Friday, March 13, 2015's Kyle Whitmire proves his ignorance about the law surrounding the Don Siegelman prosecution

Kyle Whitmire's Kyle Whitmire, in the midst of a column yesterday urging President Obama to pardon NSA whistleblower Edward Snowden, declared that the prosecution of former Alabama Governor Don Siegelman was "fair."

The premise was that Snowden has been wronged and is deserving of a presidential pardon while Siegelman got what he deserved. We agree with Whitmire about Snowden, but the reporter simply reveals his ignorance about the Siegelman case. He also proves that just because an individual attends a court proceeding, it does not mean he has a clue about what went on.

By the way, this is the same Kyle Whitmire who admitted a few weeks back that he possessed court documents showing Republican political figure John Merrill had engaged in an extramarital affair and chose to hide them away in a drawer. That snafu became a statewide story when we broke the news that Whitmire ignored, publishing documents that exposed Merrill's dubious actions in a Tuscaloosa County divorce case styled Brinyark v. Brinyark.

Whitmire's actions in the Merrill case, plus his statements yesterday about the Siegelman case, add to the mountain of evidence that Alabama's largest news organization has a wildly biased viewpoint that favors the GOP. Did Whitmire feel the need to slam Siegelman in order to get back in good graces with his editors after bringing public embarrassment to I can see how a reasonable person might think that.

How does Whitmire sum up the Siegelman case? From yesterday's column:

Siegelman's sentence was stiff, and the man who delivered it, U.S. District Judge Mark Fuller, has proven himself to be a hypocrite. However, the former Alabama governor is right where he belongs.

Why should we put any stock in that assessment? Well, because our guy Kyle--by God--was at the trial:

The Free Don Siegelman narrative has been repeatedly proven to be fiction. . . .

I was there for Siegelman's trial, and it was fair. The former governor personally secured campaign loans. He all but extorted Richard Scrushy, among others, for money to pay them off. Scrushy obliged, and in return Siegelman reappointed him to the Alabama Certificate of Need Review Board, an appointment that was crucial for HealthSouth.

What good is it to attend a trial when you don't understand the law relevant to the case? Even worse, what kind of reporter are you if you apparently are too lazy to bother looking up the actual law? The answers to those questions place Mr. Whitmire in an unfavorable light--as do his words from Thursday's column. A brief dissection leaves Kyle standing naked in the public square:

* Who has repeatedly proven that the "Free Don Siegelman narrative" is a fiction? Whitmire doesn't say--and that's likely because no knowledgeable reporter or analyst has done it.

* How does Whitmire know the Siegelman trial was fair? He doesn't because he clearly has no understanding of the relevant law. The central charge was federal funds bribery under 18 U.S. Code 666. That statute is so muddled that many public officials have no idea whether they are following the law or not. That's why case law, in the form of McCormick v. United States, 500 U.S. 257 (1991), was central to the case.

Both sides agreed that McCormick was controlling law, and it's central finding is this:

. . . 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.”

This summarizes what commonly is called a "quid pro quo" (something for something) transaction. It is illegal, and if the prosecution proves beyond a reasonable doubt that two parties reached an "explicit" agreement on such a deal, it is grounds for a conviction.

If you want to find the guts of the Siegelman case, it's right there in McCormick. But you notice that Kyle Whitmire in his column never mentions McCormick or any of its provisions. He also never mentions that no "explicit agreement" was proven at trial, and no such instruction was given to the jury. In essence, the unlawful jury instruction provided by Judge Fuller (who is likely to face impeachment proceedings related to an assault on his wife) means that Siegelman and Scrushy were convicted of a "crime" that does not exist.

For anyone who wants to understand how the Siegelman case was, in fact, grossly unfair, we encourage a close reading of our post titled "How the 11th Circuit cheated Don Siegelman: A summary." It spells out five key mistakes that an appellate panel made in failing to overturn the Siegelman convictions.

Most alarming is this: By law, Siegelman and Scrushy could not even stand trial. That's because the alleged misconduct at the heart of the case took place almost one full year outside the five-year statute of limitations (SOL). Here's how we explained the facts and law related to the SOL:

So how did the government get away with bringing this case, much less winning it? It drafted an indictment that was vague, and when Siegelman/Scrushy moved for a bill of particulars that would have required a few specifics, the judge denied it. Defense attorneys raised the limitations defense in a proper manner for a case involving a vague indictment. But the trial court, and the 11th Circuit, wrongfully ruled that they had waived the defense.

It's public record that the alleged transaction took place in summer 1999, and the indictment came in May 2005. That's more than five years, so by law, the government had no case--but Fuller let them bring it, and the 11th Circuit allowed unlawful convictions to stand.

Kyle Whitmire would have us believe that such a wildly corrupt process was "fair"? No one with functioning brain cells should buy that.


Anonymous said... is deeply invested in the fiction that the Siegelman case was correctly decided. It's too late for them to turn back now. They can't admit they were wrong.

Anonymous said...

Kyle seems to practice "trust me" journalism, as in, "I can't explain how the Siegelman trial was 'fair,' but I was there, so you can trust me that it was."

Sorry, Kyle. You work for, and we don't trust you.

Steve said...

If your readers are interested in knowing more about what REALLY happened in the Siegelman case, see a movie trailer that explains a lot of what happened. Here's a link:

legalschnauzer said...

I would encourage anyone who really wants to understand the Siegelman case to read the McCormick opinion to which we link above. The two sides in Siegelman didn't agree on much, but they agreed that McCormick was controlling law. It's two key provisions, as it relates to Siegelman:

(1) 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. (SCOTUS agreed with McCormick's contention.)

(2) The receipt of such contributions is also vulnerable under the Act as having been taken under color of official right, but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. In such situations the official asserts that his official conduct will be controlled by the terms of the promise or undertaking.

Like Siegelman, the McCormick case involved botched jury instructions by the trial court. McCormick only got straightened out when it went all the way to highest court in the land. SCOTUS, unfortunately, has refused to hear the Siegelman case.

The jury instruction in Siegelman should have required (for conviction) proof of a quid pro quo (something for something) agreement or promise, and it had to be explicit. The instruction did not require that, and thus, was unlawful.

That's the case in a nutshell, although a whole lot of other stuff was going on.

Anonymous said...

Mr Schuler I would direct you to documents that are archived with the state of Alabama. In the documents there is a folder of information identifying four men , with two businesses in Alabama that exceed 100 million dollars in assets. The folder's contents outline a comprehensive organized multi-kilo drug importing network that controls multiple member of the judiciary. My understand is that Mr Siegelman was schedule to meet with DEA officers outside the state. that meeting did not happen. A prosecutor and judge who are directly controlled by that network were responsible for his prosecution. He was to quote one " a dead man walking" once that file hit his desk. I would urge you and others to carefully review the public documents that contain affidavits of law enforcement officers who are familiar with this case. They are discoverable. This network is headquartered in Barbour county and one of the men is one of the most successful lawyers in the state. If your serious about asking why what happened to Gov Siegelman really occurred, I suggest you review these documents.

legalschnauzer said...

I would be interested in learning more. You can contact me via private e-mail at