order dismissing the case the following February 7.7

She had to further handle the case because I filed a petition for panel rehearing and hearing en banc on March 14.8

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