Wednesday, December 9, 2009

Could Review of Honest-Services Fraud Law Have An Impact on Siegelman Case?

The U.S. Supreme Court is hearing oral arguments this week on cases involving the honest-services fraud statute that has been used in a number of high-profile corruption cases.

The issues at hand, we suspect, are poorly understood by the public, particularly here in Alabama. So we think a couple of key points need to be made:

* Contrary to a report by the Associated Press, the Supreme Court's ultimate findings will not have an effect on the case of former Alabama Governor Don Siegelman--at least not the part involving Siegelman himself.

* Deliberations on the cases are likely to ignore the real problem with the honest-services law, as it was applied in the cases of Siegelman and Paul Minor (Mississippi). In other words, the justices won't want to deal with "the elephant in the room."

The basic mail-fraud statue, 18 U.S. Code 1341, unquestionably is written in a confusing fashion. (The honest-services component is covered at 18 U.S. Code 1346.) But the Associated Press did not do the public any favors when it distributed a story with this headline: U.S. Supreme Court hears fraud law challenge; could affect Siegelman, Scrushy appeals.

The story includes this paragraph:

Former Alabama Gov. Don Siegelman and ex-HealthSouth CEO Richard Scrushy also are appealing their honest services fraud convictions to the Supreme Court.

That information, unfortunately, is incorrect. The U.S. 11th Circuit Court of Appeals overturned the honest-services fraud convictions against Siegelman, so that no longer is an issue in his case. His appeal to the U.S. Supreme Court involves bribery and obstruction of justice.

The 11th Circuit upheld the honest-services fraud convictions against Scrushy, so the cases currently before the U.S. Supreme Court could have an impact on his appeal.

What about that elephant in the room, the issue the legal community does not want to touch? The real problem in the Siegelman and Minor cases was not the honest-services mail fraud statute; the problem was that both cases were overseen by corrupt judges.

Yes, the statute is poorly worded. But my research indicates that is the case with many federal statutes. The key to understanding federal law often is to research the case law. And as we noted in an earlier post titled "Mail Fraud: A Primer," the case law is not all that hard to understand. I don't have the first day of law school, and I figured it out--so federal judges certainly should be able to get it right.

But here's the rub: Some federal judges are corrupt. Mark Fuller, who handled the Siegelman case, and Henry Wingate, who handled the Minor case, definitely are corrupt. They gave unlawful jury instructions and did it in ways that almost had to have been intentional. On some counts, the jury instructions did not even come close to the actual law.

Siegelman (and Scrushy) and Minor were convicted of honest-services mail fraud not because the statute is poorly written, but because the judges did not apply the law correctly.

There's little doubt that federal prosecutors also acted corruptly in the Siegelman and Minor cases, and rogue prosecutors can cause great harm to the public. But as we have learned in the case of former U.S. Senator Ted Stevens (R-AK) a federal judge has the power to oversee bad prosecutors--and make them pay.

Who is watching over bad judges, federal or state? The answer, for the most part, is no one. And that's the overarching problem with our justice system.

We could use some clarity on the honest-services fraud statute, and perhaps the U.S. Supreme Court will provide it. But until we get control over the likes of Mark Fuller and Henry Wingate, our justice system will continue to churn out injustice.


Anonymous said...

I get annoyed when an article has no byline, but then I can see why no one would sign this piece. And is this from the Washington bureau??

Anonymous said...

when you say the problem is that Minor was convicted by a corrupt judge(s) ( and I don't believe it for a minute that he was) If it were true how befitting that what goes around comes around and he gets bit in the BU** by the same system he used to win his megamillions and defraud an untold number of people by corrupting judges. Justice has a way of correcting itself after all I guess. If Minor, Scruggs and seigelman are "political prisoners" then I guess Mr. Scrooge McDuck is a philanthropist. The evidence against them is so overwhelming that to say they are not guilty is so naive it's about like saying that the sun will not rise tomorrow.

legalschnauzer said...

I don't know about the Scruggs case. But you need to educate yourself about the Minor and Siegelman cases. They were wrongfully convicted of the charges against them--and it isn't a close call. You apparently do not like Mr. Minor, and that's fine, but that doesn't change this fact: He was unlawfully convicted. If you want to educate yourself, type "Mississippi Churning" into the search function on this blog, and it will call up articles that show you exactly how he was wrongfully convicted. This isn't a matter of opinion. It's a matter of public record. The same applies to Siegelman.

mikkrikk said...

I suppose that we should not be too amazed that Alabamians believe that there was so much convincing evidence at trial that Siegelman and Scrushy were guilty, since they have only read what is stated in the Newhouse newspapers. Of course they believe there is a mountain of evidence when that is their sole source. The fact is there is no evidence whatsoever that the two even so much as spoke on the phone about any deal, nor was there any testimony that there was a "go-between" involved. The eleventh verified this lack of true evidence when they decided that any agreement did not have to be express and that jurors were free to decide for themselves what was in the mind of the accused. In other words if the prosecutors did a good enough job making things look fishy in spite of the applicable laws, then it is ok to convict.

Batard said...

Scott Horton at Harper's on his No Comment blog says you're right again Roger. Scores of convicted Democrats are going to be loose. It's taken a while but even the far right wing Scalia is disgusted with these kinds of prosecutions. Justice is about to reign. Finally.

Anonymous said...

check out what they did to this guy. Wow its a true shame see it at