The Paul Minor Ruling: More Evidence of Our Crumbling Justice System
My research on the facts and the law in the Schmitz case has not been as detailed as it was in the Siegelman and Minor cases. But I strongly suspect the 11th Circuit's ruling of last Friday is unlawful; it unquestionably is nonsensical. Let's examine some of the nuttiness to be found in the Schmitz ruling:
* The Indictment of an Indictment--The 11th Circuit overturned the federal-funds convictions because the government's indictment on those counts sucked. The dignified justices did not use that exact language, of course. But they might as well have. Here is what they did say about it: "We hold that the allegations of fraud in the federal-funds counts are insufficient because they provide absolutely no factual detail regarding the scheme to defraud the CITY Program." (See page 26 in the ruling below.) "Absolutely no factual detail"? That's pretty much telling the prosecutors, "Your work sucks." Are we to believe that the prosecutors who butchered the indictment on the federal-funds counts absolutely nailed it on the mail-fraud counts, which were upheld? If so, I'm not buying it. And I suspect most sentient beings don't buy it either.
* The Flex-Time Fiasco--Did you know it can be a federal crime to seek a flexible work schedule? It can be in post-modern, Bush/Rove America. The mail-fraud convictions were upheld against Sue Schmitz largely because she sought a flexible work schedule that would allow her to serve in the legislature while fulfilling her work duties--and she used the U.S. mails to accomplish this dastardly scheme. We're not making this up. Here is language straight from the ruling: "To accomplish her fraudulent scheme, the indictment alleges, Schmitz obtained her job through 'illegitimate means' and received authorization to perform her job based on a 'flexible work schedule.'" (See page 24 in ruling.) What does "illegitimate means" mean? The ruling doesn't say, and we don't have a clue. Does the court cite any statutory or case law to support its finding that it's a federal crime to seek a "flexible work schedule" by "illegitimate means" (whatever those are)? Nope.
* Beyond a Reasonable Doubt?--Like many Americans, you probably think you cannot be convicted of a crime unless the prosecution proves its case "beyond a reasonable doubt." You've seen enough episodes of Matlock to know that's the law, right? But that apparently doesn't apply if you are Sue Schmitz, at least at the appellate level. My guess is that the jury was given the "reasonable doubt" instruction at trial. But once the jury has reached its verdict, no matter how wrongheaded it might be, "reasonable doubt" goes out the window. At least that's what the 11th Circuit tells us. Again, this goes to Schmitz' efforts to work out a flexible work schedule, through a letter to one of her supervisors, Dr. Cornell: "A reasonable jury could view the letter to Dr. Cornell requesting a flexible work schedule as a step in the fraudulent plot because it allowed Schmitz to conceal her scheme by making it more difficult for supervisors to determine just how little work she was doing for the Program." Does the prosecution have to prove this beyond a reasonable doubt? Nope, says the 11th Circuit. It just has to get a "reasonable jury"--which might be comprised of complete dunderheads--to believe it. (See pages 36-38 in ruling.) Remind me to never ask for a flexible work schedule.
* A Lesson In Legal Nitpicking--Hold onto your hats for this one. The 11th Circuit found that the district court unlawfully allowed the prosecution to ask Schmitz improper questions on cross-examination. (See pages 44-46 in ruling.) It also found that the prosecution made unlawful comments in closing arguments. (See page 49 in ruling.) These unlawful actions by prosecutors, at a critical stage in the proceedings, surely mean that the Schmitz convictions must be overturned completely, right? Well, not so fast. In an excruciating example of hair-splitting, the 11th Circuit found that the prosecutors committed "error" but not "plain error," which would have allowed the appellate court to make a correction. The justices admit that they have neither 11th Circuit nor U.S. Supreme Court precedent upon which to base their finding, so they are more or less guessing. (See pages 49-50 of ruling.) These are your tax dollars at work, folks.
Schmitz' attorneys could seek an en banc hearing before the entire 11th Circuit. Or they could see how the district court will handle resentencing. It's possible that Schmitz will be sentenced to time served and set free. But that will leave this question hanging: How in the name of Alan Shore was Sue Schmitz convicted and sentenced to serve time in the first place, on charges that would have to improve to be flimsy? How does someone go to federal prison for seeking a flexible work schedule?
Our guess is that the justices on the 11th Circuit bench do not concern themselves with such matters of right and wrong, facts and law. They simply want to tidy up the Bush DOJ messes and ensure that many Americans go on believing the myth that we have a justice system worthy of our trust.
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