Monday, February 18, 2013

U.S. Supreme Court Must Face A Comedy Of Errors In Considering A Review Of The Paul Minor Case

Paul Minor

How entrenched is the rot in our federal judiciary? How grotesque is the corruption and incompetence in U.S. courtrooms?

Those questions perhaps can best be answered by reviewing the Bush-era Paul Minor prosecution in Mississippi. The Supreme Court of the United States (SCOTUS) now is considering a petition to review the Minor case and overturn the convictions of three men who went to federal prison for crimes they did not commit--in fact, for "crimes" that do not exist under federal law.

A decision on whether to review Paul S. Minor v. United States of America is expected any day from the high court. (The petition for certiorari review can be viewed at the end of this post.) If SCOTUS refuses to review Minor, it will be giving tacit approval to the current dysfunctional state of our federal justice system. The situation is particularly dire in the Fifth Circuit and the Eleventh Circuit, which stretch across the Deep South from Florida to Texas.

The Eleventh Circuit (Florida, Georgia, Alabama) is based in Atlanta, and its three-judge panel of right-wing nominees butchered the case of former Alabama Governor Don Siegelman. The Fifth Circuit (Mississippi, Louisiana, Texas) is based in New Orleans, and it performed a similar hatchet job on the Minor case.

Portions of the certiorari brief in Minor describe the Fifth Circuit's actions in almost comedic terms. In fact, the appellate court's handling of the case would be downright laughable--if the stakes were not so high. Two citizens, former attorney Paul Minor and former state judge John Whitfield, currently reside in federal prisons because of convictions that are not supported by fact or law. A third defendant, former state judge Wes Teel, was released in 2012 after serving his sentence. A fourth defendant, former state judge Oliver Diaz, was forced to endure two trials before being acquitted both times.

Here is the gist of Minor's argument before SCOTUS: The bribery convictions already have been overturned, but the Fifth Circuit upheld honest-services fraud convictions; that ruling was incorrect based on the trial-court record, but it becomes doubly wrong in light of the U.S. Supreme Court's holding in a 2010 case involving former Enron executive Jeffrey Skilling. The high court found in Skilling that the honest-services statute applies only in cases involving bribes and kickbacks. The high court also used Skilling to establish a uniform national standard for honest-services fraud.

And that brings us to one of many oddities in Minor. At the time the case went to trial, the federal circuits were divided on the role alleged state-law violations play in prosecutions under the honest-services statute. In the Fifth Circuit, proof of a state-law violation was an indispensable element of the crime, under a case styled U.S. v. Brumley, 116 F. 3d 728 (5th Cir., 1997). In other circuits state law was irrelevant.

That was a problem because state bribery laws, for example, vary wildly. In fact, they vary wildly just among the three states that make up the Fifth Circuit. At the time of the Minor trial, a defendant could be found guilty of a federal crime, based on a state-law violation in Mississippi, while the same behavior would not allow for conviction next door in Louisiana.

One outcome of Skilling is that SCOTUS cleaned up this mess and established a uniform national standard for honest-services violations, drawing on federal statutes and not state laws.

And that is where comedy enters the picture. When Minor was argued before the Fifth Circuit, post Skilling, even the government conceded the new opinion had radically changed the playing field, meaning the trial-court's jury instructions now were incorrect. But the Fifth Circuit upheld the convictions anyway?

Albert Alschuler, the criminal-justice expert who prepared the pending Minor petition, seems baffled by that one. This is from page 5 of the Minor petition for certiorari:

The Fifth Circuit's error was especially egregious because the government expressly and repeatedly waived any claim that the district court's instructions were correct. Prior to Skilling, Minor sought interlocutory review of a Fifth Circuit decision affirming some of his convictions and reversing others. After he filed his petition but before the government responded, this Court decided Skilling. Citing Skilling, the government then declared, "The [district] court's reliance on state law was incorrect because the honest-services statute 'establish[es] a uniform national standard.'"

The government went on to acknowledge that the instructional error was "plain." But that still was not enough for the Fifth Circuit to overturn clearly wrongful convictions. Alschuler adds this in his brief, perhaps to drive home the absurdity:

The government made the same concession in its brief to the Fifth Circuit. It did so again in oral argument, even after a panel member declared that she was "sort of appalled" by the government's concession.

Yes, a member of the Fifth Circuit Court of Appeals said she was "sort of appalled" because the government admitted a point of law that was beyond dispute. That's what passes for "jurisprudence" in postmodern federal courts.

The jury instructions at the Minor trial were hopelessly incorrect, on multiple grounds, long before Skilling came down. But the latest standard makes them even more wildly off target.

How goofy were the Minor jury instructions? The current petition before SCOTUS shines considerable light on that question. And that's where the comedy of errors continues.

(To be continued)


Raymond said...

LS, you are laying some heavy duty legal stuff on us today. It's not easy to get through it, but I'm glad I made the effort. You've convinced me that this Minor case was a "comedy of errors" that ranks right up there with Siegelman on the scales of injustice.

Anonymous said...

To think that three citizens went to federal prison in this goofy case is sickening. And the accused just happened to oppose the Rove/U.S. Chamber transformation of state courts in the South . . . well, it stinks.

Cheryl said...

Here is something I hope your readers will consider: Can you imagine having a loved one in federal prison, when even the prosecution admits the jury instructions were incorrect? I don't know how the families of the Minor defendants have managed to keep their sanity.

legalschnauzer said...

Anon at 8:11--

You raise an extremely important point. Minor was a trial lawyer who won big verdicts against corporations, especially against the asbestos and tobacco industries. Teel and Whitfield were state judges who tended to give regular citizens a fair shake against corporate defendants. That's why they were targeted, and that's why the federal trial judge had to resort to bogus jury instructions to achieve convictions.

Spasmoda said...

Why are jury instructions left to the discretion of a federal judge? Shouldn't they be standard across the board?

legalschnauzer said...


Jury instructions should be standard across the board. And they should not vary from judge to judge. But they do, radically. And that's the reality of our broken justice system. Most Americans probably have no idea that is the case.

Anonymous said...

I hope this has a good outcome but considering there are 2 Bush appointees on the court, and the rest will probably lean same way. I'd say it looks grim. Also I've seen no media coverage.

Anonymous said...

If SCOTUS reviews this case, it will have to admit that the Fifth Circuit screwed it up royally. I hate to say it, but that's why I don't think SCOTUS will hear the case. Scalia & Co. would rather innocent people sit in prison than admit their judicial colleagues are bozos.

legalschnauzer said...

Anon at 9:22--

You are right about media covergae. It has ranged from dismal to nonexistent. I addressed that in a recent post:

Anonymous said...

In addition to being partisan hacks, I think quite a few justices on the Supreme Court are lazy. They will take the easy way out and deny cert.

Bo said...

How did the defendants ever get acquitted in the Alabama bingo case? It must have been a miracle.

legalschnauzer said...


They got a competent judge, in Myron Thompson. And he gave legit jury instructions. In our current system, that is a miracle.

Pistol Pete said...

I hear all sorts of consumer complaints about folks in the trades--auto mechanics, HVAC guys, etc. I'm starting to think tradesmen, in general, are way more competent than judges.

legalschnauzer said...


I don't think there is any question you are on target. Maybe I'm lucky, but most of the auto and HVAC types I encounter do good work. I'm still looking for a judge who does good work. It's possible I've encountered one or two recently who actually do their jobs well. The "jury is still out," but we will keep you posted.

Anonymous said...

Thanks for running the petition for certiorari review. That's not the kind of thing you see in the mainstream press, but it's an important part of the story. I didn't make my way through the whole thing of course, and I wouldn't recommend it for beach reading. But it's pretty interesting in places. Gives you an idea of how an appellate lawyer's mind works.

Anonymous said...

I cannot believe given your devotion to justice issues that you have no problem with what went on here.

The problem is not that that Minor loaned the judges money. Had he done so, and had such loans been properly reported by the judges, then there is no case.

The problem comes when the loans are hidden, that is, no party before the judge is aware of the conflict, and the judge willfully does not make them aware of it.

Imagine if in your neighbor from hell case you uncovered evidence that Swatek had loaned Joiner 25k, and Joiner had not recorded the loan in his campaign filings. Then you find that neither Joiner nor Swatek disclosed the loans when you had a case involving these parties. Even if Joiner did get the law right by ruling in your neighbor's favor, you would be outraged at such dealings and rightfully so.

If these loans from Minor were above the board, and not a quid pro quo, why all the secrecy? What is the need for middlemen? I imagine there is a reason minor and the judges did not want these loans to get out.

Do you approve of what Minor and the judges did here? Do you think it adds integrity to the justice system?

legalschnauzer said...

Anon at 1:49--

This is a federal criminal case, so the issue is not whether I had a problem with what went on. It's also not whether the loans were properly reported; that would be an issue under state campaign-finance laws.

The real issue is simple: Was a federal crime committed? And the answer is equally simple. No.

Under MS law at the time, the financial favors Minor did for the judges was 100 percent legal; the system ran on such transactions. The law since has been revised.

Do I think that system was good, a solid way to do things? No, I don't, and I've written that before. But again, that's not the issue here.

As for federal crimes, even the Fifth Circuit agrees that the bribery convictions were due to be overturned. That means there was no quid pro quo. It also means the secrecy and middlemen were irrelevant under the law. Why were the transactions conducted in such a fashion? I have no idea, but that is not an element of federal-funds bribery. And as noted, those convictions were overturned anyway.

That leaves honest-services fraud, a subject I've written about extensively. In fact, I got interested in the subject because I witnessed Judge Joiner commit this federal crime over and over again, with the assistance of his pal, Mr. Swatek. In fact, this crime probably is committed every day that court's in session at Shelby County. Judge Reeves, Conwill, Crowson . . . they all do it, and I know from viewing records of their cases.

I won't go into all of the elements of honest-services fraud here, but a key one is this: The public must actually be deprived of its intangible right to honest services. That means Mr. Minor must have received a benefit to which he was not entitled, and the judges must have ruled incorrectly to benefit Mr. Minor.

That did not happen here, not even close. I've studied each of the underlying cases upon which the government built its honest services cases. And in each underlying matter, the state judges ruled properly; Minor's clients prevailed because the facts and the law dictated that they prevail.

In the case before Judge Teel, he did not even make a final ruling in Minor's favor. He stated that he was inclined to deny summary judgment, and there is nothing in the record that shows his inclination was unlawful. In Judge Diaz' case, he didn't even hear the Minor cases. Out of an abundance of caution, he recused himself. The feds still brought the case against him.

Where your Joiner scenario goes wrong is this: Almost every ruling Joiner made was contrary to law, benefiting his buddy, Swatek, and Swatek's client. There was corrupt action by the judge, making unlawful rulings, and a benefit to his friend. That is classic honest-services fraud, even if money did not change hands.

Were the applicable MS laws good ones in the Minor case. No. Did Minor and the judges play by the rules? Yes. Did they commit federal crimes? Not even close.

Anonymous said...

You don't think Minor received a benefit by rigging the system to have cases assigned to judges he had loaned money to? By not asking for jury trials and then filing preemptive motions to get the cases before his judges?

Were you not concerned that Judge Acker was assigned your federal cases in violation of the random procedure supposedly in place?

Minor does not belong in jail for what he is charged for, and, I hope the SC bears you out on that, but lets lot simply ignore what the guy did. He and Scruggs put justice up for sale in Mississippi, and that does no good to other hard working trial lawyers who have ethics.

Lets not make the guy a hero. He bribed two judges. He is not guilty under federal law and should be set free. But he ain't a martyr.

Anonymous said...

So minor "loans" judge on case money and you think there is nothing wrong with that?

legalschnauzer said...

Anon at 4:41--

All of those things might look suspicious to you. They might look suspicious to others. But we don't convict people in this country because something looks suspicious. The prosecution must prove, beyond a reasonable doubt, all of the elements of the charged crime. That did not happen here, not even close.

As for Acker, I wouldn't care how he was assigned to the case if he applied the law correctly. But he has not, and he is a criminal, at least under the pre-Skilling definition of honest-services fraud. In the post-Skilling world, a bribe or kickback would have to be proven, and I have no way of knowing if that took place, without an investigation from the FBI.

As for the Minor case, the record shows that Judges Teel and Whitfield applied the law correctly, and Diaz did not even hear the Minor cases. Under the law, the public was not deprived of its intangible right to honest services.

I've never said in any post that Paul Minor is a "hero." That's not relevant to the matters at hand. But he did not bribe two judges; even the Fifth Circuit agreed on that. Under a correct statement of the law, none of the defendants committed honest-services fraud, either.

I would invite you to learn more about some of the underlying state cases. One of them was Diamond Offshore Management v. Archie Marks. Here is the URL to a post about that case, and I've written in detail about the others, too:

legalschnauzer said...

Anon at 5:15--

As I noted in an earlier comment @4:11, it doesn't matter whether I think there is something "wrong with that." We don't send people to federal prison because you or I think something is "wrong with that." People go to prison because the government proves they committed a specific crime, all of the elements, as charged. Didn't happen here. In fact, the record shows that an actual crime, under federal law, was not even described to the jury.

e.a.f. said...

perhaps juries should start thinking for themselves. Yes, judges give instructions but it is the jury who must make the decision. if citizens want justice than they should start providing it by simply reading the law themselves and then making their decisions. If they do not, they will find their country in a larger mess than it currently is.

legalschnauzer said...


I appreciate your line of thought, but I'm pretty sure U.S. juries are routinely warned to consider only what they hear inside the four walls of the courtroom--and they are not to use any reference materials. Jurors who ignore such warnings are likely to be stricken, and they might be subject to prosecution. (Not sure about that.)

Judges and lawyers strictly control our juries, and that's why the jury process (in my view) is not to be trusted.

Anonymous said...

Agree with 4:41

jeffrey spruill said...

Comedy of errors?

How about the circumlocution analysis by Justice Scalia on how Pat Robertson & Jay Sekulow's ACLJ would win the lawsuit NOW brought in 1986:


VIRGINIA BEACH - Perhaps only Justice Antonin Scalia could get laughs from a subject as dry as constitutional law.

But Scalia, who is nearly as well-known for his cutting wit as for his conservatism, found a responsive audience in the 550 lawyers, judges and Regent University law students he addressed Tuesday. The Supreme Court justice was in town Monday and Tuesday to celebrate the school's 20th anniversary. ``It's a challenge to keep an audience this large awake,'' Scalia said.

Describing himself as an ``originalist,'' Scalia said judges should interpret the Constitution strictly - not according to contemporary standards, but by the intentions of the document's authors. He derided scholars who argue that our interpretation of the Constitution should change with the times.

``The living Constitution,'' he scoffed. ``Oh, Jesus.''

Scalia said few agree with him: ``Originalism is an uphill battle. . . . I may lose that one.''

But Scalia vowed that he will prevail on other judicial issues.

He aims to debunk the ``nefarious practice'' of using legislative history, such as floor arguments and committee reports, when ruling on laws. Judges should read statutes carefully to understand their meaning, rather than sift through transcripts of legislative debates, Scalia said.

Many such debates are meaningless, he said, because lawmakers often talk to an empty chamber. Indeed, Scalia said, some legislators never even read their own committee reports, relying on the help of aides instead.

The congressional record is thick with so many conflicting comments, he said, that judges find evidence to support whatever they want.

Scalia drew the crowd's laughter when he paraphrased a proponent of legislative history: ``It's like going to a cocktail party and peering over the heads of the crowd until you find your friends.'' :


Basing judicial decisions on legislative history, which Scalia dismissed as a ``weird endeavor,'' ``one of the great legal fictions'' and ``Disneyland stuff,'' also causes a host of problems.

``Just because some teen-ager (on the congressional staff) writes section 1B in a committee report, the whole country goes barking off in a new direction.''

Scalia's address drew a standing ovation.

Christian broadcaster Pat Robertson, Regent's chancellor, thanked Scalia for inspiring the school's law students. Robertson also hailed Scalia's judicial rulings.

``Over the last several decades, we've been crying out for a justice who would interpret the law, not try to rewrite it,'' Robertson said. ``He has been a bulwark of conservatism.''

Along with Justice Clarence Thomas, Scalia is regarded as one of the Supreme Court's most conservative members.

Scalia was appointed to the Supreme Court in 1986. Originally from New Jersey, he attended Harvard Law School and has taught law at the University of Virginia.

In introducing Scalia, state Attorney General Mark L. Earley praised the justice for his ``brilliant legal analysis'' and the ``balance and perspective'' he brings to his decisions. Earley said he and Scalia have much in common.

``I feel a bond with him in his love for the Constitution,'' Earley said. ``As the father of six, I feel a closer bond with him, as the father of nine children of his own.''

Buddy said...

Roger, Paul Minor is reporting to a half_way house in New Orleans wed.

jeffrey spruill said...

Mr. Schnauzer:

Judge Acker acts like he's on a first name basis with Lisa Huggings.

Is he asking her if she's ready to accept Summary Judgment?:

I want to ask Lisa: Which solution do you want me to employ?

legalschnauzer said...


Thanks for sharing. I didn't know about that.

legalschnauzer said...


There were three discrimination lawsuits filed against UAB in May 2010. One was from business faculty member Glenn Feldman, one from engineering faculty member Petru Simeonescu, and mine. All three were assigned to Judge Acker.

What are the chances of those three cases being randomly assigned to the same judge, in the same month. The odds, mathematically, have to be astronomical.

There's a reason Judge Acker seems so familiar with Ms. Huggins. She knows he's the judge of choice when UAB really has screwed over an employee in a major way. She also knows these cases weren't randomly assigned, and she knows the clerk's office in the ND of Alabama is riddled with corruption. She probably also knows that certain big downtown law firms help pull off this chicanery.

Does Ms. Huggins report it, as required by the rules of her "profession"? Of course not.

James Greek said...

Harry Anderson makes those judges look like clowns!