What About the Motives of Prosecutors In the Alabama Bingo Trial?

Myron Thompson

A federal judge last week correctly pointed out the impure motives of Republican legislators who served as witnesses in the Alabama bingo trial.

U.S. District Judge Myron Thompson also had a point when he stated in a new order that a prominent defendant had financial incentives to commit acts of bribery.

But Thompson ignored the most important question: What about the motives of federal prosecutors who launched a clearly flawed case in the first place?

We do have some interesting news on that front. The Montgomery Advertiser reports that local prosecutors Louis Franklin and Steve Feaga have been removed from the bingo-trial team. That means the case will be handled totally by Washington, D.C.-types on the second go-around.

That, however, does not address the big question about the prosecutors--and Thompson did not address it in last week's order either. (See the full order below.)

Yes, Sen. Scott Beason (R-Gardendale) and Rep. Benjamin Lewis (R-Dothan) revealed they were driven not by a desire to clean up corruption in Montgomery, but by racist thinking and political opportunism. And yes, VictoryLand owner Milton McGregor was under the kind of financial duress that could lead a man to cross the boundary from lawful lobbying to unlawful bribery.

But regardless of what one might think about Beason, Lewis, and McGregor, they would not have been in position to commit questionable acts if federal investigators and prosecutors had not launched a bogus case to begin with.

The important questions in the Alabama bingo trial are as follows:

* What motivated federal prosecutors to bring a case that was so flawed it produced zero convictions the first time around?

* Why do federal prosecutors seem determined to retry the case on issues where the original jury was deadlocked?

* What hugely important constitutional protections did the bingo prosecutors violate?

That last question represents the "big enchilada" because it goes to the heart of the political prosecutions that started under the George W. Bush administration and have continued under the Barack Obama "justice" department.

That last question goes to the heart of the Don Siegelman case in Alabama, the Paul Minor case in Mississippi, the Cyril Wecht case in Pennsylvania, the firings of U.S. attorneys from one end of the country to the other . . . well, you get the idea--it's a big deal.

Which makes us wonder why Myron Thompson doesn't raise it? Here's our best guess: Myron Thompson is a lawyer, and the prosecutors are lawyers--and lawyers are duty bound by the unwritten rules of their corrupt tribe to protect one another. That's why, we suspect, Myron Thompson feels free to rip into non-lawyers such as Scott Beason and Milton McGregor. But question the motives of federal prosecutors? It's the rare judge who will do that. And Myron Thompson is not that kind of ballsy judge.

In his order, Thompson does briefly touch on the motives of prosecutors. But he does not do it in any substantive way:

To be absolutely clear, there is no indication whatsoever that the prosecutors in this case condoned or shared any of the biases of their cooperating witnesses. But eliminating bribery will treat only one symptom of political corruption in this State. To cure the larger disease, it is essential to address with equal force the politics of racial prejudice and exclusion.

Why is there "no indication whatsoever" that prosecutors were driven by biases? Because no one--including Thompson--has scrutinized them.

The problem with the Alabama bingo prosecution has been evident from the outset: At the heart of the case were efforts by lobbyists to influence legislators on bingo-related bills. Evidence shows that the lobbying was a two-way street--some influence peddlers favored electronic bingo, others were against it.

But prosecutors scrutinized only the actions of those who were for electronic bingo. God only knows how many acts of bribery and fraud were committed by anti-bingo forces. The public will never know about those because they did not fit into the prosecutors' agenda.

That, by definition, is a political prosecution--and the Fifth Amendment of the U.S. Constitution prohibits it. Judge Thompson surely knows that. So why is he ignoring the issue?

We have not ignored the issue here at Legal Schnauzer. In fact, we faced it head on in a post titled "Don Siegelman and the Evils of a Political Prosecution." Here are the basics:

The U.S. Supreme Court has held "selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints." U.S. v. Batchelder, 442 U.S. 144 (1979).

The nation's highest court also has found that the Equal Protection Clause prohibits selective enforcement "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448 (1962).

Clearly, enforcement based on political affiliation falls under the kind of arbitrary classification that is prohibited by the Fifth Amendment.

Here are the specifics:

Federal courts generally have accepted the two-pronged test for selective prosecution set out in U.S. v. Berrios, 501 F. 2d 1207 (1974):

To support a defense of selective or discriminatory prosecution, a defendant bears a heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’

What does this mean in everyday lingo? Perhaps it best can be explained by looking at the Siegelman case.

The record is clear that Siegelman and former HealthSouth CEO Richard Scrushy violated no law because an explicit quid pro quo ("something for something" agreement) was not present--and federal judge Mark Fuller gave improper jury instructions on that point of law. But even if the jury instructions had been correct--and the evidence had shown an unlawful agreement--the Siegelman prosecution still would have been unlawful. That's because prosecutors did not pursue "similarly situated" individuals who had engaged in roughly the same conduct. In legal terms, prosecutors engaged in "intentional and purposeful discrimination" against Siegelman and Scrushy--the defendants were "singled out."

Prosecutors are engaging in the same behavior against McGregor and the other bingo defendants.

Judge Myron Thompson got some things right in last week's order. But he did not even address the most important issue of all.


Bingo Order--GOP Racists