Cross Posted atLegal Schnauzer
Our little corner of the blogosphere probably has produced as much coverage about the Don Siegelman case as any other spot on the Web. So our Schnauzer eyes and ears stay tuned for comments--informed and otherwise--about the case.
A common refrain we hear from the anti-Siegelman crowd goes something like this: "Well, the prosecution might have been politically motivated, but a jury found him guilty, so it doesn't really matter."
This, of course, ignores the fact that improper jury instructions were given--plus ample evidence that the judge was corrupt and the jury was tainted. But it misses the larger point. Under the law, it definitely does matter if a prosecution was politically motivated. In fact, such a prosecution desecrates one of our democracy's building blocks--the Fifth Amendment right to equal protection.
The U.S. Supreme Court has held "selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints."U.S. v. Batchelder, 442 U.S. 144 (1979).
The nation's highest court also has found that the Equal Protection Clause prohibits selective enforcement "based upon an unjustifiable standard such as race, religion, or other arbitrary classification."Oyler v. Boles, 368 U.S. 448 (1962).
Clearly, enforcement based on political affiliation falls under the kind of arbitrary classification that is prohibited by the Fifth Amendment. (Siegelman's Motion for a New Trial can be viewed at the end of this post.)
Federal courts generally have accepted the two-pronged test for selective prosecution set out inU.S. v. Berrios, 501 F. 2d 1207 (1974):
To support a defense of selective or discriminatory prosecution, a defendantbears a heavy burden of establishing, at least prima facie, (1) that, while otherssimilarly situated have not generally been proceeded against because of conductof the type forming the basis of the charge against him, he has been singled out forprosecution, and (2) that the government's discriminatory selection of him forprosecution has been invidious or in bad faith, i.e., based upon such impermissibleconsiderations as race, religion, or the desire to prevent his exercise ofconstitutional rights. These two essential elements are sometimes referred to as"intentional and purposeful discrimination.'
Appellate courts historically have been reluctant to override prosecutorial discretion and have established an assumption that a prosecutor has not violated equal protection. To overcome that, a criminal defendant must present "clear evidence to the contrary."United States v. Armstrong, 517 U.S. 456 (1996).
Can Siegelman meet this burden? Consider this passage from his Motion for a New Trial:
There is additional evidence of similarly situated individuals who were not prosecutedby the Republican-controlled Department of Justice:
a. Dr. Swaid N. Swaid donated $3,000 on July 16, 2002 to the gubernatorialcampaign of Governor Riley. . . . In November 2002, Governor Riley waselected to the Office of Governor for the State of Alabama. . . . OnDecember 19, 2002, after the election, Dr. Swaid contributed $10,000 to thegubernatorial campaign of Governor Riley. . . . On January 20, 2003,Governor Riley was sworn into Office. . . . In February of 2003,Governor Riley appointed Dr. Swaid as the Chairman of the Certificate of NeedBoard;