## Re: Siegelman Is Going Back To Prison

1

"Railroading" is such a negative term...and it doesn't fit very well on a sign. How about "Bush thugs fucked Don. Fuck Bush; Free Don!" Maybe a bit vulgar for a sign.

Posted by: paranoid android | Link to this comment | 03- 7-09 9:03 AM
2

A bit. But what I really want is public statements from the Obama DOJ that what prosecutors were doing under Bush wasn't business as usual, and that it's not okay. Siegelman, eh, what happened to him was unjust, but worse things happen to innocent people all the time. But you can't run a free country if people are being subjected to trumped up prosecutions on the basis of their politics.

Posted by: LizardBreath | Link to this comment | 03- 7-09 9:17 AM
3

2: Which leads to the logical conclusion that this isn't a free country.

Posted by: paranoid android | Link to this comment | 03- 7-09 9:21 AM
4

|| John Emerson, here's a responsible, eco-friendly alternative to your impalement scheme! ||>

Posted by: PGD | Link to this comment | 03- 7-09 9:22 AM
5

Hey, did anyone know that the the value of abs(n) Σn x^n equals x / (1 - x)? That's pretty neat.

Posted by: paranoid android | Link to this comment | 03- 7-09 9:30 AM
6

Umm, that's abs(n) -> Σ x^n.

Posted by: paranoid android | Link to this comment | 03- 7-09 9:31 AM
7

Forget six, I messed up again. Stupid angle brackets.

abs(n) < 1 -> Σn x^n

Posted by: paranoid android | Link to this comment | 03- 7-09 9:32 AM
8

I would rather people get fired up about Corey Maye.

Posted by: Will | Link to this comment | 03- 7-09 9:32 AM
9

Him too -- they're separate problems (and Randy Balko is my hero). Maye is about out-of-control policing, but policing that's still on some level directed at crime: it's a much bigger problem in scale than what happened to Siegelman. But what happened to Siegelman is a fundamental perversion of the law enforcement process, co-opting it for political leverage rather than crime control.

Posted by: LizardBreath | Link to this comment | 03- 7-09 9:37 AM
10

It's not interesting or particularly erroneous law on a quick reading -- the tone is "Hey, man, if the jury chose to believe Bailey, they're the finders of fact -- we can't do anything about that."

Yeah, but the entire issue is hanging on the word of one guy, and the lawyer says they are going to appeal further.

Which is true as far as it goes, but leaves Siegelman going back to prison.

The problem here is the optics (cf. Ted Stevens, Scooter Libby). They are horrendous, that is, if he didn't do it (which is what I expect). If he did do it, it's even worse.

Have anybody talked to the actual prosecutors, or sub-prosecutors involved? (Since S's laywer is alleging misconduct.) Where are they at?

If this is really flimsy, and he's up for resentencing, plus he has outstanding appeals, I don't see why we couldn't get some serious leniency at the rehearing (like time served), and then pardon the guy afterwards.

max
['Stepping in aggressively, right at this moment, is not going to go over well, I think.']

Posted by: max | Link to this comment | 03- 7-09 9:37 AM
11

7: You know, fifteen/twenty years ago, that would probably have been interesting. Now, I can't remember how series notation works well enough to figure out what it means. I grow less and less well educated as I age.

Posted by: LizardBreath | Link to this comment | 03- 7-09 9:40 AM
12

10: That's the thing -- I want the 'bad optics' addressed head on. This isn't a 'where there's smoke, there's fire' situation, this looks to be straight-up prosecutorial misconduct.

Posted by: LizardBreath | Link to this comment | 03- 7-09 9:43 AM
13

4: It's hard to compete with Mark Ames. However, my method gives the malefactor more time for the contemplation of his sins, possibly leading to repentance and rehabilitation.

Posted by: John Emerson | Link to this comment | 03- 7-09 9:44 AM
14

11: It can be used in a proof that .99999... is exactly equal to 1.

Posted by: paranoid android | Link to this comment | 03- 7-09 9:44 AM
15

10 -- 'Appeal further' means petition for cert. I don't know what they'd argue to get it, but it's not a very compelling case (looked at in the most superficial way . . .)

I suppose they can ask for en banc review -- I don't know enough about the 11th Cir. to count noses on that sort of thing. But 'flimsy' evidence gets affirmed every day of the week. The solution, like the problem, is political. And the number one answer is keeping Republicans out of office at all costs. Period.

Posted by: CharleyCarp | Link to this comment | 03- 7-09 10:05 AM
16

11: It's not actually standard sigma notation, since that's hard to do in comments. What I wrote is more ambiguous--what I meant is "the sum of the following expression substituted with n = 0, n = 1, ..., n = &infty;". Oh, and I totally screwed up 7, too. Let me try again.

Σn x^n where abs(x) < 1.

Posted by: paranoid android | Link to this comment | 03- 7-09 10:05 AM
17

Where &infty; means ∞.

Posted by: paranoid android | Link to this comment | 03- 7-09 10:07 AM
18

15: Right -- once a jury has found bad facts, regardless of how screwy the process leading to that point was, that's probably not going to get fixed on appeal. Which is why I'm thinking big loud aggressive pardon.

It's very unlikely to happen, but I think it'd be the right thing to do in this case.

Posted by: LizardBreath | Link to this comment | 03- 7-09 10:17 AM
19

16: Hah. That is neat. It'd take me a week with a textbook to figure out how to get there, but still neat.

Posted by: LizardBreath | Link to this comment | 03- 7-09 10:19 AM
20

I've always thought the Siegelman case deserved more attention. It was the use of the justice system to neutralize or destroy a major regional threat to Republican domination. Both the prosecution itself and the actual sentence were far disproportionate -- and the prosecutors were gunning for a much longer sentence yet. On top of that, there's the evidence problem.

The appeals court judges should also be looked at closely. In normal times the judiciary, rightly or wrongly, has usually been regarded as apolitical and above criticism, if only to make it possible to put an end to legal disputes. But if they're all Federalist Society members, we'd have to call their objectivity into question. (The judges)

Something left out by LB: there's evidence of Rove involvement via a US attorney married to a close Rove Associate: Rove.

Rove is an extremely cagy crook and as the article says, will be hard to nail. He's succeeded in eluding Fitzpatrick already on the Plame case. His reported confidence might be of his bluffs, but he might succeed in getting off scot free.

Obama's Justice Department's concern for executive privilege pisses me off, of course.

Posted by: John Emerson | Link to this comment | 03- 7-09 10:33 AM
21

Uh, paranoid android, are you referring to the fact that the sum of x^n from n=0 to infinity equals x^(n+1)/(1-x) provided abs(x) is less than 1?

Posted by: Eggplant | Link to this comment | 03- 7-09 10:36 AM
22

5: Did you know that 1+2+3+4+ . . . = -1/12?

Posted by: feldspar | Link to this comment | 03- 7-09 10:38 AM
23

Scalia's doctrine is that justice isn't a concern of the justice system, but just the expeditious followig of correct procedure, and that people who want justice should rely on the pardon. That certainly sounds like a good way to expedite injustice against unpopular defendants. Siegelman isn't even unpopular and a pardon looks like a long shot here.

If Obama had enough snark in him, he could cite Scalia extensively in his pardon announcement.

Posted by: John Emerson | Link to this comment | 03- 7-09 10:38 AM
24

... It's not interesting or particularly erroneous law on a quick reading -- the tone is "Hey, man, if the jury chose to believe Bailey, they're the finders of fact -- we can't do anything about that." ...

Actually the decision says (p. 50):

... Furthermore, the district court held, and we agree, that the
government's case was strong on the counts of conviction. ...

I agree also. Perhaps you can argue as with Spitzer that the investigation was politically motivated but it appears to me Siegelman was in fact guilty.

Posted by: James B. Shearer | Link to this comment | 03- 7-09 10:38 AM
25

24: What are the elements of the crime you believe Siegelman to be guilty of? Do you understand the distinction between the conduct of which Siegelman was accused, and the conventional appointment of donors to positions such as ambassadorships?What's your understanding of the evidence by which each element of the crime was proven?

I don't actually care what your answers are to those questions, but if you don't have any offhand, then your sense that it "appears" Siegelman was guilty isn't worth much

Posted by: LizardBreath | Link to this comment | 03- 7-09 10:45 AM
26

19: You can see it by differentiating the power series for the natural logarithm:
ln(1-x)=-\sum_{n=1}^\infty x^n/n
Differentiate both sides
1/(1-x)=\sum_{n=0}^\infty x^n
This only works for |x| less than 1 since that is the radius of convergence for the power series.

Alternatively, consider the identity:
(1+x+x^2+x^3+ . . . +x^n)(1-x)=1-x^{n+1}
(Basic algebra to check this)
Divide by (1-x)
1+x+x^2+ . . . +x^n=(1-x^{n+1})/(1-x)
Now, as n goes to infinity, x^{n+1} goes to zero (as long as |x| is less than 1), leaving the proposed identity.

Posted by: feldspar | Link to this comment | 03- 7-09 10:46 AM
27

Posted by: | Link to this comment | 03- 7-09 10:49 AM
28

Gaah! Ignore my 21.

Posted by: Eggplant | Link to this comment | 03- 7-09 10:50 AM
29

Divide by (1-x)

Cute.

Posted by: LizardBreath | Link to this comment | 03- 7-09 10:50 AM
30

You're making this too difficult. First let's sum the finite series:

S = x + x^2 + ... + x^n.

Multiply by x:
xS = x^2 + x^3 + ... + x^(n+1).

Then S - xS = x+ x^2 + ... + x^n - x^2 - x^3 - ... - x^(n+1) = x - x^(n+1), because everything else appears in both S and xS and cancels.

So:
S - xS = S(1-x) = x - x^(n+1) = x (1 - x^n).

Then:
S = x (1 - x^n)/(1-x).

Now, if we want an infinite series, we take n to infinity. Then x^n will either blow up (if |x| > 1), or will go to zero (if |x|

Posted by: essear | Link to this comment | 03- 7-09 10:50 AM
31

Oh, never mind, that's feldspar's second approach.

Posted by: essear | Link to this comment | 03- 7-09 10:51 AM
32

25

I don't actually care what your answers are to those questions, but if you don't have any offhand, then your sense that it "appears" Siegelman was guilty isn't worth much

I just read the opinion you linked that discusses this. I found it convincing.

Do you want Obama to pardon Scrushy also?

Posted by: James B. Shearer | Link to this comment | 03- 7-09 10:51 AM
33

And I wrote an angle-bracket instead of the HTML and the ending got lost. Fail!

Posted by: essear | Link to this comment | 03- 7-09 10:52 AM
34

If the post appointed to was a significant regulatory agency rather than a meaningless do-nothing board, to me the Siegelman case does look a bit stronger. On the other hand, the money didn't even go to Siegelman. (I am speaking from the naive, common-sense "justice" point of view, rather from the professional, expert legal point of view).

If you bracket out all the questionable things about the case, it looks stronger. This is, in fact, an instance of a robust, widely-applicable human universal, which I have discovered, and which is mine. It shall henceforth be known as Emerson's Plausibility Principle.

Posted by: John Emerson | Link to this comment | 03- 7-09 10:56 AM
35

32: I'll take that as a no, I haven't got any idea what the elements of the crime were or how they were proven. Scrushy should also be pardoned, but wasn't central to the DOJ wrongdoing -- he looks to have gotten caught up in the railroading of Siegelman.

To quote Ogged -- off to the pool!

Posted by: LizardBreath | Link to this comment | 03- 7-09 10:56 AM
36

29: Ha!

Can you tell I did this example when I was TA-ing the "Math for People Who Really Truly Don't Want to Have Anything to Do With Any Sort of Math Whatsoever, Like Really, But Have to Take One Math Class and This One Sounds Like It's Supposed to Be Fun and At Least It's Not College Algebra" (not it's actual title)?

Posted by: feldspar | Link to this comment | 03- 7-09 10:56 AM
37

34: "The case against Siegelman".

Posted by: John Emerson | Link to this comment | 03- 7-09 10:57 AM
38

What's the prize for the person who integrates the math thread and the Siegelman thread?

Posted by: John Emerson | Link to this comment | 03- 7-09 10:58 AM
39

12: This isn't a 'where there's smoke, there's fire' situation, this looks to be straight-up prosecutorial misconduct.
18: Right -- once a jury has found bad facts, regardless of how screwy the process leading to that point was, that's probably not going to get fixed on appeal.

What I am basically asking, is that if, before we go to the big guns here, we could see if the prosecutorial misconduct could be smoked out from the inside? That is, if the DoJ is willing to own misconduct, it would make this thing go a hell of a lot easier. And I would think, given that prosecutorial discretion was abused and that was driven by political influence, than surely some concern for justice can be driven by political influence as well?

Essentially, I prefer to preserve my thermonuclear reserve for the last ditch, and it doesn't seem we're quite at the last ditch yet.

max
['Is all.']

Posted by: max | Link to this comment | 03- 7-09 10:59 AM
40

38: I think you just did.

Posted by: feldspar | Link to this comment | 03- 7-09 11:04 AM
41

What's the prize for the person who integrates the math thread and the Siegelman thread?

I tried to integrate it, but it didn't converge.

Posted by: essear | Link to this comment | 03- 7-09 11:04 AM
42
Posted by: | Link to this comment | 03- 7-09 11:07 AM
43

To quote Ogged -- off to the pool!

Posted by: Bave Dee | Link to this comment | 03- 7-09 11:19 AM
44

The ToS is Grothendieck?

Posted by: feldspar | Link to this comment | 03- 7-09 11:20 AM
45

We only wish.

Posted by: John Emerson | Link to this comment | 03- 7-09 11:41 AM
46

I have to admit, 26 and 30 are a lot more readable than this, which makes me kind of sad, because I've been working on making it more readable.

Posted by: paranoid android | Link to this comment | 03- 7-09 12:02 PM
47

34

If the post appointed to was a significant regulatory agency rather than a meaningless do-nothing board, to me the Siegelman case does look a bit stronger. On the other hand, the money didn't even go to Siegelman. ...

From the decision (page 5):

... The CON Board is an arm of the State Health Planning and Development Agency and exists to prevent unnecessary duplication of healthcare services in Alabama. The Board determines the number of healthcare facilities in Alabama through a process that requires healthcare providers to apply for and obtain a certificate of a healthcare need before opening a new facility or offering a special healthcare service. The CON Board decides which healthcare applications will be approved for an announced healthcare need,
choosing between competing applications and ruling on objections filed by an applicant's competitor. ...

Sounds to me like a seat on this board could be worth quite a bit to someone like Scrushy.

Also from the decision (page 5):

On March 9, 2000, the Foundation borrowed $730,789.29 from an Alabama bank in order to pay down debt incurred by the Alabama Democratic Party for getout-the-vote expenses during the lottery campaign. This note was personally and unconditionally guaranteed by Siegelman.4 So the money went to pay a debt Siegelman was (along with another person) personally liable for. Posted by: James B. Shearer | Link to this comment | 03- 7-09 12:17 PM 48 35 I'll take that as a no, I haven't got any idea what the elements of the crime were or how they were proven. ... Why would you take it as a no? I said I had read the decision which discusses this in detail. Basically you need an explicit agreement between Siegelman and Scrushy that Siegelman would perform some specific official action in exchange return for Scrushy's contribution. There was evidence offered that such an agreement existed including the testimony of Bailey, a long time aide to Siegelman. Posted by: James B. Shearer | Link to this comment | 03- 7-09 12:32 PM 49 || You know what can really make you feel old? Creating your first MySpace page (it's for a band) two weeks after one's thirty-fifth birthday and not being able to figure out to save your life how to "mod" the page (like other people do, I've seen it!) so it looks halfway decent. |> Posted by: Bave Dee | Link to this comment | 03- 7-09 12:43 PM 50 || being able to figure out to save your life how to "mod" the page (like other people do, I've seen it!) so it looks halfway decent. Basically, going by what I remember from when I had one a long time ago, you have to go in, figure out the CSS code for the pages, and then write a bunch of CSS that gets appended to MS CSS that makes everything look ok. I did it, but it sucked. Hackery of the first water. So everyone uses various page mod programs/scripts/whatever that write the CSS for you. Google 'myspace page mod' and see what pops up. |> max ['Tres ugly.'] Posted by: max | Link to this comment | 03- 7-09 12:51 PM 51 Shearer uncovers pernicious central planning in read state health care. Math thread looks to me like a converging geometric series (multiplier in effect! ). With better typesetting, there would be some indexing like i = 0,1,2,...,n. Posted by: Econolicious | Link to this comment | 03- 7-09 1:11 PM 52 The important offense here isn't against Siegelman, and therefore a pardon doesn't do much of anything to ameliorate the situation. It's certainly appropriate to pardon Siegelman after his prosecutors, or at least Rove et al, are convicted. Posted by: politicalfootball | Link to this comment | 03- 7-09 1:30 PM 53 There was evidence offered that such an agreement existed including the testimony of Bailey, a long time aide to Siegelman. "Including" s/b "limited to", and his testimony didn't include even claimed direct knowledge of such an agreement. Posted by: LizardBreath | Link to this comment | 03- 7-09 2:47 PM 54 52: The point of the pardon is to make a statement: "We're not pardoning this guy out of mercy, it's because we believe, after an investigation of the prosecution, that he did nothing wrong and was convicted only as the result of prosecutorial misconduct. While we may not be able to convict the bad actors, we're certain enough of what happened to make it unjust to leave him in prison." Posted by: LizardBreath | Link to this comment | 03- 7-09 2:50 PM 55 47, 48: Look, I won't dispute that Siegelman was a minorly "corrupt" Dem politician, but no more so than 80% of the politicians who get elected to anything above dogcatcher in this great land of ours. Sounds to me like a seat on this board could be worth quite a bit to someone like Scrushy. And of course Scrushy was on the same board in three prior administrations (I believe all Republican). The decision is a masterpiece of legally correct (I assume) but morally bankrupt doublespeak. The discussion of the "upward departure" is particularly rich, especially given that comparable prior cases (or worse) in Alabama resulted in probation. Given the circumstances, The district court took judicial notice of the 'plethora of media attention' to the case by the local and national media, and relied on this in finding that the case had severely public confidence in Alabama state government. is nothing more than a big fat "Fuck You" to the notion of judicial fairness and the rule of law. Posted by: JP Stormcrow | Link to this comment | 03- 7-09 2:50 PM 56 "severely undermined public confidence" Posted by: JP Stormcrow | Link to this comment | 03- 7-09 2:52 PM 57 Look, I won't dispute that Siegelman was a minorly "corrupt" Dem politician You should dispute that. There's plenty of evidence that the prosecution was politically motivated, and no evidence whatsoever for an explicit agreement in the absence of the inconsistent testimony of Bailey. Posted by: LizardBreath | Link to this comment | 03- 7-09 2:55 PM 58 And to be clear, if there's no explicit agreement, there was no crime. It's not that if there was no explicit agreement, proving the crime would be difficult or impossible -- it's that in the absence of an explicit agreement, the conduct described is not corrupt. Posted by: LizardBreath | Link to this comment | 03- 7-09 2:58 PM 59 Man, it really sucks that my reaction to this story is "yeah, but how many poor black people get railroaded like this every day and nobody's taking up their causes." I understand your objection to that very point, Liz, but jeez, I've gotten pretty damned cynical about justice. Posted by: Jackmormon | Link to this comment | 03- 7-09 3:06 PM 60 It's really not about justice, or at least about justice to Siegelman; you're perfectly right that a dozen worse things happen to innocent people every Wednesday. It's about how very, very bad it is to stand by while a political party coopts the criminal justice system to control its opponents. Posted by: LizardBreath | Link to this comment | 03- 7-09 3:15 PM 61 you're perfectly right that a dozen worse things happen to innocent people every Wednesday Fuckin' Wednesday. Posted by: Sifu Tweety | Link to this comment | 03- 7-09 3:19 PM 62 What LB said in 60. I'm surprised that so feel people understand what is happening here. This is the kind of thing that Mugabe or Niyazo would do, absolute bottom-level police-state corruption. I suspect that there's no "there" there as far as the charge goes. To anyone but our resident idiot savant, the charge looks humdrum in the context of actual American politics. I'd be perfectly happy to put 80% of American politicians in jail for 20 years, but I'm not willing to let Rove select just one to ruin. To a non-idiot-savant, the possibility of perjury or tainted testimony also seems high. Likewise the possibility that all of the judges are in on the game. Posted by: John Emerson | Link to this comment | 03- 7-09 3:40 PM 63 61: Don't you dare talk about Wednesday like that! Wednesday is the greatest! Posted by: paranoid android | Link to this comment | 03- 7-09 3:40 PM 64 "so few" Posted by: | Link to this comment | 03- 7-09 3:40 PM 65 63: Oh, Wednesday seems great at first, but you have to watch Wednesday -- it'll turn on you. Tuesday, now: it's not cheap and flashy like Wednesday, but it'll last. Tuesday's a weekday you can rely on. Posted by: LizardBreath | Link to this comment | 03- 7-09 3:49 PM 66 Wednesday will kick your ass. Posted by: essear | Link to this comment | 03- 7-09 3:51 PM 67 That Wednesday can kick my ass any day of the week. Posted by: paranoid android | Link to this comment | 03- 7-09 3:53 PM 68 55 And of course Scrushy was on the same board in three prior administrations (I believe all Republican). He also contributed$350000 to Siegelman's opponent in the previous election. Which is why he had to pay $500000 to get Siegelman to appoint him to the board. Posted by: James B. Shearer | Link to this comment | 03- 7-09 3:56 PM 69 Yep. And it's why he had to explicitly agree to that exchange by writing the check at a meeting that took place a week before the check was written. Posted by: LizardBreath | Link to this comment | 03- 7-09 4:15 PM 70 53 "Including" s/b "limited to", and his testimony didn't include even claimed direct knowledge of such an agreement. You also have the timing. A$250000 check dated 7/19/1999, Scrushy appointed 7/26/1999 and a second check for $250000 in May 2000. And you have the irregular way the first check was arranged. And you have the testimony Mike Martin the former CFO of HealthSouth (page 7): He testified that Scrushy told him that to "have some influence or a spot on the CON Board," they had to help Siegelman raise money for the lottery campaign. Scrushy said that if they did so, "[they] would be assured a seat on the CON Board." Martin testified, "[W]e were making a contribution . . . in exchange for a spot on the CON Board." I don't know what you mean by "direct knowledge" of the agreement. You want a witness to the private meetings in which Scrushy and Siegelman allegedly made their corrupt deal? Posted by: James B. Shearer | Link to this comment | 03- 7-09 4:18 PM 71 69 Yep. And it's why he had to explicitly agree to that exchange by writing the check at a meeting that took place a week before the check was written. Scrushy did not write the check (from the opinion p.7-8): Martin also testified that Scrushy told him that HealthSouth could not make the payment to the lottery campaign, nor could he do it personally because "we [HealthSouth] had not supported that and that his wife, Leslie, was against the lottery, and it would just look bad if HealthSouth made a direct contribution to the lottery, so we needed to ask - he instructed me in particular to ask our investment banker, Bill McGahan, from [the Swiss bank] UBS, to make the contribution." Bill McGahan did not want to make such an "out of the norm" donation and hoped the matter would "go away." Over the next two weeks, Martin called McGahan at least once a day to ask him about the status of the UBS donation, and told McGahan that Scrushy was going to fire UBS if it did not make the contribution. Finally, Martin testified, Scrushy himself called McGahan to "put more pressure" on him to make the contribution. McGahan testified that he did not want UBS to make such a large contribution directly, so he told Martin that he would get Integrated Health Services ("IHS") of Maryland to make the donation to the lottery campaign in exchange for UBS reducing an outstanding fee that IHS owed UBS. IHS agreed to this arrangement and donated$250,000 to the Foundation in exchange for a reduction of \$267,000 in the fee it owed UBS.

The IHS "donation" was in the form of a check dated July 19, 1999, made payable from itself to the Foundation. Martin testified that Scrushy told him it was important that he, Scrushy, hand deliver the IHS check to Siegelman, so Martin delivered the check to Scrushy so that he could do so.

Posted by: James B. Shearer | Link to this comment | 03- 7-09 4:32 PM
72

Wednesday is Prince spaghetti day.

Posted by: md 20/400 | Link to this comment | 03- 7-09 4:39 PM
73

Wednesday is also Ben's favorite Addams.

Posted by: md 20/400 | Link to this comment | 03- 7-09 4:39 PM
74

Wednesday is totally pwned.

Posted by: paranoid android | Link to this comment | 03- 7-09 4:49 PM
75

57: You should dispute that. There's plenty of evidence that the prosecution was politically motivated, and no evidence whatsoever for an explicit agreement in the absence of the inconsistent testimony of Bailey.

LB, note that I called him "minorly corrupt" like 80% of all politicians, not that he is necessarily guilty of this particular crime. As you note ambassadorships and many, many appointed positions at all levels of government are "for sale" to the same degree as this. I am complete agreement that this was a politically-motivated prosecution of the type that the Rovian mentality saw as part and parcel of ensuring a permanent Republican majority. Alabama (and Mississippi has had similar prosecutions) was just a place that had enough of the judiciary and prosecutorial apparatus in the pocket of the criminal Republican element to pull it off. It is a chilling and potentially democracy-destroying development.

But Siegelman was a politician who had made enough peace with that environment to be a player.

Posted by: JP Stormcrow | Link to this comment | 03- 7-09 5:03 PM
76

69: I don't know what you mean by "direct knowledge" of the agreement. You want a witness to the private meetings in which Scrushy and Siegelman allegedly made their corrupt deal?

The point is that in the absence of an explicit agreement, nothing corrupt happened. There's no evidence of the existence of an explicit agreement; the tainted and incredible evidence that was put forth came from people, like Bailey, who weren't in the position to know whether or not there was an explicit agreement.

71: And Bailey originally said that he saw that check delivered at a meeting well before the date of the check. By the time of trial, he'd retracted that story, but his original inconsistent story wasn't provided to the defense.

Posted by: LizardBreath | Link to this comment | 03- 7-09 5:07 PM
77

LB, note that I called him "minorly corrupt" like 80% of all politicians,

Free-floating cynicism is a bad habit to get into. If you're saying that he's probably no less corrupt than most politicians, that's by definition true of any politician you don't know more about. But it's not at all relevant in this context, and it's natural to equivocate between 'corrupt because who isn't?' and 'corrupt such that prosecution is appropriate'. If you don't mean the latter, affirmatively bringing up the former only confuses the issue.

Posted by: LizardBreath | Link to this comment | 03- 7-09 5:12 PM
78

76.2 That is the question I have for you legal sorts; to me the full story of the Bailey testimony and the way he and it was handled by the prosecutors should open some clear avenue of redress for Siegelman even if (or maybe especially because) a lot of it came out post-verdict. But that does not seem to be the case. (And yes, I know, welcome to the world of many powerless folks who find themselves in court. They all can't get Dylan to write them songs.)

Posted by: JP Stormcrow | Link to this comment | 03- 7-09 5:14 PM
79

77: OK, this where you and I disagree on tactics. If Siegelman comes off as a complete innocent (not speaking legally*) it broadens the field for all of the intellectually-dishonest nitpicking Shearers of the world to come charging in to point out where that is not the case; even though, as you say, it is not relevant to this particular prosecution.

*I think the difference stems from the fact that you are (surprise, surprise) looking at this primarily as a lawyer and I am (surprise encore) not.

Posted by: JP Stormcrow | Link to this comment | 03- 7-09 5:23 PM
80

76

The point is that in the absence of an explicit agreement, nothing corrupt happened. There's no evidence of the existence of an explicit agreement; the tainted and incredible evidence that was put forth came from people, like Bailey, who weren't in the position to know whether or not there was an explicit agreement.

According to the testimony, Scrushy told Martin there was such an agreement and Siegelman told Bailey there was such an agreement. Sounds like evidence to me. What was incredible about Bailey's evidence and why wasn't he in a position to know?

And Bailey originally said that he saw that check delivered at a meeting well before the date of the check. By the time of trial, he'd retracted that story, but his original inconsistent story wasn't provided to the defense.

There is nothing in the decision about a prosecution failure to disclose this. You have a citation?

Posted by: James B. Shearer | Link to this comment | 03- 7-09 5:30 PM
81

Wednesday is the greatest!

The mere naming of Woden's Day is an affront to this great Christian nation.

They all can't get Dylan to write them songs

But their chances would be improved if they bought some magazine subscriptions made a large campaign contribution.

the agreement must be explicit,
but there is no requirement that it be express
(p. 20, opinion)

This is where I lose it. I don't see how an agreement can be explicit without being express. If one is using winks and nods, or sign language, or holding up a paddle to bid at an auction, it may not be verbal but it surely is express communication. Without expression intended to communicate - which I don't see here - I don't see how there can be a corrupt exchange. The mere generalized expectation - 'he is going to want a seat on the CON board for that check' - isn't enough

Posted by: Michael H Schneider | Link to this comment | 03- 7-09 5:36 PM
82

Our idiot savant is the least fun idiot savant in the whole history of the type, if you ask me.

James, what is the fifth root of 23334455 x 9384746? Express your answer in duodecinary notation, please.

Posted by: | Link to this comment | 03- 7-09 6:15 PM
83

According to the testimony, Scrushy told Martin there was such an agreement

Read more closely -- picking, one can presume, the strongest language out of Martin's testimony, none of it speaks to what Martin says Scrushy says Siegelman explicitly agreed with Scrushy, rather than what Martin says Scrushy said he believed was necessary to cause Siegelman to come through with the appointment. And the same for Bailey; the opinion talks about him testifying to what Siegelman said Scrushy would have to do, but not to what Siegelman said he and Scrushy had explicitly agreed. Now, there are problems with relying on Bailey's testimony at all, but as it's represented in the opinion, he doesn't even claim to have knowledge of an explicit agreement.

Posted by: LizardBreath | Link to this comment | 03- 7-09 6:19 PM
85

That is, he testified to the existence of those notes at trial.

Next, Mukasey materially misstates Bailey's testimony at trial. In fact, Bailey brought the proceedings to a stop by referring openly to the written notes he prepared at the prosecutor's behest. The defense demanded to see them, and in a chambers hearing, Judge Fuller directed the prosecutors to turn them over. The prosecutors denied their existence. Bailey stated that he was required to prepare the notes on paper supplied by the prosecutors, and they were placed in a binder that the prosecutors or an FBI agent working with them retained. Mukasey's remaining statements are therefore at a minimum highly misleading and very poorly informed.

So, either Bailey's a liar, or the prosecution was withholding exculpatory evidence, or both. Can't be neither.

Posted by: LizardBreath | Link to this comment | 03- 7-09 6:27 PM
86

83

The decision quotes (p 23) the US Supreme Court as follows:

... The Court said that the "Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts."

According to three federal appeals court judges the testimony cited was legally sufficient to establish the existence of an explicit agreement. I don't see any reason to disbelieve them.

Posted by: James B. Shearer | Link to this comment | 03- 7-09 6:33 PM
87

The mere naming of Woden's Day is an affront to this great Christian nation.

MINDESTENS HAT DER TAG EINEN GERMANISCHEN NAMEN. 'MIDWEEK' IST AUCH EIN SCHÖNER NAME FÜR EINEN TAG.

Posted by: OPINIONATED PHILIPP VON ZESEN | Link to this comment | 03- 7-09 6:37 PM
88

Courts are very unwilling to disturb a jury's findings of fact; once there's a verdict, it's very unlikely to be overturned on the basis that the evidence was insufficient. Saying that the court didn't overturn the verdict says nothing informative about the quality of that evidence.

Posted by: LizardBreath | Link to this comment | 03- 7-09 6:39 PM
89

87: "Hump Day" also works. I don't know what that would be in German.

Posted by: Jesus McQueen | Link to this comment | 03- 7-09 6:42 PM
90

88

Courts are very unwilling to disturb a jury's findings of fact; once there's a verdict, it's very unlikely to be overturned on the basis that the evidence was insufficient. Saying that the court didn't overturn the verdict says nothing informative about the quality of that evidence.

The court threw out 2 counts in the very same opinion on the basis that the evidence was insufficient.

Posted by: James B. Shearer | Link to this comment | 03- 7-09 6:44 PM
91

I'm middlin' sympathetic to James's reading of the appelate decision, at least in the context of our crappy judicial system. Siegelman may not be guilty, but I'm pretty sure the court is right that a conviction with this level of evidence is standard operating procedure.

(As a complete aside, I am reminded of Kinsley's comment that the real scandal is what's legal. Absent a judicial finding of a pre-arranged quid pro quo, Siegelman's behavior is, as LB notes, completely legal. That sucks.)

James B. brings up the central point at the outset:

Perhaps you can argue as with Spitzer that the investigation was politically motivated but it appears to me Siegelman was in fact guilty.

That's right. Political prosecutions are a really, really bad thing, and as with the Spitzer probe, this looks awfully political.

Clinton did, in fact, get a blowjob, but even if we're going to pretend that this is worth impeachment, it's ludicrous to suggest that his behavior is somehow outside the realm of normal behavior for politicians. The fact that Democrats are investigated and punished selectively for this sort of behavior is a big problem - even if they are guilty.

Posted by: politicalfootball | Link to this comment | 03- 7-09 6:44 PM
92

James, I'm puzzled. How do you see 990 as contradicting 88?

Posted by: politicalfootball | Link to this comment | 03- 7-09 6:45 PM
93

78: There's not a heck of a lot you can do with new evidence that shows up after trial; laws differ state by state, and I don't know about Alabama. But you're generally going to be stuck with the facts and evidence on the record at your trial, and with the jury's interpretation of those. Appeals are mostly for correcting legal errors, not for getting the facts straight.

Really, this sort of thing is exactly what pardons are for.

Posted by: LizardBreath | Link to this comment | 03- 7-09 6:47 PM
94

90, of course, not 990.

Posted by: politicalfootball | Link to this comment | 03- 7-09 6:47 PM
95

90: Right, and if you read it, you find that what they mean by 'insufficient' was that there was literally no evidence on a necessary point. They're not making judgments about quality, they're identifying total absence.

Posted by: LizardBreath | Link to this comment | 03- 7-09 6:48 PM
96

91: Seriously, I'm not arguing that the appellate decision is bad law; the sort of shit that the prosecution appears to have pulled here (that is, suborning perjury) isn't something that an appellate court is in a good position to fix. (There would probably have been an equally respectable opinion that could have been written overturning the conviction entirely, but the failure to have done so isn't a problem for the opinion.)

That's why I'm talking pardon, rather than "Take it to the Supreme Court".

Posted by: LizardBreath | Link to this comment | 03- 7-09 6:52 PM
97

91: That's right. Political prosecutions are a really, really bad thing, and as with the Spitzer probe, this looks awfully political.

I'd say there's a really sharp difference between this and Spitzer. I have dark suspicions about the Spitzer probe, but there's no question that it found what it found -- the man was screwing hookers. And while the release of the information seems to have been calculated for political damage, he wasn't prosecuted. If he had been, that would have been really strange.

This one looks to me as if the most likely state of affairs is that it was a complete frame up; appointing a large donor to a government job isn't even 'unsavory but everyone gets away with it', it's perfectly openly acceptable so long as explicit agreements for quid pro quo aren't made. The evidence of political evidence tampering is good enough that I don't see any reason to believe that Siegelman behaved wrongly in the slightest in this context.

Posted by: LizardBreath | Link to this comment | 03- 7-09 6:57 PM
98

I think that the Department of Justice, per Scalia, should be renamed The Department of Expeditious Procedurally Correct Judgements, so that people who whine about"justice" and "fairness" can be known
for what they are.

Posted by: minneapolitan | Link to this comment | 03- 7-09 7:21 PM
99

98 puts me in the mood to watch Brazil.

Posted by: paranoid android | Link to this comment | 03- 7-09 7:30 PM
100

And 100 puts me in the mood to watch Kobe.

Posted by: paranoid android | Link to this comment | 03- 7-09 7:38 PM
101

Calling it "The Department of Law" would make the same point more gracefully. You know what I want, come to think of it? I want the War Department back. We don't need to spend as much as the entire rest of the goddamn world on Defense -- it's about War, and if it's going to be about War, we should say the word.

Posted by: LizardBreath | Link to this comment | 03- 7-09 7:38 PM
102

Por que no funciona mi maldita codigo? Debe funcionar!

Posted by: paranoid android | Link to this comment | 03- 7-09 7:47 PM
103

Argh. I've been slacking with the whole learning Spanish project. That's almost comprehensible, but not. I want it to mean, "Why isn't it useful to say bad words to me? It ought to be useful." But that seems unlikely.

Posted by: LizardBreath | Link to this comment | 03- 7-09 7:50 PM
104

Aja. Debo depurar el otro codigo.

Posted by: paranoid android | Link to this comment | 03- 7-09 7:50 PM
105

Debo decir "codigo fuente", e.g. "source code".

Posted by: paranoid android | Link to this comment | 03- 7-09 7:51 PM
106

Holy Mountain is a very bad movie, in my controversial opinion, but listening to the commentary did get me talking Spanish.

Posted by: paranoid android | Link to this comment | 03- 7-09 7:52 PM
107

Ah. So it's "Why doesn't my damn code work? It ought to work."

Posted by: LizardBreath | Link to this comment | 03- 7-09 7:54 PM
108

Free-floating cynicism is a bad habit to get into.

Free-floating cynicism is okay, I think, so long as it does just float freely. But I wholeheartedly agree with your 77. In this context, citing the corruption of all or most politicians runs the risk of conceding far too much to politically-motivated corruption of the prosecution.

Posted by: Mary Catherine | Link to this comment | 03- 7-09 7:57 PM
109

93: Really, this sort of thing is exactly what pardons are for.

Yes, I can understand that. However, something that has intrigued me (and I think is possibly relevant here) since I learned of it in a Kim Lane Scheppele article on the 2000 recount*, is the presence of explicit "rule-of-law" clauses in the constitutions of many "post-horror" states (Germany, many countries in Eastern Europe and South Africa).

The main idea at stake in much contemporary comparative rule-of-law jurisprudence is the principle that the law itself cannot be used as a tool of abuse against those subject to the law. This is not the same as the proposition that government must operate through law or that the institutions of state must be constrained by law, both of which are already included in the ordering principles of the constitutional state. The rule of law's new form—that it checks whether law itself is being used to cause harm—suggests that it is a different principle responding to a different set of problems and a different history. [emphases in original]

I'd love to not have to actually live that history here in the US to learn and adopt the principle. ...legality alone does not entail legitimacy and that the faithful operation of the law itself is no excuse for abuses that occur in law's name.

*I recommend reading the article (When the Law Doesn't Count: The Rule of Law and Election 2000), but be well warned that in addition to containing interesting stuff on new interpretations of rule-of-law it is sure to make your blood boil all over again.

Posted by: JP Stormcrow | Link to this comment | 03- 7-09 8:03 PM
110

108: Yes, I was throwing "corrupt" and "corruption" around a bit too freely upthread.

Posted by: JP Stormcrow | Link to this comment | 03- 7-09 8:06 PM
111

Man, law articles have so many footnotes.

Posted by: paranoid android | Link to this comment | 03- 7-09 8:18 PM
112

92 94

I believe it suggests that such reversals may not be as rare as LB would have us believe.

Posted by: James B. Shearer | Link to this comment | 03- 7-09 8:26 PM
113

111: Your work is ingenious. It's quality work. And there are simply too many footnotes, that's all. Just cut a few and it will be perfect.

Posted by: OPINIONATED EMPEROR JOSEPH II | Link to this comment | 03- 7-09 8:29 PM
114

109: This is very important stuff -- that something was done according to law is very far from it being just, or reasonable, or okay. I'm in a situation with an institutional client right now where they're screwing someone, who's sued them for relief. And the reasonable thing to do would be to look at the situation and go "Whoops, no one did anything wrong on purpose, and legally we're not required to help you, but let's straighten this all out." And the client is sticking to its absolutely unreasonable guns, and legally they're entitled. (I'm sort of hoping a judge looks at the situation and cheats a little to fix this -- legally we win, but we really shouldn't.)

Posted by: LizardBreath | Link to this comment | 03- 7-09 8:30 PM
115

95

So if you accept the testimony of Martin and Bailey, it is sufficient as a matter of law to prove the existence of an explicit agreement?

Posted by: James B. Shearer | Link to this comment | 03- 7-09 8:31 PM
116

115: According to the Eleventh Circuit, if a jury buys it, sure.

Posted by: LizardBreath | Link to this comment | 03- 7-09 8:33 PM
117

The relative merits of defending Siegelman within the limits of the legal system and arguing with James Shearer are instructive.

Posted by: foolishmortal | Link to this comment | 03- 7-09 8:36 PM
118

legality alone does not entail legitimacy and that the faithful operation of the law itself is no excuse for abuses that occur in law's name.

On this issue, I highly recommend this film about Naples and city politics. I was expecting something more or less about corruption outside the law - straightforward bribery, something like that - but it was way more interesting than that.

Posted by: eb | Link to this comment | 03- 7-09 10:03 PM
119

97

"... appointing a large donor to a government job isn't even 'unsavory but everyone gets away with it', it's perfectly openly acceptable so long as explicit agreements for quid pro quo aren't made. ..."

Of course it is unsavory especially when the government job in question regulates the large donor's business.

Posted by: James B. Shearer | Link to this comment | 03- 7-09 10:52 PM
120

Go home, James. I don't like the American system of government, but you don't even have any idea what it is. Just go away.

Posted by: minneapolitan | Link to this comment | 03- 7-09 11:13 PM
121

James, it's all a rich tapestry, of course, but I think you've lost hold of anything that even resembles a thread.

Posted by: Mary Catherine | Link to this comment | 03- 7-09 11:17 PM
122

A fiber, perhaps? Maybe a protein tube? What about one of those cheeze strings that form when you're taking a piece of pizza?

Posted by: paranoid android | Link to this comment | 03- 7-09 11:35 PM