Thursday, August 22, 2019

Kevin Newsom, a Trump-nominated judge who used to be at Birmingham's Bradley Arant, casts a vote that chips away at "beyond a reasonable doubt" standard

Kevin Newsom
While many Americans wonder if Donald Trump will attempt to buy Greenland or officially be named "King of the Jews," Trump-appointed federal judges are chopping away at the fundamentals of our democracy. Do Americans notice?

One such judge is Kevin Newsom, who now sits on the U.S. Eleventh Circuit Court of Appeals in Atlanta (covering Alabama, Georgia, and Florida) and used to work at Bradley Arant in Birmingham. An acolyte of former Trump attorney general and U.S. Senator Jeff Sessions and U.S. Circuit Judge Bill "Bad Puppy" Pryor -- both closeted gays, by the way -- Newsom served as Alabama's solicitor general when Pryor was AG.

Before that, Newsom worked at the D.C. law firm Covington Burling, which produced horrible Obama AG Eric Holder and brags about its ties to right-wing luminaries, such as Karl Rove. In what should be a surprise to no one, Newsom is a member of the Federalist Society, which has hand-picked many of Trump's judicial nominees.

What do these nominees stand for? It certainly is not the U.S. Constitution. Earlier this year, Newsom cast the deciding vote in a ruling that chips away at a bedrock principle of American law. People for the American Way (PFAW) addresses the case as part of  a blog series titled "Confirmed Judges, Confirmed Fears. From the post about Newsom's ruling, titled "Trump judge erodes the 'reasonable doubt' requirement for a guilty verdict." Writes analyst Paul Gordon:

In January 2019, Trump judge Kevin Newsom of the Eleventh Circuit authored a 2-1 opinion in U.S. v. Munksgard upholding a felony criminal conviction even though the prosecution had failed to prove a key element of the crime beyond a reasonable doubt. Newsom cast the deciding vote to allow this constitutional violation.

Because tyrannical governments misuse the criminal law to imprison people for illegitimate reasons, the Constitution requires prosecutors to prove a defendant’s guilt beyond a reasonable doubt. That requirement applies to every element of the crime. So when the United States charged Matthew Munksgard with making false statements in 2013 and 2014 in order to get a loan from an FDIC-insured bank, the prosecution had to prove that the bank was, in fact, FDIC-insured during that time frame.

But all they did was show that the bank had been FDIC-insured in 1990 (when it was chartered) and in 2016 (at the time of the trial). For Judge Newsom, that was enough for a jury to conclude beyond a reasonable doubt that it had been FDIC-insured in 2013-2014, because there is (according to him) a “universal presumption” that a bank is so ensured. 
This is straight from the Munksgard opinion, which Newsom wrote:

Matthew Munksgard admits to knowingly making false statements in order to obtain bank loans—indeed, four times over. Even so, he contends, the government failed to show beyond a reasonable doubt, as it had to, that the institution he swindled was FDIC-insured. This case presents the (irritatingly familiar) question whether the government presented sufficient evidence to prove that pesky jurisdictional prerequisite. The proof of FDIC insurance here—as in other cases in which we have rapped the government’s knuckles—was hardly overwhelming. And given the ease with which insurance coverage could have been demonstrated—certificate, contract, cancelled check, etc.—inexplicably so. Having said that, “overwhelming” isn’t the standard, and when we view the evidence in the light most favorable to the government, as we must, see United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010), we conclude—albeit reluctantly—that the proof was adequate to demonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.

Even Gerald Bard Tjoflat, the hideously crooked geezer from the Richard Nixon era, seemed taken aback by Newsom's "reasoning." Writes Gordon:

But as Republican-nominated Judge Gerald Tjoflat pointed out in dissent, knowing the bank’s insurance status in 1990 and in 2016 does not tell us much about 2013 or 2014, because that status is up for renewal four times each year: It could have changed as many as eight times between the alleged crime and the trial. That is hardly proving its status “beyond a reasonable doubt.” In addition, the jury was instructed to only consider evidence presented in the trial, so they could not base their ruling on some “universal presumption.”

Judge Tjoflat correctly stated that:

"If the majority’s statement of the law were correct, the government would be relieved of its duty to prove every element of the crime beyond a reasonable doubt. That would violate the Constitution."

Nevertheless, Judge Newsom was willing to erode this bedrock of our liberty.

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