Siegelman Resentencing Serves as a Grim Reminder That His Prosecution Was Bogus from the Outset

Don Siegelman

Former Alabama Governor Don Siegelman was resentenced today to serve five years and nine months on top of the time he already has served in federal prison--plus three years of probation, a $50,000 fine, and 500 hours of community service.

All of this for committing what we have termed a "crime that doesn't exist." And that is an accurate statement because U.S. District Judge Mark Fuller did not include the "explicit agreement" language that is required by law to form an illegal quid pro quo in the context of a campaign contribution.

But today's events are disturbing for reasons that go way beyond legal lingo. Lost in all of the reporting about what does or does not constitute bribery in the political realm, is this undisputed fact--the charges against Siegelman and codefendant Richard Scrushy were barred by the applicable statute of limitations.

We have shown in an exhaustive series of posts that Siegelman and Scrushy committed no crime under the "explicit agreement" framework set out in McCormick v. United States, 500 U.S. 257 (1991), which both sides agree is controlling law. But even if the defendants had completed the most flagrant kind of bribery--with an unlawful deal memorialized in writing or tape-recorded conversations--their prosecution still was unlawful.

Why? The government waited too long to bring its case--even with former Siegelman defense attorney Doug Jones helping them by agreeing to extend the statute of limitations.

The undisputed facts are as follows:

* The statute of limitations for a bribery case brought under 18 U.S.C 666 is five years;

* The events constituting the alleged bribery took place in summer 1999;

* The original indictment in the case was dated May 17, 2005;

* The prosecution was late by almost one full year in bringing its case;

* That means the case against Siegelman and Scrushy had to be dismissed as a matter of law.

How could a prosecution proceed when it clearly was untimely? How could this happen?

Well, it happens when the U.S. Department of Justice is politicized as it was under George W. Bush--and as it remains because Barack Obama has refused to clean it up. It also happens when the trial judge is ethically challenged. And Fuller, who has made millions off government contracts from his interest in a company called Doss Aviation, could not have been more pro-prosecution. Here is how we explained it in an earlier post:

So how did prosecutors get away with this? First, they crafted a vague indictment that made it unclear when the alleged events took place. And U.S. District Judge Mark Fuller denied Siegelman's motion for a bill of particulars, which would have forced the prosecution to provide specifics. That probably was the first clear sign that the fix was in on this case.

Today's resentencing was just the latest sign that a fix was in on the Siegelman case. Why are statutes of limitation in place and why are they important? The U.S. Supreme Court explained in a case styled Toussie v. United States, 397 U.S. 112 (1970):

Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time, and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, we have stated before "the principle that criminal limitations statutes are 'to be liberally interpreted in favor of repose,' United States v. Scharton, 285 U. S. 518, 285 U. S. 522 (1932).

Translation: Any close call should go in favor of defendants who face charges that have grown stale. In this case, it wasn't a close call; the government was almost one full year late in bringing charges. Prosecutors in the case not only were corrupt, they were incompetent and lazy. But the Eleventh Circuit refused to follow clear precedent on the issue, claiming defense lawyers did not properly preserve the issue in Siegelman.

If that is the case, the defendants were the victims of grotesque legal malpractice. But it's more likely that they were the victims of a corrupt appellate court that was providing cover for a compromised trial judge. Consider this bizarre statement from the Eleventh Circuit ruling that upheld certain convictions in  Siegelman:

The defendants apparently made a strategic decision not to present a statute of limitations defense at trial. Such a defense would have required them to make an argument to the jury that assumed their guilt on the bribery charges. While defendants are free to make the strategic decision not to do so, they may not later be heard to complain when the claim is held to have been waived.

Why would a statute of limitations (SOL) defense require the defense to admit to guilt on the bribery charge? I have no idea, and the Eleventh Circuit cites no law to support that notion. An SOL defense and any determination of guilt on the bribery charge are separate and distinct issues. Why the appellate panel would link the two is beyond me. It appears to be a sign that the panel had a pre-determined outcome in mind and had to resort to nonsense in order to make it work.

The statute of limitations issue is clearly discussed on pages 57-61 of the Siegelman appellate brief below. Below that, the Eleventh Circuit brushes aside the issue on pages 33-35.

Any citizen who can read those pages and not want to wretch . . . well, a conscience transplant clearly is in order.

Siegelman Appellate Brief--Eleventh Circuit

Siegelman Eleventh Circuit Ruling