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.