Wednesday, July 1, 2009

The Cheating of Don Siegelman, Part V

We've shown that, in upholding the convictions against former Alabama Governor Don Siegelman and former HealthSouth CEO Richad Scrushy, the U.S. 11th Circuit Court of Appeals committed one error after another.

These errors were in crucial areas: statute of limitations, elements of bribery, jury instructions, and hearsay.

Finally, we turn to the evidence itself. Was it sufficient to prove bribery? The answer is no.

The key testimony in the entire trial was from Siegelman aide Nick Bailey. Here's how it went:

The crucial testimony of star prosecution witness Bailey was as follows: that he asked Governor Siegelman what Scrushy was “going to want for that [campaign contribution]? And his response was, the CON Board....” Bailey then testified he commented: “I wouldn’t think that would be a problem, would it?” and that Governor Siegelman responded: “I wouldn’t think so.” [R36-673 p. 268 (Tr. 507)(emphasis supplied)].

But this falls well short of the explicit quid pro quo standard required for a bribery conviction that involves a campaign contribution. As the Siegelman team argued:

Taken for all that it is worth, Bailey’s testimony shows at most that Governor Siegelman knew, or at least thought, that Scrushy wanted a C.O.N. Board appointment in recognition of the contribution--and that Governor Siegelman didn’t think that making such an appointment would present a problem. Governor Siegelman knew or thought that Scrushy wanted it, and he ultimately appointed him. But what is missing is precisely what is required by the very concept of “explicit quid pro quo”: an express discussion between Governor Siegelman and Scrushy to the effect of “I will make this contribution, and in exchange for this contribution you will appoint me. Are we agreed on that?” “Yes we are.” That is the sort of conversation that would constitute an explicit quid pro quo--not merely one party’s thinking something like “I know or I think I know what my contributor wants, and I plan to give it to him.”

The 11th Circuit ruled that the jury was free to "infer" that a quid quo pro was present, even though the evidence showed that no explicit agreement existed. This, as Siegelman has stated publicly several times, is a radical departure from established bribery law.

The jury was able to make such a faulty "inference" largely because U.S. District Judge Mark Fuller gave an incorrect jury instruction. The 11th Circuit, not surprisingly, said the unlawful jury instruction was A-OK.

What do we learn from the 11th Circuit's butchery of the Siegelman case? We will address that question next.

(To be continued)

Previously . . .

* Here Is How An Appellate Court Cheated Don Siegelman

* The Cheating of Don Siegelman, Part I (statute of limitations)

* The Cheating of Don Siegelman, Part II (fundamentals of bribery)

* The Cheating of Don Siegelman, Part III (jury instructions)

* The Cheating of Don Siegelman, Part IV (hearsay)


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