SOURCE: OpEdNews

ebruary 1, 2010

Roger Shuler on Recent Supreme Court Decision

By Joan Brunwasser

Roger Shuler is an Alabama journalist and The Legal Schnauzer blogger. Welcome back to OpEdNews. The big news of late is the recent Supreme Court decision striking down limits on corporate campaign contributions. Everyone feels strongly about it. How about you, Roger?

My primary interest is how it possibly reflects on the apparent political prosecutions of the George W. Bush Justice Department. In the Paul Minor case in Mississippi, Minor's attorneys have already raised the Citizens United v. FEC ruling in their motion for reconsideration with the U.S. Fifth Circuit Court of Appeals.All sidesseem to agree that a quid pro quo--something for something deal--remains illegal. But Minor's attorneys argue that there was no quid pro quo in his case, and the jury instruction did not require one. Therefore, based on Citizens United, the prosecution and conviction that Minor faced was aviolation of his First Amendment rights.

The argument seems to be: If the charges against Minor are true, and he was making financial favors to judges in hopes of influencing their decisions, that's exactly what he should have been doing, according to the U.S. Supreme Court's ruling in Citizens United. In other words, Minor got convicted for alleged behavior that the Supreme Court now encourages.

That surely sounds nutty to many reasonable people. But that reflects the current state of our politicized justice system. I would argue that Paul Minor was prosecuted for political reasons, and the Supreme Court made its Citizens United ruling for political reasons--and the result is a justice system that no one can trust. This quaint notion of cases being decided based on the facts and the law seems to be a thing of the past.

Well, this is certainly convoluted. Forgive me if I'm still confused. The big question is, where does this leave Paul Minor and (former Alabama Governor) Don Siegelman, for that matter?

It is convoluted--and confusing. The Minor convictions should be overturned, regardless of the Citizens United ruling. That's sort of a side issue, albeit an interesting one.

The Fifth Circuit already has overturned the bribery convictions, but it upheld the fraud convictions--and that is another example of our federal appellate courts being corrupt, incompetent, or both. The key in the Minor case is this: It's clear that the underlying cases were correctly decided by then state judges Wes Teel and John Whitfield, whobecame Minor's codefendants. Minor won the state cases not because of any financialfavors, which were legal under Mississippi law, but because the facts and the law dictated that his side win the cases. Minor received no unlawful benefit, so there can be no fraud.

Minor, Teel, and Whitfield were convicted because trial judge Henry Wingate, a Reagan appointee, gave instructions that said the jury could find defendants guilty even if it was determined that the underlying cases had been correctly decided. That, however, is simply not the law. One of many sad lessons of the Minor case is this: Judges can pull jury instructions out of thin air. And that's what Wingate did. If you read the relevant law in the Minor case and you read Wingate's jury instructions, they are virtually the opposite of one another. It's scary stuff to think that people can be convicted of crimes that don't exist under the law--but do exist in a judge's twisted mind.

Much the same thing happened in the Siegelman case. Judge Mark Fuller, a G.W. Bush appointee, also gave incorrect jury instructions that did not require a quid pro quo finding. Fuller was a little more subtle about it than Wingate was. His jury instructions are somewhat near the same ballpark as the actual law--but they still were not a correct statement of the law. And because of that, the Siegelman convictions should be overturned.

As for Citizens United, I think the same point that is being made in the Minor case could be made in the Siegelman case. HealthSouth CEO Richard Scrushy was convicted for contributing to a Siegelman campaign with the hopes of influencing the governor's decisions. We now know from the Supreme Court that such behavior is not only OK, it's actually encouraged. As you know, Siegelman's attorneys already are seeking review with the U.S. Supreme Court. It will be interesting to see if they supplement their filings with an argument similar to the one being made in the Minor case.

I don't know about you, but this makes me feel very insecure. If you can't depend on the law to stand behind you, and are actually fearful that the law can be used, or misused against you, what kind of system is this? And what can we do about putting justice back in the DOJ, where it belongs?
You raise very good questions. And that's why Obama's "look forward, not backward" approach on justice issues is so wrongheaded. In fact, I think it is already hurting him politically. The Massachusetts vote probably happened for a lot of reasons. But a little more than a year ago, the No. 1 question on Obama's Web site was about investigation of possible Bush-era crimes. That was a huge concern on the public's mind, and Obama has ignored it. He's paying a price at the ballot box. People who have followed the Bush DOJ closely, as you and I have, know something smelly was going on. But even people who haven't followed the story closely, I think, sense that our justice system is broken--not only at the Supreme Court and federal level, but in many cases, at the state, county and municipal levels.

The fundamental problem, in my view, is that the law is a self-regulating profession. And until that changes, we will continue to have a "justice" system that is far too easily corrupted. And the Supreme Court just made matters worse by making it open season for corporations to buy justice--which they've pretty much been doing already, particularly in states like Alabama and Mississippi, where Karl Rove and the U.S. Chamber of Commerce have shaped our courts to their liking.

So much attention is focused on health-care reform, and that is important. But our health-care system works well for a lot of people--those who have good insurance coverage. I'm not sure our justice works for anyone--other than lawyers and judges, who get quite wealthy off of it. It certainly does not serve the public. I would submit that we need major legal reform every bit as much as we need health-care reform. But you almost never hear the issue raised.

I quite agree with you about the need for reform, on many fronts. Any ideas about how to bring about necessary legal reform?

When legal reform comes up, it's almost always in the form of "tort reform." Liberals do notwant limits on jury awards, and conservatives do want caps. But that does not go to the basic honesty of our justice system. And that is the biggest problem we have in our justice system, in my view. It's the reason we have bogus political prosecutions like the ones involving Don Siegelman in Alabama and Paul Minor in Mississippi.

I think at least two areas need to be examined closely:

* Regular citizens, nonlawyers, need to become more involved in the justice system. One reason no one addresses corruption in our justice system is that an honest examination would reflect very badly on the legal profession. And the political process, in Congress and in state houses, is dominated by lawyers. I believe we need citizen panels of some type to provide oversight, to make sure that the actual law is being applied in our courts--not the whims of corrupt judges. On the civil side, many lawyers cheat their own clients because they know they aren't going to be held accountable--particularly if they are members of big law firms. State bars might get tough with solo practitioners and lawyers from small firms. But the big guys often avoid scrutiny. And if a citizen brings a lawsuit for legal malpractice, it will be overseen by another lawyer--the judge. At every step, the law is a self-regulating profession, with no one from outside to help keep the lawyers in check. Citizens need to step into the fray, to help clean things up.

* We need to address the issue of immunity for judges and prosecutors. The Siegelman and Minor prosecutions never would have happened if the judges and prosecutors involved knew they might face real consequences for their actions. Judicial and prosecutorial immunity, however, protect them from lawsuits. And the chances of criminal investigation, they know, are slim. Certainly, judges and prosecutors must have the freedom to make discretionary decisions. But they now are protected even when they knowingly violate the law--and that has to change.

Well, it would be wonderful if your call for a thorough investigation into the way our justice system works gathers some steam. It was a pleasure, as always, Roger. Thanks for talking with me.

CER set up a lending library to achieve the widespread distribution of the DVD Invisible Ballots: A temptation for electronic vote fraud. Within eighteen months, the project had distributed over 3200 copies across the country and beyond. CER now concentrates on group showings, OpEd pieces, articles, reviews, interviews, discussion sessions, networking, conferences, anything that promotes awareness of this critical problem. Joan has been Election Integrity Editor for OpEdNews since December, 2005. Her articles also appear at RepublicMedia.TV and Scoop.co.nz.