*The fundamentals of bribery laws--It's undisputed that the controlling law in the Siegelman case was McCormick v. United States, 111 S. Ct. 1807 (1991). The 11th Circuit admits this and even correctly states that McCormick finds that an "explicit agreement" must be present to obtain a bribery conviction. But the 11th Circuit then turns around and claims the Siegelman team cites the need for an "express agreement." The Siegelman team, however, does not make this argument. Essentially, the 11th Circuit puts words in the mouth of the Siegelman team. And that's how the appellate ruling gets it wrong on the basics of bribery law.
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*Jury instructions--This could not be clearer. McCormick requires an "explicit agreement." The trial court's jury instruction did not require an "explicit agreement," and thus was unlawful. But the 11th Circuit let it stand. The trial court's instruction focused on a "specific action." But McCormick makes it clear that bribery is not about any action that the parties might take; it is about an agreement, one that is explicit. The trial court did not follow the law, and the 11th Circuit let the bad jury instruction stand, meaning Siegelman and Scrushy were convicted for a crime that doesn't exist.
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*Hearsay--Key testimony came when one former HealthSouth official said that another (a non-witness) had bragged to him about helping the company secure a spot on a hospital-regulatory board. Normally, this would be inadmissible hearsay. But the judge allowed it under the "coconspirator exception" to hearsay. For the exception to apply, a conspiracy must involve both the declarant and the defendant against whom the statement is offered. That would be Don Siegelman. But there never was any evidence that Siegelman was involved in a conspiracy involving HealthSouth officials. The coconspirator exception was not applicable. The trial judge allowed it anyway, and the 11th Circuit let it stand.
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*Insufficient evidence--At most, evidence showed that Siegelman thought Scrushy expected a spot on a hospital-regulatory board in exchange for his campaign contribution. But the law is clear that evidence of an expectation on the part of one party or another is not enough to support a bribery conviction. There must be evidence of an "explicit agreement" between the two parties. That kind of evidence was not present. But the 11th Circuit let the unlawful convictions stand.
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