U.S. judge Myron Thompson agrees with us that jury instructions for bribery, as in the case of ex Alabama governor Don Siegelman, are an unwieldy mess

U.S. Judge Myron Thompson

Former federal prosecutor Stephen Feaga, in a recent op-ed piece for the Montgomery Advertiser, tried to convince the public that jury instructions in the Don Siegelman case were correct. We have shown that Feaga's claim is wildly off target, and a judge who has served on the federal bench in Alabama for 35 years agrees with us.

Myron Thompson, nominated by President Jimmy Carter in 1980, wrote in a 2012 opinion that jury instructions in federal bribery cases long have been filled with murky, inexact, confusing language. Thompson, writing in an opinion for the Alabama bingo trial (U.S. v. Milton E. McGregor, et al), said the problem goes beyond the case that sent Siegelman and codefendant Richard Scrushy to prison. Thompson said federal appellate courts and the U.S. Supreme Court have for years done a poor job of defining the line that marks legal and illegal transactions between public officials and campaign donors.

Thompson offered the jury instructions he crafted for the bingo case, which resulted in zero convictions, as an example of what should be consistently used across the country. Thompson even called on the nation's highest court to clarify the law, perhaps by using his suggested instructions.

It's now roughly three years later, and we've seen no clarity from the U.S. Supreme Court. Meanwhile, Siegelman remains in federal prison for "crimes" that might exist under the flawed jury instructions of former federal judge Mark Fuller--but do not exist under the actual law.

Why is this issue profoundly important? Because we have a political system that relies on campaign contributions--and First Amendment law that guarantees donors the right to support the candidate of their choosing. This is how we explained it in a July 2012 post about Thompson's opinion:

In fact, public records show that the federal bingo trial resulted in no convictions mainly because Thompson presented clear, detailed jury instructions that dovetail with actual law.

It's not, of course, that public officials accused of bribery, extortion, and the like always should go free. But the standards for convictions in the context of campaign contributions, Thompson writes, must be strict so as not to conflict with First Amendment guarantees. Courts, however, have repeatedly used poorly defined terms that make it impossible for public officials, campaign donors, and the public to understand the line between lawful conduct and a federal crime.

How would Thompson help clear up a messy situation? From our 2012 post:

In his opinion, Thompson cites the jury instruction he used in the Alabama bingo trial and shows how it fits with, and illuminates, the case law that has come to govern such issues. Here is the key component of the jury instruction Thompson says should be used consistently in public-corruption cases. It focuses on the definition of a "quid pro quo" (this for that), which must be present under the law for actions to be criminal:

"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. By this phrase, I mean that a generalized expectation of some future favorable action is not sufficient for a quid pro quo agreement; rather, the agreement must be one that the campaign contribution will be given in exchange for the official agreeing to take or forgo some specific action in order for the agreement to be criminal. A close-in-time relationship between the donation and the act is not enough to establish an illegal agreement."

Fuller's jury instruction in the Siegelman case fell woefully short of the kind of clarity Thompson seeks. Here is how we have described it:

Fuller's jury instruction did not require an explicit agreement as outlined in McCormick, much less one that had to be stated orally or in writing. Fuller let the jury believe that an agreement could be implied or inferred. The Eleventh Circuit inexplicably allowed the unlawful jury instruction to stand--and the U.S. Supreme Court refused to review the matter.

Appellate courts simply have not done their jobs on the Siegelman case, causing a massive misuse of public funds that should draw Congressional review.

How badly have the nation's highest courts botched this issue, which can (and has) sent innocent individuals to prison?

Consider the Eleventh Circuit: Its own rules (Rule 35, Federal Rules of Civil Procedure) state that the purpose of en banc review is "to secure or maintain uniformity of the court's decisions" or to address panel decisions that are in "direct conflict with precedent of the Supreme Court or of this circuit." The three-judge panel's ruling in Siegelman clearly conflicts with McCormick, it conflicts with the circuit's own findings in U.S. v. Davis, 30 F.3d 108 (11th Cir., 1994), and it destroys any semblance of uniformity on the pertinent law. But the full Eleventh Circuit declined review.

Consider the nation's highest court: U.S. Supreme Court Rule 10 states that certiorari review is properly considered when "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter." The Eleventh Circuit's finding in Siegelman conflicts with McCormick, with Davis, and with similar rulings in other circuits. So why did the Supreme Court punt on Siegelman? To be sure, certiorari review is at the court's discretion; it's not a matter of right. But perhaps we no longer need a Supreme Court if it is not going to hear critically important cases that so clearly meet its own criteria.

Thompson nails the key issue with this paragraph from his bingo opinion:

It is often true that “unexamined assumptions have a way of becoming, by force of usage, unsound law." McCormick, 500 U.S. at 280 (Scalia, J., concurring). In the public-corruption context, courts have been particularly lax in the use of certain words–-explicit, express, agreement, promise, and quid pro quo-–that should have clear legal meanings. Imprecise diction has caused considerable confusion over the scope of federal corruption laws as applied to campaign contributions. Uncertainty in this area of law breeds corruption and chills legitimate political speech.

To what kind of "corruption" is Thompson referring? It's not absolutely clear, but I believe he's saying that confusing language in the law encourages prosecutors to bring dubious charges and judges to give jury instructions that can lead to bogus convictions. No other reference to corruption makes sense in Thompson's statement. I believe he is pointing squarely at prosecutorial and judicial corruption--and perhaps dishonest political figures (can we say "Karl Rove"?) who might push like-minded prosecutors to use flawed law to take out enemies on the other side of the political fence.

Steve Feaga wants us to believe everything was fine and dandy with the jury instructions in the Siegelman case. Informed Americans should not buy it. And a federal judge with 35 years of experience provides a detailed explanation of why the law, in its current state, is so bad--and so dangerous to our political process.

Myron Thompson Opinion by Roger Shuler