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| Paul Minor |
How entrenched is the rot in our federal judiciary? How grotesque is the corruption and incompetence in U.S. courtrooms?
Those questions perhaps can best be answered by reviewing the Bush-era Paul Minor prosecution in Mississippi. The Supreme Court of the United States (SCOTUS) now is considering a petition to review the Minor case and overturn the convictions of three men who went to federal prison for crimes they did not commit--in fact, for "crimes" that do not exist under federal law.
A decision on whether to review Paul S. Minor v. United States of Americais expected any day from the high court. (The petition for certiorari review can be viewed at the end of this post.) If SCOTUS refuses to review Minor, it will be giving tacit approval to the current dysfunctional state of our federal justice system. The situation is particularly dire in the Fifth Circuit and the Eleventh Circuit, which stretch across the Deep South from Florida to Texas.
The Eleventh Circuit (Florida, Georgia, Alabama) is based in Atlanta, and its three-judge panel of right-wing nominees butchered the case of former Alabama Governor Don Siegelman. The Fifth Circuit (Mississippi, Louisiana, Texas) is based in New Orleans, and it performed a similar hatchet job on the Minor case.
Portions of the certiorari brief in Minor describe the Fifth Circuit's actions in almost comedic terms. In fact, the appellate court's handling of the case would be downright laughable--if the stakes were not so high. Two citizens, former attorney Paul Minor and former state judge John Whitfield, currently reside in federal prisons because of convictions that are not supported by fact or law. A third defendant, former state judge Wes Teel, was released in 2012 after serving his sentence. A fourth defendant, former state judge Oliver Diaz, was forced to endure two trials before being acquitted both times.
Here is the gist of Minor's argument before SCOTUS: The bribery convictions already have been overturned, but the Fifth Circuit upheld honest-services fraud convictions; that ruling was incorrect based on the trial-court record, but it becomes doubly wrong in light of the U.S. Supreme Court's holding in a 2010 case involving former Enron executive Jeffrey Skilling. The high court found in Skilling that the honest-services statute applies only in cases involving bribes and kickbacks. The high court also used Skilling to establish a uniform national standard for honest-services fraud.
And that brings us to one of many oddities in Minor. At the time the case went to trial, the federal circuits were divided on the role alleged state-law violations play in prosecutions under the honest-services statute. In the Fifth Circuit, proof of a state-law violation was an indispensable element of the crime, under a case styled U.S. v. Brumley, 116 F. 3d 728 (5th Cir., 1997). In other circuits state law was irrelevant.
That was a problem because state bribery laws, for example, vary wildly. In fact, they vary wildly just among the three states that make up the Fifth Circuit. At the time of the Minor trial, a defendant could be found guilty of a federal crime, based on a state-law violation in Mississippi, while the same behavior would not allow for conviction next door in Louisiana.
One outcome of Skilling is that SCOTUS cleaned up this mess and established a uniform national standard for honest-services violations, drawing on federal statutes and not state laws.
And that is where comedy enters the picture. When Minor was argued before the Fifth Circuit, post Skilling, even the government conceded the new opinion had radically changed the playing field, meaning the trial-court's jury instructions now were incorrect. But the Fifth Circuit upheld the convictions anyway?
Albert Alschuler, the criminal-justice expert who prepared the pending Minor petition, seems baffled by that one. This is from page 5 of the Minor petition for certiorari:
The Fifth Circuit's error was especially egregious because the government expressly and repeatedly waived any claim that the district court's instructions were correct. Prior to Skilling, Minor sought interlocutory review of a Fifth Circuit decision affirming some of his convictions and reversing others. After he filed his petition but before the government responded, this Court decided Skilling. Citing Skilling, the government then declared, "The [district] court's reliance on state law was incorrect because the honest-services statute 'establish[es] a uniform national standard.'"
The government went on to acknowledge that the instructional error was "plain." But that still was not enough for the Fifth Circuit to overturn clearly wrongful convictions. Alschuler adds this in his brief, perhaps to drive home the absurdity:
The government made the same concession in its brief to the Fifth Circuit. It did so again in oral argument, even after a panel member declared that she was "sort of appalled" by the government's concession.
Yes, a member of the Fifth Circuit Court of Appeals said she was "sort of appalled" because the government admitted a point of law that was beyond dispute. That's what passes for "jurisprudence" in postmodern federal courts.
The jury instructions at the Minor trial were hopelessly incorrect, on multiple grounds, long before Skilling came down. But the latest standard makes them even more wildly off target.
How goofy were the Minor jury instructions? The current petition before SCOTUS shines considerable light on that question. And that's where the comedy of errors continues.
(To be continued)