When the definitive history of the dismantling of the system of justice during the late twentieth and early twenty-first centuries in the United States is written, the case of former Alabama Governor Don Siegelman will deserve its own chapter. The next episode in this sad saga will play out on Wednesday in a satellite courtroom for the Eleventh Circuit Court of Appeals in Jacksonville, Florida. I will try to be in the courtroom for the oral arguments, but unfortunately, the Eleventh Circuit allows no electronic devices of any type in the courtroom, so I will have to take notes and then prepare a report from the notes.
The immediate question at hand on Wednesday will be arguments in response to the United States Supreme Court’s decision on June 29, 2010 that vacated Siegelman’s conviction and remanded it for review by the Eleventh Circuit in light of the Supreme Court’s decision in Skilling v. United States (pdf).
For background on how we have arrived at this point, the timeline below draws on information assembled by Raw Story and from the statement of facts in the Eleventh Circuit appeal decision from March of 2009 (pdf). I have pieced together the timeline going forward from the appeal.
November, 1998 Don Siegelman elected Governor of Alabama.
July 19, 1999 Check for $500,000 from Integrated Health Services (on behalf of UBS Bank) arranged by Richard Scrushy written and eventually credited toward expenses incurred in Alabama lottery campaign, presumably in return for Scrushy being appointed to Alabama Certificate of Need Board. This board determines which health facilities are needed in the state and Scrushy’s HealthSouth is one of the largest heath care providers in Alabama. Note that Scrushy had already served on this board under previous Republican governors, to whom he had made donations.
July 26, 1999 Scrushy appointed to CON Board, along with seven other board members.
May 23, 2000 Additional $250,000 check directly from HealthSouth deposited against lottery campaign expenses.
November, 2002 Bob Riley narrowly defeats Don Siegelman in Alabama Gubernatorial race amid questions about changed vote tallies.
October 26, 2005 Federal grand jury indicts Siegelman on 32 counts of bribery, conspiracy, mail fraud and obstruction of justice.
December 12, 2005 Second, superseding indictment for racketeering conspiracy, racketeering, honest services wire fraud, obstruction of justice and extortion.
June 29, 2006 Siegelman convicted on six counts including bribery, conspiracy, honest services mail fraud and obstruction of justice. He is acquitted on twenty-two other counts.
From the Eleventh Circuit Court opinion document, here is the description of the issues Siegelman raised during appeal:
On appeal, Siegelman and Scrushy together allege nine errors in the trial proceedings below. With respect to the bribery, conspiracy and honest services mail fraud counts against them, defendants assert that the court’s instructions erroneously failed to require the jury to find a quid pro quo in order to convict; that, in any event, there was insufficient evidence of any quid pro quo; that the bribery counts were barred by the statute of limitations; and that the trial court erroneously admitted hearsay used to convict them on these counts. Defendants also allege that there was juror misconduct requiring the grant of a new trial and that the procedures used to select their grand and petit juries violated the Jury Selection and Services Act of 1968 and the Constitution. Siegelman contends that there was insufficient evidence that he obstructed justice and that the district court abused its discretion in sentencing him by upwardly departing from the Sentencing Guidelines.
March 6, 2009 Eleventh Circuit Court of Appeals upholds four counts on which Siegelman was convicted and reverses two.
June 29, 2010 US Supreme Court order (via TPM Muckraker):
The petitions for writs of certiorari are granted. The judgment is vacated, and the cases are remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Skilling v. United States, 561 U.S. ___ (2010).
August 31, 2010 Siegelman attorneys file brief with Eleventh Circuit requesting reversal on all counts. Roger Shuler at Legal Schnauzer describes the brief (and provides it in an embedded document), quoting attorney Sam Heldman:
Most of the case against Governor Siegelman is based on the law that the Supreme Court addressed in Skilling, the so-called “honest services” law. The Supreme Court held in Skilling that the reach of that law is much narrower than prosecutors had long believed. It covers only true bribery and kickback cases. Governor Siegelman’s case is not a bribery case. It is purely a case about lawful contributions to the lottery campaign, not a case about bribery. Governor Siegelman did not get a penny from those campaign contributions for himself. Under Skilling, there simply was no crime.
This leaves only two charges against Governor Siegelman, under laws other than the “honest services” statute. But Skilling requires dismissal of those charges as well. In charging Governor Siegelman under those other laws, the prosecutors in this case have tried to expand those laws beyond the words that Congress wrote. The Supreme Court in Skilling emphasized that in our system, criminal laws must be carefully written to give notice in advance of what is prohibited, and that prosecutors cannot stretch the laws to cover the prosecutors’ chosen targets. Here again, Governor Siegelman simply did not break any laws.
Which brings us to the oral arguments scheduled for Wednesday, addressing Siegelman’s request to reverse the remaining four counts based on the Supreme Court’s narrowing of the honest services law in the Skilling decision.
The dry recitation of events in the timeline above does not touch on the deceit inherent in how Siegelman came to be charged in the first place. For a good description of some of the underhandedness of the George W. Bush Justice Department under the influence of Karl Rove, the 60 Minutes piece from 2008 gives a good overview:
What will happen next is anyone’s guess, but I am struck by the irony that Siegelman stands a good chance to be acquitted based on a decision rendered by the most conservative branch of the Supreme Court in absolving Enron executive Jeffrey Skilling of several of his convictions. Here is how Scott Horton describes what might be in store in response to the Supreme Court’s decision in Skilling and its remand of the Siegelman case to the Eleventh Circuit:
This decision does not necessarily mark the end of Siegelman’s ordeal. The Supreme Court split on the constitutionality of the honest-services fraud statute under which Siegelman was convicted, on evidence subsequently revealed to have been improperly coerced. Three justices felt the entire statute was unconstitutional and should fall. The remaining six attempted to salvage something from it but also expressed concern about the way the Justice Department was interpreting and applying the statute, and insisted that it be considerably narrowed. With this decision, the ball is back in the Justice Department’s court. It should take full measure of the Skilling decision and abandon the case against Siegelman, which is probably the single most abusive use of the honest-services fraud statute yet—surely more abusive than that of the Skilling case itself. But we’re dealing with a Justice Department that never admits a lapse in judgment, much less abuse of prosecutorial discretion—both of which were in ready supply in this highest profile political prosecution in recent American history. So it will be up to the Eleventh Circuit to apply the Skilling ruling, and then perhaps the case will make a return trip to the High Court if it reinstates any aspect of the Siegelman conviction.
Update: The panel who will hear arguments is Gerald Tjoflat, J.L. Edmondson and James C. Hill, the same panel who heard the previous Siegelman appeal. They are described as experienced and respected, but were appointed by Republicans and are conservative. Note, for example, that Tjoflat was one of the very few judges arguing to keep Terry Schiavo alive.