Siegelman Convictions Hang on the Definition of One Word

Don Siegelman

After more than 10 years of investigations, prosecutions, and appeals, the convictions in the Don Siegelman case essentially stand on the definition of one word.

The U.S. Eleventh Circuit Court of Appeals issued a 65-page opinion earlier this week that upheld most of the convictions against Siegelman and codefendant Richard Scrushy. Despite all of that verbiage, the case pretty much boils down to one question: What is the meaning of the word "explicit"?

Does it alarm you that federal prison sentences for two American citizens could boil down to the meaning of one word? It should, especially when a federal appeals court in the Siegelman case accepts a definition of that word that runs contrary to U.S. Supreme Court precedent.

The Siegelman case mainly involves charges on bribery, honest-service fraud, conspiracy, and obstruction of justice. But the whole case hinges on the bribery counts. And those counts hang on a debate about the meaning of the words "explicit" and "express."

All sides seem to agree that the binding precedent in a bribery case involving campaign contributions is McCormick v. U.S., 500 U.S. 257, (1991) which holds:

. . . only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.”

The Siegelman case involved a campaign contribution, and everyone involved agrees McCormick is the binding case. But the record clearly shows that trial judge Mark Fuller did not give a jury instruction in keeping with McCormick. Here is what Fuller told the Siegelman jury:

A Defendant does not commit a crime by giving something of value to a government official unless the Defendant and official agree that the official will take specific action in exchange for the thing of value.

Anyone with minimal reading skills can see that is not the same as the McCormick finding. Bribery law historically has focused on an agreement rather than an action, and McCormick reflects that. Politicians take "actions" all the time--and they can only become unlawful if there is a corrupt "explicit" agreement involved.

Fuller's instruction, however, turned the law on its head, focusing on an action and not an agreement. The Eleventh Circuit has said Fuller's instruction was OK because it was in line with another case, Evans v. U.S., 504 U.S. 255 (1992). But Evans did not involve a campaign contribution, so it is not applicable to the Siegelman case; the alleged facts and legal issues in the two cases are radically different.

The Eleventh Circuit muddies the water further by stating that Siegelman's lawyers claim an agreement must be "express" (memorialized in writing, etc.) rather than "explicit." This appears to be a classic red herring because Siegelman's lawyers do not make that claim. They state, correctly, that McCormick is the guiding law for a bribery charge involving campaign contributions.

The oddities in the Eleventh Circuit's findings do not end there. In fact, there are so many that we can't begin to cover them all. But consider this:  The three-judge panel, on one hand, extols the work of the Siegelman jury:

This is an extraordinary case. It involves allegations of corruption at the highest levels of Alabama state government. Its resolution has strained the resources of both Alabama and the federal government.

But it has arrived in this court with the “sword and buckler” of a jury verdict. The yeoman’s work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama were asked to sit through long days of often tedious and obscure testimony and pour over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. Often at great personal sacrifice. Though the popular culture sometimes asserts otherwise, the virtue of our jury system is that it most often gets it right. This is the great achievement of our system of justice. The jury’s verdict commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).

Sounds like the jury was pretty smashing, doesn't it? (And what, by the way, is a sword and buckler?) But later, in the same opinion, the Eleventh Circuit reverses two honest-services fraud counts against Siegelman and says, in essence, the jury was a bunch of clods:

In view of this absolute lack of any evidence whatsoever from which the jury could infer that Siegelman knowingly agreed to or participated in a broader scheme that included Scrushy’s alleged subsequent self-dealing while on the Board, we shall reverse Siegelman’s convictions on Counts 8 and 9.

Was the jury made up of enlightened citizens or a bunch of dimwits? The Eleventh Circuit can't seem to make up its mind.

Even more strange, the Eleventh Circuit already had reversed Counts 8 and 9 against Siegelman in its previous ruling from 2009. Did the three-judge panel bother to review its own work before writing its most recent ruling?

The work of the Eleventh Circuit on the Siegelman case can only be described as a "fiasco." And there is no doubt about what that word means.