Lawyers Rake In Almost $28 million in Fees On Scrushy Case

The Village Voice recently ran an article knocking ABC's Nightline for producing a "puff piece" on former HealthSouth CEO Richard Scrushy, the codefendant in the prosecution of former Alabama Governor Don Siegelman.

Birmingham attorney Doug Jones joined in the fun, helping the Voice trash Scrushy and his family, while harrumphing about the evils of fraud.

That's ironic because, according to court records, Doug Jones can count almost 28 million reasons to be thankful for Richard Scrushy. Court records also show that Jones has a mixed record on fighting fraud--becoming a self-righteous crusader in some cases, while conveniently ignoring other cases.

Speaking of convenient, The Village Voice failed to mention that Jones once led Siegelman's defense team while also suing Scrushy, Siegelman's codefendant. The Voice also failed to mention that Jones has worked on the Scrushy lawsuit with Homewood attorney Rob Riley, the son of Alabama Republican Governor Bob Riley and Siegelman's opponent in 2002.

Can we say conflict of interest?

What about all of those reasons that Jones should be thankful for Richard Scrushy? Well, a federal judge recently awarded almost $28 million in attorney fees and expenses in a lawsuit against a number of people (including Scrushy) and entities connected to Birmingham-based HealthSouth.

If my math is correct, the total payout for lawyers in the case is $27,937,317. And the case is a long way from being over. There's still more dough that Jones, Riley & Co. can grab.

Court documents indicate that some 50 to 100 plaintiff's lawyers are involved in the massive case, so the money will be spread around. But language in court documents also indicates that the majority of the bread probably will go to the two lead firms in the case--Coughlin Stoia Geller Rudman & Robbins, of San Diego, and Laboton Sucharow, of New York. The lead local lawyers, called co-liaison counsel, are Jones and Riley--and it appears that they, too, stand to make a bundle.

We have written several posts questioning apparent conflicts of interests that Jones and Riley had from their involvement in both the Siegelman/Scrushy criminal case and the Scrushy/HealthSouth civil case. For good measure, we have written that my unlawful termination at the University of Alabama at Birmingham (UAB) coincided with my first post about Riley's questionable involvement in the HealthSouth lawsuit. We also noted that Wyatt Haskell, founding partner of the Haskell Slaughter firm where Jones now works, has extremely close ties to UAB.

Well, it looks like Jones and Riley had almost 28 million reasons for ignoring their myriad conflicts--and perhaps striking back at a blogger who reported on those conflicts.

What about Doug Jones' mixed record on fraud? Well, we've seen that he was quite the crusader when he stood to make a bunch of cash on the HealthSouth case.

But what about other cases? Jones has been made aware that a company co-owned by his legal buddy, Rob Riley, has been charged in a federal whistleblower case with committing health-care fraud. That involves a company called Performance Group LLC, in which Riley is partners with several physicians/staff members from UAB.

Is Doug Jones concerned when Rob Riley and individuals from UAB apparently are involved in fraud? Doesn't look like it. In fact, he seems to embrace them.

And what about Paul Bryant Jr., a member of the University of Alabama Board of Trustees and CEO of the Greene Group Inc.? One of Bryant's company's, Alabama Reassurance, was implicated in a massive fraud scheme that resulted in a 15-year prison sentence for a Pennsylvania lawyer named Allen W. Stewart.

We have reported on Paul Bryant Jr.'s close ties to fraud and included this information:

Bryant and his company, Alabama Reassurance, came through the episode virtually unscathed. Sources tell Legal Schnauzer that a full-bore investigation of Alabama Re was to commence once the Stewart conviction was secured. In fact, Caryl Privett--then U.S. attorney for the Northern District of Alabama and now a Jefferson County Circuit judge--reportedly had promised investigators that they could go after Alabama Re once the Stewart trial was over.

By then, however, Privett was out of office, and someone in the U.S. Department of Justice called off the Alabama Re investigation. One can only wonder if Bryant's company has forsaken the fraudulent business practices that were revealed in the Stewart trial. One can also wonder who cut Bryant and his company a break--and why.

Sources tell Legal Schnauzer that the investigation into Alabama Reassurance was called off after Privett's successor took office. And who was her successor? None other than Doug Jones.

Isn't that interesting? Did Doug Jones help cover up fraud connected to Paul Bryant Jr. while riding a white charger in the Richard Scrushy case?

We'll continue to research that issue. Meanwhile Village Voice portrays Doug Jones as an authoritative voice to speak out against fraud. Maybe the Voice needs to check into the backgrounds of its "authorities" more closely.

Misconduct Topples Another Bush-Era Prosecution

Did the U.S. Justice Department do anything right during the disastrous reign of George W. Bush? More and more, that's looking like a legitimate question.

In recent months, numerous Bush-era cases have crumbled under the weight of prosecutorial misconduct. The latest is a case out of California involving executives for the chip maker Broadcom.

U.S. District Judge Cormac Carney dismissed the case for what he called "shameful" prosecutorial misconduct and lack of evidence. One can only imagine what Carney would think if he reviewed the conduct of prosecutors in the Don Siegelman (Alabama) and Paul Minor (Mississippi) cases.

Could the Broadcom case have implications in Alabama? The case was initiated by the Securities and Exchange Commission, and the SEC has been busy in Alabama--particularly in the cases against former HealthSouth CEO Richard Scrushy and former Birmingham Mayor Larry Langford.

Given the behavior of SEC lawyers in California, it's reasonable to ask, "Were the Scrushy and Langford cases handled in a lawful manner?"

Here's another question to ponder: Scrushy is involved in both state and federal lawsuits. Was information obtained by the SEC, possibly through illegal means, used in those civil matters?

How bad was the prosecutorial misconduct in the Broadcom case? Consider this passage from the San Jose Mercury News:

Carney said evidence in the securities case shows prosecutors tried to influence the testimony of three key witnesses, improperly contacted witnesses' attorneys and leaked information about grand jury proceedings to the media.

"I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense and the cumulative effect of that misconduct has distorted the truth-finding process," Carney said. "To submit this case to the jury would make a mockery ... of the constitutional right to due process and a fair trial."

Let's repeat that last sentence: To submit this case to the jury would make a mockery . . . of the constitutional right to due process and a fair trial.

That's a federal judge speaking, one who actually seems to care about the U.S. Constitution.

So why have the Siegelman and Minor cases, which featured prosecutorial misconduct that probably was worse than that in Broadcom, not been reviewed by a Justice Department that now is led by Obama appointee Eric Holder?

There is no logical answer to that question, and Holder's inaction is a disgrace.

What have we learned from Broadcom and similar cases, particularly those in Alaska? If the judge in a case points a finger at prosecutorial misconduct, then justice can be served. But if the judge is part of the misconduct, as was the case in Siegelman and Minor, no one will do anything about it.

Is Eric Holder going to sit on his hands forever, while the reputation of the U.S. Department of Justice sinks into oblivion?

The wonders of Kitty Kats and Chinese Food

Two of our great passions here at Legal Schnauzer are pets and food.

As the title of our blog suggests, we are huge fans of dogs in general and miniature schnauzers in particular. And our home currently is enlivened by the presence of our two Tonkinese cats, the brother/sister combo of Baxter and Chloe.

We like all kinds of kitty kats--yellow ones, black ones, white ones, black and white ones--but if we could get another cat at the moment, we might go for a gray tabby.

In fact, a gray tabby at the Alabama Animal Adoption Society recently caught our eye. His name is Wilson, and we think he's an incredibly handsome feller--plus, we love his name; think it's a hoot and seems to fit him perfectly. You can check out Wilson's picture here.

We think Wilson would make a great little brother for Baxter. Our big girl, Chloe, is gorgeous and sweet-natured, but she's not much of a playmate for her brother. It seems Baxter could use another guy to rumble with.

Wilson possibly already has found a good home, and we hope he has. With various legal and financial stresses at the moment, we don't really need to be adopting another pet. And with both of us having been cheated out of our jobs, I'm not sure we would even qualify for adoption right now.

In a perfect world, we would someday like to get a little brother for Baxter, another miniature schnauzer, and some type of terrier mixed breed. Our world is far from perfect at the moment, but maybe dreaming about little Wilson helps us, as Jesse Jackson would say, "keep hope alive."

By the way, anyone interested in adopting a pet really should check out the Alabama Animal Adoption Society, which is in Homewood. Here are the cats that are currently available. And you can check out available dogs here.

As for food, we are into all kinds. But Chinese is a major favorite, particularly the spicy stuff--Mongolian beef, Kung Pao shrimp, schezuan beef, sweet and sour chicken. Ummm . . . I'm having a Homer Simpson moment (Donuts . . .).

Anyway, what got us to thinking about gray tabbies and Chinese food? Well, we saw this little gem from icanhascheezburger.com and had an LOL moment. If you are like us, you can use all of the LOL moments you can get.



see more Lolcats and funny pictures

Speaking of food, here's another LOL cats gem, with a touch of the Christmas season. Enjoy.


see more Lolcats and funny pictures

The Paul Minor Ruling: More Evidence of Our Crumbling Justice System

Americans seem to be preoccupied these days with possible health-care reform, and that unquestionably is an important issue. But has anyone noticed that our justice system is crumbling around us?

Want evidence? Consider the recent ruling by the U.S. Fifth Circuit Court of Appeals in the Paul Minor case out of Mississippi.

The court correctly overturned the bribery convictions against the three defendants--even though it used some judicial sleight of hand in doing so. But it upheld all other convictions--for honest-services mail fraud, mail and wire fraud, racketeering, and conspiracy--and ordered a resentencing.

Not only was the court blatantly wrong in upholding any of the convictions, it did not even bother to explain itself. Why? Because there is no law, or facts, to support any of the convictions. But the Fifth Circuit, in an apparent effort to provide cover for corrupt trial judge Henry Wingate, upheld the convictions anyway--without making a legitimate effort to explain itself on any of the alleged crimes.

The opinion, authored by Reagan appointee William Lockhart Garwood, is laughably bad. (See opinion at the end of this post.) Paul Minor, once a highly successful trial lawyer on Mississippi's Gulf Coast, and codefendants Wes Teel and John Whitfield (former state judges) might go free if the U.S. Supreme Court declares the current honest-services fraud law unconstitutional. But the Fifth Circuit certainly did not do Minor & Co. any favors. Even worse, the appellate judges cheated a public that pays them to do their jobs.

One of the reasons we have appellate courts is so they can review lower-court findings, determine if they were correct based on the facts and the law, and explain their findings to set precedents for future cases. The Fifth Circuit does none of that in the Minor case.

Why did the Fifth Circuit determine that the trial court was correct in finding the defendants guilty of honest-services mail fraud? We don't know; the Fifth Circuit ruling doesn't say.

Why were the convictions for mail and wire fraud correct? The Fifth Circuit doesn't say.

Why was the racketeering convictions under the federal RICO law correct? The Fifth Circuit doesn't say.

How can the conspiracy convictions stand? The Fifth Circuit doesn't say.

The fundamental job of an appellate court is to decide issues before it--and to explain them. The Fifth Circuit, on the Minor ruling, fails across the board.

Heck, the Fifth Circuit even acted in a goofy fashion when it overturned the bribery convictions. Those convictions should have been overturned on multiple grounds--most importantly, that Judge Wingate gave unlawful jury instructions on those counts.

But the Fifth Circuit doesn't want to go there. So it found that Teel and Whitfield were not agents of the Mississippi Administrative Office of Courts (AOC), meaning the federal-funds bribery law did not apply in the case.

And get this: The defendants did not even bring up that issue on appeal. The appellate court came up with that on its own--probably so it would not have to explain how badly Wingate butchered the bribery charges.

Here is what should have happened, under the law, on the Minor appeal:

* All convictions against the three defendants should have been overturned;

* All three defendants should have been set free ASAP;

* The appellate court should have explained in detail how Judge Henry Wingate corruptly handled the case--and how former U.S. Attorney Dunn Lampton brought a bribery case against individuals where the federal law did not even apply.

If this had been done, the public--if it was paying the least bit of attention--might have become outraged and demanded an investigation--that should have concluded with impeachment and/or imprisonment for Wingate and Lampton. Instead, the Fifth Circuit justices are covering for their federal buddies--and Minor, Teel, and Whitfield still face the possibility of years in prison.

We are talking here about three men who are unquestionably not guilty. Even the Fifth Circuit, in all of its lunacy, admitted they were not guilty and never should have been been tried on the most important charge--bribery.

If the Don Siegelman case does not convince you that our federal courts are a shameful mess, the Paul Minor case certainly should.

Health-care reform is important, but people's lives are being ruined by a hopelessly broken justice system.

Will Americans ever notice? Will they ever rise up to do anything about it?

Paul Minor--Fifth Circuit Ruling by Roger Shuler

It's Hard to Defend a Corrupt Alabama Judge

In the roughly 2 1/2 years since I started this blog, I've written about a number of corrupt judges--in Alabama and beyond. And it's interesting that I've received relatively few attempts, via comments or e-mail, to defend bad judges.

For example, I've exposed Shelby County judges J. Michael Joiner and G. Dan Reeves and Jefferson County judge Allwin Horn--all Republicans--and I've had no serious efforts to dispute what I've written. I suspect that's because many folks around the Birmingham legal community know these judges are corrupt.

Jefferson County Judge Robert Vance Jr. is a different story. I've received a lot of correspondence, much of it seemingly from lawyers, sticking up for Vance. You can read some of it in the comments section at this post.

Why has the reaction been different regarding Vance? One reason, I suspect, is that Vance is part of Alabama's "legal royalty." His father, Robert Vance Sr., was a federal judge who was killed by a mail bomb in 1989. His wife, Joyce White Vance, is the current U.S. attorney for the Northern District of Alabama, appointed by President Barack Obama.

Another reason, I suspect, is that Vance is a Democrat, originally appointed to office by former Governor Don Siegelman (of all people). My blog has a generally progressive tone, and I've been a consistent voice stating that Siegelman was wrongfully prosecuted and convicted by the Bush Justice Department. Because of that, my criticism of Vance has probably been a surprise to some readers.

Finally, it's possible that Vance usually is a good judge. That's in stark contrast to Joiner, Reeves, and Horn. In my conversations with a number of Birmingham-area lawyers, the consensus seems to be that the "Three Amigos" are held in low regard.

Vance, on the other hand, seems to be held in generally high regard. And that might be why defenders have tried to come to his rescue on this blog. The sad truth, unfortunately, is that Vance acted corruptly in my case--and I find it hard to believe mine was the only case where he's ever ruled contrary to law. In my book, that makes him a corrupt judge, regardless of his pedigree or party affiliation.

Maybe Vance only rules unlawfully when a member of the legal community needs to be protected. But that is no excuse. Lawyers who commit malpractice should be held accountable. Rogue doctors certainly don't seem to get away with much in our justice system. In fact, many good doctors--ones who simply have bad outcomes--probably go through the legal wringer.

So how do my correspondents generally try to defend Vance? The main argument seems to be this: He might have made a mistake in my case, but that doesn't mean he's corrupt. In other words, they seem to be saying, Vance is incompetent, but not corrupt--so go easy on him.

Sorry, but that argument doesn't wash with me. The applicable law in my case was so simple that no honest judge could have gotten it wrong. It would be like a mathematician getting 2 + 2 incorrect. It could only happen if he was impaired or intentionally screwing up.

Plus, Vance's actions show that he clearly did not make a mistake. After Vance unlawfully granted the defense's Motion to Dismiss, I filed a Motion to Alter, Amend, or Vacate a Judgment under Rule 59 (e) of the Alabama Rules of Civil Procedure (ARCP). That essentially gave Vance a second crack at it, another chance to get the ruling correct under the law. But he blew it again, and I see no way that can happen unless a judge is intentionally cheating.

Actually, Vance probably still could get the ruling correct--if he was interested in seeing that justice is served. Under Rule 60 ARCP, Relief From Judgement or Order, parties appear to have considerable leeway to seek correction of erroneous orders or judgments. Based on my research, the rule is not clear on this, but it also appears that the court, on its own motion, can correct such errors.

If Vance really is an honest judge, who simply made a mistake, it appears he has the authority--on his own--to go back and correct that mistake. But he hasn't done it.

What does that tell us? Here's my guess: My lawsuit was against Jesse P. Evans III and Michael B. Odom, who have been with two major Birmingham law firms. They were with Adams & Reese/Lange Simpson when I hired them, and they are with Haskell Slaughter now. Robert Vance Jr., as part of Birmingham's legal establishment, probably feels it is necessary to protect rogue lawyers, no matter how badly they violated their duty to a client.

In the process, Vance cheats the public, the very taxpayers who pay his salary. He also violates the oath he took to uphold the law.

The law gives Robert Vance Jr. a vehicle by which he could correct his "mistake." But he hasn't done it yet. And I see no sign that he ever will.

Does Siegelman Case Mean Prominent GOP Governors Are Headed for Prison?

Are some of our best-known Republican governors on the verge of being prosecuted and sent to federal prison? If you believe the verdict in the case of Don Siegelman, former Democratic governor of Alabama, the answer would have to be yes--especially when you check out some fairly recent headlines.

Siegelman was convicted of bribery for accepting a campaign contribution and then appointing the donor to a hospital-regulatory board. Never mind that such behavior has not been considered a crime; in fact, our system of government is driven largely by such actions.

But if the Siegelman verdict is to be taken seriously--and it has been upheld by the U.S. 11th Circuit Court of Appeals in Atlanta--some Republican governors could be in deep doo-doo.

Consider these headlines, first one from California regarding "The Governator":

Donors to Governor Get Posts of Prestige

San Diego Union Tribune
Aug 28, 2006
SACRAMENTO, CA--When Gov. Arnold Schwarzenegger was swept into office by the recall election in 2003, he promised to end politics as usual, where "money goes in and favors go out."

But Schwarzenegger has carried on the political tradition of providing favors -- in the form of coveted state appointments -- to generous campaign donors.

At least 13 of Schwarzenegger's appointees, their spouses and their companies have contributed more than $1.4 million to his campaigns, according to campaign disclosure forms and a review by the Foundation for Taxpayer and Consumer Rights.

Schwarzenegger has hired some donors for key positions in government, but has also made several appointments that bestow prestige rather than pay. He has named five major donors or their spouses to the unpaid Del Mar Fair Board, one of the most sought-after appointments in state government.

Then we have a headline from Texas, about Governor Rick Perry:

Perry’s Top Donors Get Posts

Houston Chronicle
May 24, 2009
AUSTIN--Gov. Rick Perry has accepted nearly $5 million in political campaign donations from people he appointed to state boards and commissions, including some in plum jobs that set policy for state universities, parks and roads, records show.

Nearly half the appointee donations came from people serving as higher education regents, including more than $840,000 from those at the University of Texas System, according to a Houston Chronicle review of campaign-finance records.

Political patronage is nothing new for Texas governors in both political parties. The contributions are a legal and common practice, though it has been fodder for critics over the years.

Let's don't forget one of our favorite Republican governors--Sarah Palin, of Alaska:

Gov Palin appoints donors to key posts

Los Angeles Times
October 24, 2008

Excerpt:

More than 100 appointments to state posts--nearly 1 in 4--went to campaign contributors or their relatives, sometimes without apparent regard to qualifications.

Palin filled 16 state offices with appointees from families that donated $2,000 to $5,600 and were among her top political patrons.

Several of Palin's leading campaign donors received state-subsidized industrial development loans of up to $3.6 million for business ventures of questionable public value.

Palin picked a donor to replace the public safety commissioner she fired. But the new top cop had to resign days later under an ethics cloud. And Palin drew a formal ethics complaint still pending against her and several aides for allegedly helping another donor and fundraiser land a state job.

Most new governors install friends and supporters in state jobs. But Alaska historians say some of Palin's appointees were less qualified than those of her Republican and Democratic predecessors.

Mike Huckabee, of Arkansas, gets in on the act:

Huck's gift-givers ended up in state posts

Politco
December 14, 2007
Mike Huckabee accepted more than 90 gifts from 21 Arkansans he appointed to state posts during his decade as governor, a Politico analysis of state public records found.

Since he set his sights on the White House, those supporters, their families and their companies have kept on giving. They contributed nearly $161,000 to a pre-presidential campaign account and Huckabee's official campaign committee since late last year, according to state and federal campaign finance records.

And finally, we have one of the GOP's stars of the future--Bobby Jindal, of Louisiana:

Jindal's List

New Orleans Times Picayune
March 23, 2009
Since taking office last year, Gov. Bobby Jindal has appointed more than 200 of his top contributors to influential boards and commissions, proving that 'ethics' has a limit--and a price.

It was almost a threat, but he delivered it with a down-home country smile, the kind that hints of mischief and promises all kinds of hell. Sen. Ben Nevers, with a twang that's distinctly Washington Parish, told members of the Senate and Government Affairs Committee he was going to have his staff produce a list of political appointees and how much money each had contributed to the elected officials responsible for their appointments.

Don Siegelman has spent nine months in federal prison, and he might be headed back unless the U.S. Supreme Court agrees to hear his case and overturns the verdict. Siegelman's donor, former HealthSouth CEO Richard Scrushy, remains in federal prison.

And yet, numerous other governors have appointed contributors to major posts--under both the Bush and Obama justice departments--and everything seems to be fine.

The truth is that such transactions--minus an explicit quid pro quo (something-for-something deal)--are not illegal. Evidence showed that a quid pro quo was not present in the Siegelman case, and a federal judge did not require that one be present.

In other words, Siegelman and Scrushy were convicted of a "crime" for an act that is standard operating procedure in American politics. The headlines above prove that such acts happen all the time.

Is something wrong with this picture of American justice?

Once You Encounter a Corrupt Judge, You Never Forget Him

When you have witnessed the handiwork of a corrupt judge, how does it affect your life?

In a broad sense, it undermines your confidence in our democracy. In a "micro" sense, it affects you in numerous ways. For example, I don't read the newspaper the way I used to.

Two of the biggest stories in Alabama at the moment are the civil trial of former HealthSouth CEO Richard Scrushy and the controversy over electronic bingo. Both stories involve judges that I know, from firsthand experience, are corrupt.

Take the Scrushy story. Jefferson County Circuit Judge Allwin Horn is handling that matter, and in a bench trial, entered a judgment of $2.87 billion against the HealthSouth founder. Since then, the local press has been filled with stories about efforts by plaintiffs' lawyers to track down Scrushy's assets. (Never mind that Scrushy almost certainly doesn't have anything close to $2.87 billion.)

How do I read those stories? Before my own legal experiences, I would have read them the way many citizens probably read them--with an assumption that Scrushy is a scoundrel and deserves to get nailed for all he's worth. But now, I'm not so sure about that.

I'm not sure that Scrushy was "the CEO of the fraud" at HealthSouth, as Horn found. But I do know, from up-close-and-personal experience, that Horn himself is a scoundrel. Horn handled a legal-malpractice claim that I filed, and I saw him repeatedly rule contrary to clear law, effectively letting a member of the legal community (Birmingham attorney Richard Poff) off the hook.

In short, I saw Horn butcher a case that involved a relatively small amount of money. Do I have confidence that he is honestly handling the Scrushy case, which involves huge sums of money? The answer is a resounding no.

Or take the electronic-bingo story. A prominent case in Walker County is being heard by Jefferson County Circuit Judge Robert Vance. In late October, Vance ruled that electronic bingo is not legal in Walker County and ordered bingo halls to shut down immediately. Last week, ruling on a motion to alter that judgment, Vance stood by his original decision.

How did I read those stories? Ten years ago, I probably wouldn't have read them because, while I support efforts to legalize and regulate gambling in Alabama, I generally don't participate in bingo or other games of chance. It's just not my thing. But after years of going through legal hell, I read any story about Judge Robert Vance very closely.

Like Horn, Vance "heard" a legal-malpractice case I had filed, this one against Birmingham attorneys Jesse P. Evans III and Michael B. Odom. And like Horn, Vance repeatedly ruled contrary to clear law, protecting two members of the legal community and one of its major law firms.

Vance did not just screw up my case. By intentionally ruling in an unlawful manner and using the U.S. mails in the process, he almost certainly committed a federal crime--honest-services mail fraud. Horn probably committed the same crime in the Poff case.

Imagine my reaction when I read the following quote from Vance's ruling denying a request to keep bingo halls operating while an appeal is pending:

"This court cannot condone and permit continued criminal activity for any period of time. To do so would essentially mean an abdication of this Court's primary responsibility, undertaken when the undersigned took his oath of office, to uphold and defend the laws of this State."

Isn't that interesting? Vance failed to uphold and defend the laws of Alabama in the legal-malpractice case I had before him--and he didn't seem to have the least bit of problem with that. But he takes his oath with the utmost seriousness in the bingo case.

How does it affect you when you have witnessed judicial corruption? For me, it changes the way I read every story about the courts. I always have this question: Who is the real wrongdoer here--the individual on trial or the judge?

Paul Minor Appellate Ruling Presents Good News and Bad News

The bribery convictions in the case of Mississippi attorney Paul Minor and two codefendants have been overturned by the U.S. Fifth Circuit Court of Appeals. That is good news because bribery was the primary charge in the case.

But all other convictions in the case, including those for honest-services fraud, stand. And that is bad news because, under the law, all of those convictions should have been overturned, too. Worse, by upholding these bogus convictions, the Fifth Circuit signals that it is trying to attach some legitimacy to the Minor prosecution, essentially providing cover for the corrupt activities of the federal judge and prosecutors in the case.

Scott Horton, legal-affairs contributor for Harper's magazine, writes that the U.S. Supreme Court appears set to rule that the honest-services fraud statute is unconstitutional. If that happens, all of the convictions in the Minor case would be overturned and the defendants--Minor and former state judges Wes Teel and John Whitfield--set free.

But it should not come down to that.

U.S. District Judge Henry Wingate butchered the jury instructions and the evidentiary rulings throughout the Minor case, and the Fifth Circuit lets all of that stand. Why would the appellate court do that? Here's our best guess: Federal appeals judges have a vested interest in perpetuating the myth that trial judges and prosecutors are relatively competent--and honest. The appellate court does not want the public to know that Wingate and U.S. Attorney Dunn Lampton handled the Minor case in a grotesquely corrupt fashion.

So what does the appellate court do? It throws the Minor defendants a bone on one issue, while papering over the unlawful actions of Wingate and Lampton on other issues. As Horton writes, the end result might be freedom for Minor, Teel, and Whitfield--and that certainly is a good thing. But unless some governmental body conducts a thorough investigation, the public will not know the truth--that the defendants never should have been prosecuted or convicted in the first place, and it only happened because of a corrupt federal judge and prosecutor.

How can we say that with certainty? The Minor case, on the surface, appears complex. The appellate ruling covers 35 pages and touches on all kinds of tangential issues. But the case boils down to a relatively simple question.

The government alleged that Teel and Whitfield handled two cases involving Minor's firm--Archie Marks and Peoples Bank--in a corrupt fashion. They did so, according to the government, because they had received financial favors from Minor, which are legal under Mississippi law.

So the key question in the Minor case was this: Did Teel and Whitfield actually rule unlawfully, and corruptly, in the two underlying cases? As we have shown in multiple posts, they did not. Teel and Whitfield ruled correctly based on the law and facts before them, so Paul Minor and his firm received no unlawful benefit in those cases.

How on earth did a jury convict three men for a crime they clearly did not commit? It happened because Judge Henry Wingate presented the jury with instructions that did not come close to matching the actual law.

In an earlier post, we cited this critical portion of Wingate's jury instruction on honest-services fraud:

"You may find specific criminal intent even though you may find that the rulings were legal and correct, that the official conduct would have been done anyway, that the official conduct sought to be influenced was lawful and required by law, and that the official conduct was desirable or beneficial to the public welfare."

There's only one problem with that jury instruction: It isn't correct under the law, not even close. Henry Wingate simply pulled it out of his . . . well, you get the idea.

What does the real law say? In order to have a conviction for honest-services fraud, the public must actually be deprived of an official's honest services. The key case on this issue is U.S. v. Sawyer, 85 F. 3d 713 (1996). Sawyer also was cited in U.S. v. Walker, 490 F. 3d 1282 (2007). Consider this from Sawyer:

The McNeive and Rabbitt cases illustrate that although a public official might engage in reprehensible misconduct related to an official position, the conviction of that official for honest-services fraud cannot stand where the conduct does not actually deprive the public of its right to her honest services, and it is not shown to intend that result.

Teel and Whitfield ruled correctly in the cases involving Minor's firm, so the public was not deprived of anything--and there clearly was no intent to deprive the public of anything. Their convictions on honest-services fraud cannot stand.

A similar principle was at work in the Don Siegelman case in Alabama. Siegelman took a campaign contribution from former HealthSouth CEO Richard Scrushy and then appointed Scrushy to a hospital-regulatory board. But Scrushy already had served on the board under three previous governors and clearly was qualified to perform his duties. Therefore, the public was not deprived of Siegelman's honest services.

That's just one of many connections between the Minor and Siegelman cases--and they extend into the appellate realm.

In the Minor case, the Fifth Circuit overturned the bribery convictions but upheld honest-services fraud convictions. In the Siegelman case, the 11th Circuit did just the opposite--it upheld the bribery conviction against Siegelman but overturned the honest-services fraud conviction.

What does this tell us? We can only conclude that there is a concerted effort in the federal judiciary to hide the true skulduggery that took place in these two cases.

Defendants in the Minor and Siegelman cases might eventually be set free. But that will not answer this critical question: How on earth did they wind up in prison in the first place?

Appellate judges clearly do not want folks like you and me to know the answer to that question. I don't pretend to be an expert on separation of powers, but my educated guess is that it's time for Congress to step into the fray.

Congress controls the purse strings of the federal judiciary, and those strings need to be tightened considerably until a serious investigation is conducted and the truth comes out on political prosecutions during the George W. Bush era.

What will represent truly good news on the Paul Minor case--and the Siegelman case, for that matter? That will come when certain federal judges and prosecutors are impeached and/or marched off to federal prison--where they belong.

Is It Too Easy for America to Go to War?

In the aftermath of President Barack Obama's announcement last week that he plans to send 30,000 more U.S. troops to Afghanistan, most Americans probably did not think about an alarming fact: Fewer than 1 percent of us are being called to fight in our current wars, in Afghanistan and Iraq.

New York Times columnist Bob Herbert has thought about it, and he calls it "obscene." Herbert goes on to produce one of the most important and brutally honest op-ed pieces I've read in a long time.

Herbert relates a story that says a lot about how many Americans have come to think about war:

I spoke recently with a student at Columbia who was enthusiastic about the escalation of U.S. forces in Afghanistan. He argued that a full-blown counterinsurgency effort, which would likely take many years and cost many lives, was the only way to truly win the war.

He was a very bright young man: thoughtful and eager and polite. I asked him if he had any plans to join the military and help make this grand mission a success. He said no.

It's easy to be enthusiastic about a war that you know you'll never have to take part in. In fact, most Americans know they won't have to sacrifice at all, and Herbert says that is dangerous for any society:

The air is filled with obsessive self-satisfied rhetoric about supporting the troops, giving them everything they need and not letting them down. But that rhetoric is as hollow as a jazzman’s drum because the overwhelming majority of Americans have no desire at all to share in the sacrifices that the service members and their families are making. Most Americans do not want to serve in the wars, do not want to give up their precious time to do volunteer work that would aid the nation’s warriors and their families, do not even want to fork over the taxes that are needed to pay for the wars.

To say that this is a national disgrace is to wallow in the shallowest understatement. The nation will always give lip-service to support for the troops, but for the most part Americans do not really care about the men and women we so blithely ship off to war, and the families they leave behind.

Finally, Herbert gets to the ultimate truth: The George W. Bush administration never would have started either of these wars if it had known that a broad cross-section of Americans would have to sacrifice for it:

The reason it is so easy for the U.S. to declare wars, and to continue fighting year after year after year, is because so few Americans feel the actual pain of those wars. We’ve been fighting in Iraq and Afghanistan longer than we fought in World Wars I and II combined. If voters had to choose right now between instituting a draft or exiting Afghanistan and Iraq, the troops would be out of those two countries in a heartbeat.

I don’t think our current way of waging war, which is pretty easy-breezy for most citizens, is what the architects of America had in mind. Here’s George Washington’s view, for example: “It must be laid down as a primary position and the basis of our system, that every citizen who enjoys the protection of a free government owes not only a proportion of his property, but even his personal service to the defense of it.”

What we are doing is indefensible and will ultimately exact a fearful price, and there will be absolutely no way for the U.S. to avoid paying it.

Bob Riley's Facade of Ethics is Starting to Crumble

For roughly seven years, Alabama Republican Governor Bob Riley has portrayed himself as a champion of ethical government. Despite mounds of evidence to the contrary, many Alabamians seemed to buy Riley's story.

One reason is that Alabama's compliant, right-wing press has failed to seriously examine Riley's record on ethics. One reporter, Bob Lowry of The Huntsville Times, has been an exception, taking several critical looks at the Riley administration. With a former member of Riley's cabinet now calling for a criminal investigation, other reporters are forced to pay attention.

Bill Johnson, a GOP candidate for governor in 2010, has asked Alabama Attorney General Troy King to investigate possible ethics and criminal violations by the Riley administration. Reports The Montgomery Advertiser:

Chris Bence, chief of staff for King, confirmed that the office received a complaint from Johnson, and he said that it would follow its standard procedure. That means Johnson's complaint will be assigned to one of King's investigators and a prosecutor for review.

"A preliminary determination of whether there is reasonable cause to believe that a crime may have been committed will be made," he said. "If a review does result in the determination that a crime was committed, then it triggers the next step, which is a formal investigation."

Johnson also has asked Montgomery County District Attorney Ellen Brooks to investigate the Riley administration. Johnson's complaint focuses largely on three areas:

* Riley's alleged receipt of campaign contributions from Mississippi Indian casino owners;

* Riley's actions that have benefited the law firm that employs his son-in-law; and

* Riley's actions that have benefited his son's law firm.

The alleged funding from Mississippi gaming interests, which were represented by Jack Abramoff, might be the most serious matter. Reports The Montgomery newspaper:

Johnson who served as Riley's grassroots campaign coordinator said Riley received the money for his 2002 gubernatorial campaign, Riley has said he did not.

"The people of Alabama deserve to know whether or not their governor has violated the law," said Johnson, who formerly served as the head of the Alabama Department of Economic and Community Affairs.

The allegations apparently have upset at least one Riley supporter:

Johnson has received harassing mail since he resigned from Riley's Cabinet in late June, and he said he asked for the investigation because that mail has since turned threatening. Last month, Johnson received an envelope with a picture that depicted him with someone holding a gun to his head with the phrase "Say goodbye to Bill" underneath.