Roger Shuler is an Alabama journalist and 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?
- Roger with Murphy, the Legal Schnauzer
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
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
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
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
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
* 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.
Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which since 2005 existed for the sole purpose of raising the public awareness of the critical need for election reform. Our goal: to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Because the problems with electronic (computerized) voting systems include a lack of (more...)