Tuesday, March 13, 2012

Judges Make All the Difference in Alabama Federal Corruption Trials

Milton McGregor

Why were gambling magnate Milton McGregor and five other defendants found not guilty on all charges last week in the federal bingo trial in Montgomery? Why were former Governor Don Siegelman and former HealthSouth CEO convicted almost six years ago in the same court, on facts and law that were remarkably similar to those in the bingo case?

Reporter Kim Chandler used roughly 80 column inches in Sunday's Birmingham News to address those questions. But in two stories that took up almost all of one page and a nice chunk of another, Chandler never addressed the No. 1 reason the cases had radically different outcomes. (See the stories here and here.)

Comparing two criminal trials is tricky because they often come with multiple variables, including different defendants, different prosecutors, different defense lawyers, and different jurors. But the most important difference in the Siegelman and McGregor cases was the most obvious: They had different judges.

Siegelman and Scrushy had the misfortune to draw U.S. District Judge Mark Fuller, a George W. Bush appointee who had been on the federal bench for less than four years at the time of trial. McGregor and his codefendants had the good fortune to draw U.S. District Judge Myron Thompson, a Jimmy Carter appointee who has served on the bench for almost 32 years.

The experience factor is not the biggest difference between Fuller and Thompson. I have been around judges enough to know that an inexperienced judge can be every bit as fair and competent as a veteran judge. The key factor is not experience, but ethics (and respect for the law). Thompson has a huge edge over Fuller in both of those critical areas--and that's the No. 1 reason McGregor and Co. were acquitted while Siegelman and Scrushy still are battling to overturn their unlawful convictions.

A legal textbook could be written, I feel certain, on the different ways Thompson and Fuller handled their respective trials. But it really boils down to one issue: jury instructions. Many citizens probably figure that jury instructions should be relatively simple; after all, we expect a judge to know the applicable law and be able to communicate it to jurors. How hard could it be? Well, it isn't that hard, but trial judges have considerable discretion in the preparation of jury instructions.

That's why a judge with a political axe to grind--and considerable evidence suggests Fuller had one against Siegelman--can tailor jury instructions that strongly favor the prosecution. That's exactly what Fuller did, issuing jury instructions that differed in key respects from the actual law. That meant Siegelman and Scrushy wound up being convicted of a "crime" that does not exist under the law.

Thompson, on the other hand, gave jury instructions that matched longstanding federal precedent for bribery in the context of campaign contributions. The McGregor jury, in other words, deliberated the case based on the actual law, while the Siegelman jury did not. That is the No. 1 reason for the different outcomes.

That should be deeply disturbing to all citizens, especially given our constitutional system that is supposed to guarantee equal protection under the law. The two Alabama "corruption" trials did not render anything close to equal protection.

If anything, the chances of convictions should have been stronger in the McGregor case than in the Siegelman case. After all, the McGregor prosecutors did have tape-recorded evidence that showed various defendants discussing possible campaign contributions and votes on electronic-bingo legislation. The Siegelman prosecutors offered almost no evidence of a "corrupt agreement," the key component in a federal bribery case.

Don Siegelman
And yet, the Siegelman defendants were convicted, and the McGregor defendants were acquitted. How can that be? Here is a brief explanation of how one judge got it right and one got it wrong, on almost identical issues of fact and law:

Both sides, in both cases, agreed 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.”

You will notice that the crux of the finding in McCormick is an "explicit promise." At its core, federal bribery is more about agreement than about an act. And that agreement must be explicit.

Fuller, in his jury instructions, turned the law on its head. He was relatively subtle about it, but a close reading shows that he got it wrong--and almost certainly did it intentionally. 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.

In Fuller's version of the law, the focus is on the action. It must be "specific," while the agreement . . . well, it can be loosey goosey; it doesn't have to be explicit.

Now, let's consider the jury instructions that Thompson gave in the bingo trial. (You can read the full instructions at the end of this post.) The key portion of the instructions is on pages 18-23, and here is the heart of the matter:

Lobbyists, as well as private individuals and other entities, often donate to the political campaigns of public officials and there is nothing illegal about this practice. Official acts that advance the interests of a lobbyist's clients, taken shortly before or after campaign contributions are solicited or received from the lobbyist, can, depending on the circumstances, be perfectly legal and appropriate.

Therefore, the solicitation or acceptance by an elected official of a campaign contribution does not, in itself, constitute a federal crime, even though the donor has business pending before the official, and even if the contribution is made shortly before or after the official acts favorably to the donor.

However, when there is a quid pro quo agreement, orally or in writing, that is, a mutual understanding, between the donor and the elected official that a campaign contribution is conditioned on the performance of a specific official action, it constitutes a bribe under federal law.

Both versions, as presented by Fuller and Thompson, are murky. A reasonable person might argue that federal bribery law needs to be written clearly or wiped from the books, at least when allegations involve campaign contributions. (In fact, I would make exactly that argument; in the alternative, I would push for public financing of political campaigns.)

As it stands now, however, federal bribery law focuses on a corrupt agreement that must be explicit. It is not so much about an act as about an agreement to take action. Thompson spelled that out in his instruction; Fuller did not.

Chandler sought comments about the criminal trials from all of our usual local suspects--former federal judge and Cumberland School of Law dean John Carroll, former U.S. attorney and Haskell Slaughter lawyer Doug Jones, and former federal prosecutor and current defense attorney Ron Brunson. They ignored the most important issue connected to both trials. Consider this pearl from Carroll about the bingo case:

"It's the typical kind of evidence you would find in this kind of a case. I think there are enough facts (that) with a particular jury and a particular set of prosecutors you may have gotten a conviction," said Carroll. . . .

Notice that he makes no mention of the judge, in this quote or anywhere else in the story. Chandler's stories compare and contrast the McGregor and Siegelman cases, but none of the experts addresses the difference in the judges. Perhaps that is because Chandler did not ask them about it. Perhaps it is because the experts, and the reporter, did not want to admit that one judge can be competent and honest while another one is neither.

That, however, is the sad truth about the two Alabama "corruption" cases. And it is the No. 1 reason the McGregor defendants are free, while Scrushy is in federal prison and Siegelman is struggling to keep from going back.

Alabama Bingo Jury Instructions


Anonymous said...

There is also the Feaga-Franklin Factor: The F-sey twins were pulled off the case by USA Beck, preventing the coaching of witnesses Gilley, Pouncey for trial testimony. No "Baileyesque" question rehearsals x 70. Sucks for them. Hope they enjoy prison.

Anonymous said...

So much for "..equal protection under the law.." Guess our forefathers never foresaw such a sad state of affairs in the judgeship arena.

Danny Mullen

David said...

While Fuller was a student at the University of Alabama, his father was still living and practicing ing the firm Fuller would later inherit, The firm represted Milton McGregor when he was starting his dog track in Shorter, AL. McGegor Even moved from Geneva to Enterprise and lived in the the same part town as members of the firm. Bingo!

legalschnauzer said...


Interesting. Does that firm still exist?

David said...

After Fuller leftvand one of the other partners retired, the remaining partner Joe Cassady, Sr. and his son changed the name ofthe firm to Cassady & Cassady, L.L.P.

legalschnauzer said...

Interesting, David. Thanks for the info.

Anonymous said...

Not to take issue with your conclusion or particular political bent concerning the two judges and two differing outcomes, I instead wish to comment on your misstatement re the crux of McCormick being an "explicit promise". The ruling clearly reads "....OR undertaking....", which is inclusionary - and not exclusionary language. Since an undertaking can most certainly be an 'act' and explicit is interchangeable with the word specific, I think you do your readers an injustice by completely ignoring a vital and substantive portion of the McCormick quote: the explicit promise OR UNDERTAKING should be read as exactly that. Your conclusion that the crux of the judgment is solely an explicit promise is therefore inaccurate.

Just bugs me when people carve out particular words due to convenience, general ignorance in reading law or honest mistake. I fully believe you fall into the final category, not that my opinion matters (or should matter) to you. I feel oddly compelled to point out your error, perhaps because it forms the basis for your comparison. Explicit/specific promises or undertakings/acts are both covered by a strict reading of McCormick.

Love reading your blog, btw. I'm a former Magic City resident and discovered you two years ago.

MMW, J.D. (non-practicing sort)

legalschnauzer said...


Thanks for making a good point. In my view, your comment helps drive home the need for the U.S. Supreme Court to address this issue and clarify the law. The general finding in McCormick was that a "quid pro quo" is required for a conviction in the context of a campaign oontribution. And the McCormick court describes a "quid pro quo" this way:

"McCormick's contention that conviction of an elected official under the Act requires, under all circumstances, proof of a quid pro quo, i. e., a promise of official action or inaction in exchange for any payment or property received . . . "

That's where the case seems to focus on the importance of a promise, and that's why I stated that the crime largely is about a corrupt agreement as opposed to a corrupt act. But you are correct that the term "undertaking" in the passage cited in the post seems to imply that a "specific action" is enough.

One could make a legit argument, I think, that the court contradicts itself in McCormick.

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