Paul Minor’s lawyers have filed a brief on appeal (the appeal itself was filed in September of last year. The appeal brief was filed June 18th). It is a gargantuan document–121 pages followed by an appendix on jury instructions. The enormous PDF is here. Be warned! It’s enormous!
Recall that the charge is that Minor had done loan-guarantee arrangements for the two judges, and that they had given him favorable results in major cases before them.
The big theme of the brief is that Minor was given a first trial in which he was acquitted on some charges and the jury hung on others, that in the second trial the judge made very critical unexplained changes in rulings, and there was a conviction. Among the unexplained changes in rulings:
- a decision to refuse to instruct the jury that, to prove bribery, there had to be proof of a quid pro quo– some sort of exchange for the payment. This exact issue is a major one in the Siegelman case.
- a decision to refuse to allow proof that Minor had done these sorts of guarantees before in other contexts, proof that had been allowed in the first trial.
- a decision to refuse to allow proof (also allowed in the first trial) that the result in the two cases was a reasonable and proper result, and that the Minor firm had done hard work for the result and had major expertise in these areas.
The brief then goes on the attack the sentence and concludes by asking that on remand the case be reassigned to another judge. The last issue is a sustained attack on Judge Wingate based not on the record in this case but on media accounts, particularly from Scott Horton at Harper’s. There are even cites to the LegalSchnauzer blog, the Raw Story web page, and a Jackson Free Press article.
There is a clear account of the facts– the loan guarantees and the cases before Teel and Whitfield and several clear arguments. I want a chance to see the other briefs (not yet filed) before I draw much in the way of conclusions.
Bloggers after Wingate, eh? I can just see it now.
Here’s Anita’s story.
I guess Paul Minor decided to take a different tack than Wes Teel.
Zowie, no words minced, or not many, huh? So, OWIL, is that Wes Teel’s blog that someone else is writing now? The latest post — al Qaeda Mouse — is a stitch.
Is this the same group of bloggers who were saying the juries should be trusted with there decisions about civil suits and criminal trials? Can’t have it both ways if one of yours is caught with his hand in the cookie jar.
Attys practicing before a Judge that is hearing that atty’s cases + secret loans to that Judge from the atty = very bad thing for MS legal world.
There is no place for it. No justifiable cause for it. Judges should have recused self on own motion. Atty should have notified the other side of the conflict. If the practice is not outright illegal, it should be. Period.
No amount of sugar coating, spin, or legal manuevering can adequately polish this turd.
MSBroker, very good observation. Don’t ya just love it when people talk out of both sides of their mouths?
Yes, trust the juries —- let the system work —UNLESS, of course, it works against YOU. At that point, the system is obviously corrupt and changes must be made. LOL.
AFOTL: The maneuvering that matters on the appeal– the evidence and jury instruction issues– seem strong issues to me, particularly the later one. If a jury in a bribery case isn’t required to find a quid pro quo, then every ambassador who isn’t career State dept had better lawyer up. (I still can’t get my mind about exactly what an illegal gratuity is).
This is not to say the loans weren’t a quid pro quo. The jury had to be instructed to find one, in my opinion.
The evidence rulings were similarly dubious. However, the description of what was proffered suggests to me that the evidence itself was kind of weak, so the court may blow off the rulings as harmless.
Of course, you have to factor in that the 5th Cir. is a really tough audience for a criminal appellant.
The reason I hesitated to post all of this is I want to read the government brief before doing a full post of my impressions. However, the Minor brief does seem record-based and quotes enough material from the record to make me think it is not blowing smoke.
Further to AFOTL: I agree with your turd analysis. My reaction in hearing about the Minor facts was that if this isn’t illegal it ought to be. On the other hand, if the jury doesn’t find a quid pro quo, it isn’t bribery, it’s something else.
msbroker:
I don’t see anything inconsistent in what I’ve posted on this blog. I don’t think I’ve expressed an opinion about Minor, in part because I haven’t looked hard enough at the case.
I’ve now read his appeal brief beginning to end, and stand by my summary as accurate. I don’t think I suggested how it will come out in the post, although as noted above in comments, I think he’s got some good issues.
AFOTL: I’m going to call bull on that one, and ask what blogger you’re referring to talking out of both sides of his mouth.
msbroker and afotl, yes, please tell us EXACTLY what you’re talking about. I think you’ve been into the Silly Smoke already today. Tsk.
the article about the Mississippi Supreme Court overturning 88% of cases on appeal to the benefit of the defendant. Several of the comments suggested juries should be trusted with their verdicts…. nothing personal directed at your NMC. I might have used the wrong term as bloggers and should have said commentors?
msbroker, probably you meant commentors
NMC…. if it is wrong what transpired between the judges and Minor… what should happen to him? I guess if you know the law well enough you can get away with doing wrong….. especially if the terminology used in gaining a conviction was erroneous.
NMC and/or LOTUS would you be willing to go to trial in a case knowing the plaintive attorney is holding a loan to finance the judges election campaign? Also, that loan is up for renewal and perhaps the outcome of this case might be play a role in the terms of the renewal loan?
IMO all lawyers should be shouting from the roof tops to get people like this out of the system. The Bar had the opportunity to police their own and have failed to do so……. which leaves the courts as the only way to accomplish this task.
Is there a way for defendants who lost at trial under these circumstances to sue in civil court? Maybe punitive damages could be used to prevent this from happening again?
Lotus, as for silly weed I admit years ago I used to partake. However, that doesn’t really have anything to do with this discussion does it?
1) I think that serious bar and judicial performance commission discipline should be brought to bear against lawyers who do loan guaranties and continue (without disclosure) to bring cases before the loan-ee judge.
2) If they are campaign contributions then are they reported on the required reports for that? I don’t think so. That smells bad, too.
3) I think that there is a good chance that #1 may describe a case of judicial bribery but believe strongly that the jury should be required to find a quid pro quo. That is, I think there is a really strong chance the instructions were error in the Minor case.
3) I think the argument that such loan guaranties are a campaign contribution are a stretch, but in non judicial races that has apparently been not even sneezed at (e.g. Amy Tuck). In either case I really wonder about whether the loan guaranties are illegal in ways other than bribery.
4) I have not read the record in the case so I don’t know anything about the proof other than having read a couple of briefs and newspaper accounts, which makes me somewhat cautious. I do not know the ins and outs of what actually happened. I have had people on both sides (adamantly contending guilt, adamantly contending innocence) fuss at me about this case, and that makes me even more cautious. I don’ t know what is in the record. I think I will have a sense of that when I read all of the appeal briefs, which I fully intend to do. I’ll post more definitively then.
5) There is a political smell to some parts of this case, particularly the non-indictment of Dickie Scruggs and the charges against Diaz. Diaz did not sit on the cases involving Minor. Period. How can he be accused of bribery when he recused himself? The Diaz loans come closer to being what Minor says the Teel and Whitfield loans were– a guaranty of a loan for a friend. The reason I say that is Diaz really didn’t hear cases involving the guarantying lawyer.
I’d be curious of the reactions of others.
As a now law abiding citizen (no more wacky week) I really don’t want to have to split hairs to know that the legal system is working as it should. If someone is trying to tilt the system in their favor and it looks like it should be illegal or tampering they should be punished.
NMC #2 you are a good lawyer… you really didn’t answer the question asked. If you knew you opposing counsel had loaned the judge a good bit of money and the loan was up for renewal would you want to do battle in the judges court under those circumstances?
#5 I don’t know enough about the Diaz case to have an informed decision, but it does sound like he didn’t have a dog in the hunt. He did take a lot of money from Trial Lawyers but that in itself is not a crime… just smells.
Msbroker @14, USF&G has filed a lawsuit against Minor to get back the money it paid to settle a case that was pending before Judge Teel. A motion for relief from judgment was filed in at least one Whitfield case that I’m aware of.
CG…. can they get punitive damages?
I believe USF&G has asked for punitives. The motion for relief from judgment did not involve punitives; it simply asked that the prior judgment be lifted and that the plaintiff be ordered to give the money back.
MSBroker said:
>>
As a now law abiding citizen (no more wacky week) I really don’t want to have to split hairs to know that the legal system is working as it should. If someone is trying to tilt the system in their favor and it looks like it should be illegal or tampering they should be punished.
<<
There’s nothing in the comment I made that constitutes “splitting hairs.” My comment pretty straightforwardly described what I think is going on with the Minor case and where I think it is and the gaps in what I know.
I even said what I thought stinks.
You can’t answer a question like “was it against the law” abstracted from the actual details of the facts and the legal standards. You can’t answer “does the appeal have merit” without talking about the legal standards. It’s not splitting hairs to do that.
Something can be “really bad” and be legal. Something can be “unethical in a way justifying bar discipline” and not violate the criminal code. To talk about what should happen in an actual live case involves talking in a concrete way about the standards and the facts. It’s not splitting hairs to do it that way, it’s what lawyers do and courts do (and what they ought to do.
All that said, I really think I answered your questions in a detailed and straightforward way. The “would you like it as a defense lawyer question” I think you can tell the answer from the comment. I think it should be disclosed or the bar should come down people. If it was disclosed, I’d file a motion for recusal.
msbroker, I hope you don’t expect me to improve on NMC’s answer. If so, you’re S.O.L.
Go on back to your “silly smoke” Louts, I was really looking for a yes or no answer about would you like to defend…… glad I didn’t have to pay for the answer by the word…. typical (but great) lawyer!
(high-fives msbroker
)
Lotus at 3, there are guest bloggers/commenters there and he provides links, but at least when he was healthy, there were words that Wes Teel claimed as his own on that particular blog. I do not remember the day Teel reported to the Fed Pen, so I think some of that writing must have been prior to his surrender date. Does anyone know if he appealed the conviction? Something tells me that I am sure that he did, but unless he is also asking for a different judge if it gets turned around, he is asking for trouble! Some of the prior posts are just hysterical.
Sorry to delay my answers and forthcoming apology, but I’ve been a tad busy with real legal work today.
I meant “commenters” in general, not “bloggers” meaning Lotus and NMC. Sorry for the confusion. As to the commenters I intended to refer to, if the the shoe fits, wear it. Ha.
I will say this in general about Minor. Even if his case is reversed on appeal on some evidentiary technicality (which I don’t think it will be), many of us, including me, take exception to anyone trying to paint this man as some sort of “victim” of overzealous prosecution, etc. Hogwash. Minor’s proven activities indicate that he is at least an unethical, corrupt POS that has no business practicing law in the state of MS. He deserves everything he has received to date, IMO. He is lucky that public flogging is not still legal as a form of punishment.
AFOTL, Minor may deserve a lot, but so do plenty of other people who aren’t in jail & neveer will be.
There is something very bad-smelling about the same judge’s switching rulings on the jury instructions between the trials. I don’t know if Judge Wingate issued an opinion explaining the change or not.
I’ll toss a similar question out to the one above from msbroker: would YOU want to be a criminal defendant who got a hung jury on your first case, and then the judge decided to alter the jury instructions to make it easier to convict you?
I’ll disagree with the characterization of jury instructions as a “technicality.”
I’ll endorse Anderson 28 and rogerwilco 29
Lawyer-specific rant:
I am very, very tired of the rule about “the jury instructions as a whole” papering over a refusal to instruct in a clear way and trying to make jury instruction issues harmless error.
There was a seminal law journal article by a great judge on the California Supreme Court in the 60s-70s called “The Harm of Harmless Error.”
I sat on a jury for a murder trial. All the evidence was circumstantial. The Circuit Judge spent an inordinate amount of time giving us instructions as to how to handle circumstantial vs. physical evidence. I can’t imagine a jury going to decide one’s fate with anything less the best instructions possible. I have no idea though whether the instructions in this particular trial were proper or not. However, proper ones are of the utmost importance to lay folks that are already tied up in the emotions of even having to be there. But that’s just me…..
Even if you think the judge erred in changing his mind on the jury instructions, is anybody buying the fantasy that Judge Wingate was part of some anti-Minor conspiracy out to get the defendant? That’s just crazy, crazy stuff. How could anyone who has practiced in front of Wingate even believe that? I have never, ever heard anyone suggest Wingate acted for political reasons in any case.
“There is something very bad-smelling about the same judge’s switching rulings on the jury instructions between the trials. I don’t know if Judge Wingate issued an opinion explaining the change or not.”
Anderson, whatever do you mean? Spill it.
New trial means the proof and evidence must once again be presented in the courtroom in front of a jury. And I know of no rule that says the same exact evidence must be presented the second time around. Likewise, the jury instructions may not have been correct the first time around, and needed to be adjusted — for legal reasons, evidentiary reasons, etc.
I did not mean to suggest that jury instructions are not important. I think they are important. I spend a lot of my time drafting them and arguing for and against them in court.
Having said that, my view expressed above about Minor is primarily while wearing my average Joe citizen hat, not my lawyer hat. And I have no sympathy for the guy whatsoever. He is reaping the whirlwind.
AFOL, you said earlier he deserves what he has gotten….. I disagree, it is my understanding he has “earned” millions of dollars…. I am not sure he deserves them……
msbroker, thanks for the correction — I agree with you — LOL