Editor's Note: Alabama legal commentator Roger Shuler, at right, writes below about the March 7 acquittals of all defendants in one of the nation's major public corruption trials of recent years. The Justice Department had accused advocates of electronic bingo of conspiring to bribe state legislators. Defendants did not bother to call any defense witnesses in the retrial of a case resulting in no convictions during a first trial last summer. Several of DOJ's prosecutors initiating the case had been notorious previously for their tactics against Democratic former Alabama Gov. Don Siegelman, who is appealing his 2006 convictions to the Supreme Court with the support of 113 former state attorneys general in an unprecedented filing saying the DOJ's charges have no basis in law. The massive bingo prosecution has cost state and federal taxpayers millions, and has kept Alabama politics in turmoil for nearly two years. For more background on these and other Deep South cases, visit Shuler's blog, Legal Schnauzer.
By Roger Shuler
One of the most embarrassing episodes in the history of the U.S. Department of Justice (DOJ) ended March 7 when a federal jury found that all defendants in the Alabama bingo trial were not guilty. The jury clearly reached the correct verdict -- and after two trials and a months-long, anti-bingo crusade led by former Governor Bob Riley (below right) -- citizens might be tempted to say, "Whew, thank God that's over."
But the public should resist such a response, no matter how understandable it might be. That's because officials who were responsible for bringing this bogus case should be held accountable, either through an internal DOJ investigation or a Congressional review. Better yet, we hope the defendants can uncover some uncomfortable truths, and seek significant damages, with one or more massive lawsuits -- perhaps through the civil provisions under the Racketeer Influenced and Corrupt Organizations Act (RICO).
If any of this shines unflattering light on the Obama administration, so be it. The president has either adopted many of George W. Bush's wrong-headed notions on justice -- or turned a blind eye on his predecessor's corrupt activities. So now it's time for Eric Holder (left) and company to "enjoy" some scrutiny under a white-hot light. If it costs Obama the 2012 election . . . well, tough beans. The president has repeatedly proven that he is not deserving of progressives' support anyway.
The Alabama bingo investigation / trial was a disgrace from the outset, and the public deserves answers on why millions of its dollars were wasted on a sideshow designed to help Alabama Republicans. Obama has had almost four years to do the right thing on the justice front -- to return us to a nation governed by the rule of law -- and he has failed at every turn. He and his "justice department" deserve to be exposed.
Why is this so important? Well, the bingo trial was unconstitutional on its face. In fact, it might be the most blatant example of a political prosecution in the history of our republic -- and it happened under a Democratic administration. The thought of a Mitt Romney presidency makes me want to puke, but I don't see how he could be worse than Obama has been on justice issues.
Multiple rulings from the U.S. Supreme Court have held that political prosecutions are prohibited by the Fifth and Fourteenth Amendment right to equal protection. Should we stand for federal prosecutors who ignore key provisions of the U.S. Constitution? Should we support an administration that countenances such unlawful activity? No, we should not -- and that's why an investigation is needed.
As a sidebar issue, someone should make sure that former Alabama Congressman Artur Davis no longer has access to computers, microphones, Web accounts, cameras, or any other communication devices. That will save Davis, who long ago reached the status of "utterly irrelevant," from making the kinds of farcical statements he issued in the wake of yesterday's verdicts. Why did Artur Davis even care about the outcome of the bingo trial? I have no idea; on the surface, it didn't appear to involve him at all.
Before we touch on Artur Davis, let's get to the heart of what essentially was an easy case. The government charged that certain pro-bingo forces -- the most notable being Montgomery gambling magnate Milton McGregor (right) -- bribed state legislators to vote for a bill that would boost electronic bingo. At the heart of the case was legislation that clearly had supporters and opponents -- those who were pro-bingo and those who were anti-bingo.
The overarching question at the heart of the bingo trial should have been this: Why did federal investigators target only the pro-bingo side, made up mostly of Democrats? Why did the feds tape phone calls made only by pro-bingo folks, while ignoring the activities of anti-bingo folks?
The answer? The feds were not interested in prosecuting crimes; they were interested in prosecuting certain people. That mindset was at the heart of the unlawful Don Siegelman prosecution, and it is forbidden by our Constitution. We examined the issue in a post titled "Don Siegelman and the Evil of a Political Prosecution":
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.... The nation's highest court has spelled it out for prosecutors, so there is no excuse for their actions in the bingo case: Federal courts generally have accepted the two-pronged test for selective prosecution set out in U.S. v. Berrios, 501 F. 2d 1207 (1974):
To support a defense of selective or discriminatory prosecution, a defendant bears a heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’
U.S. District Judge Myron Thompson deserves credit for handling the bingo trial in a fashion that led to a just outcome. But he should have done more, by calling out the government for "intentional and purposeful discrimination." At the outset, Judge Thompson should have said something like this:
This case revolves around a political battle over certain proposed legislation, which had both supporters and detractors. If you were looking to prosecute crimes connected to this legislation, you should have examined the behavior on both sides. In other words, there are individuals who are 'similarly situated' to the defendants you have charged with crimes. That the prosecution has failed to investigate these similarly situated individuals means you have failed the test set out in Oyler and other U.S. Supreme Court cases. I am dismissing this prosecution on the grounds that it is unconstitutional.
I'm not a lawyer, and I don't pretend to be an expert on criminal procedure in federal courts. But I'm pretty sure Thompson had the authority under the law to make such a finding. Lawyers for the defendants should have filed motions, asking him to make such a finding. What if Thompson had taken this step? Justice would have been served, huge amounts of time and money would have been saved, and prosecutors would have been put on notice that politically motivated cases would not be tolerated in the Middle District of Alabama -- and hopefully not anywhere else, either.
As for Artur Davis, perhaps he should join the circus. Get a load of his clownish reaction to yesterday's verdicts:
It’s a huge setback for anyone who wants to root public corruption out of Alabama. Tragically, an Alabama jury was not bothered by evidence that a powerful interest group brazenly tried to buy votes with campaign contributions; that same jury was not bothered by evidence that legislators changed their votes solely because of those contributions; and that same jury was unfazed by the fact that the gambling lobby obviously viewed the legislature as a for sale, for profit institution.
I hope that the fact that this jury got it so wrong will not deter the Attorney General from his aggressiveness in pursuing corruption by current and former officials, and I hope that the new Republican majority understands that its calling now is to pass strict limits on campaign spending and instant disclosure rules so that money is limited and identified in real time.
Lastly, the Democratic Party is now officially the state’s gambling party. Alabamians who want another economic future and real political reform should know that the party offers them no home and they should take their votes and their goals for the state elsewhere.
Artur Davis (right) shows no concern about violations of fundamental constitutional rights. Instead, he displays only a warped sense of political gamesmanship. He takes the outcome of a criminal trial and uses it to bash the Alabama Democrats who soundly rejected him in November 2010. It's hard to get more loathsome than that. Many citizens, I suspect, are smart enough to know that Artur Davis is a political buffoon; they don't need to take their cues from a bitter has-been. They should direct their anger in the right direction -- toward the U.S. Department of Justice. And they should demand, in the wake of the Alabama bingo trial, that heads start to roll.
In the meantime, we hope the bingo defendants seek compensation through the civil justice system. Immunity of various sorts might protect many of those responsible for the prosecution. But we suspect there might be ways around those hurdles. Joe Espy, one of McGregor's attorneys, hinted yesterday that he will look at those options:
Espy said they were going to seriously look at avenues to try to recover some of that money McGregor had to spend in his defense. He said they would also look at possible legal action against players who participated in the process, but would not specify who he was referring to.
I'm betting that certain individuals connected to the bingo prosecution are taking steps to hide/protect their assets. And that probably includes some prominent Republicans, both in Alabama and beyond. It might also includes some pro-Obama, elitist Democrats.
If justice still means anything in our so-called democracy, certain folks will be losing significant assets in the not-too-distant future. It couldn't happen to a more deserving bunch.
Editor's Postscript: A Justice Department spokeswoman declined comment on the matter and said it doesn't have an estimated cost of the investigation and prosecution.
Related News Coverage
Florence Times-Daily (Alabama), Millions lost in Alabama gambling trial, Mike Goens, March 11, 2012. Did the guilty get away with it or did another political witch hunt blow up in the faces of those with an agenda? Either way, between $35 million and $40 million of our tax dollars walked out the door Wednesday with the remaining six defendants in a federal gambling corruption trial. All six, as well as fellow defendants who were acquitted in 2011 during the first trial, were found not guilty Wednesday. By the way, some estimate as much as $50 million was spent on investigating and prosecuting the defendants, which included a casino owner, former and current state legislators, lobbyists and others. In trying to answer the question posed above, it seems logical this case is another example of a political witch hunt gone bad....You know, $35 million could pay for a nice prison in a state so financially strapped that many convicts will likely be released early because it cannot afford to house them. Imagine that, building a new prison for real criminals instead of wasting money on a political agenda. Don’t underestimate the financial losses and attacks on personal reputations that defendants suffered in this case. The government doesn’t have to worry about those individuals. Prosecutors can go on to the next case without any financial obligation. It’s unfair at best.
WHNT-TV NEWS 19 of Huntsville, Alabama, The jury has announced verdicts in the state bingo trial, March 7, 2012. The jury found all defendants NOT guilty of all charges. The defendants are Milton McGregor, lobbyist Tom Coker, former State Senator Larry Means, Senator Jim Preuitt, Senator Harri Anne Smith and Jay Walker. All are now cleared.
Montgomery Advertiser, Gambling trial defendant Crosby found dead, Sebastian Kitchen, Jan. 30, 2012. Joseph "Ray" Crosby, one of seven remaining defendants in a federal corruption case tied to gambling in Alabama, died Sunday just a day before they were scheduled to begin the second trial in the case.The Montgomery Police Department confirmed Sunday night that it "is conducting a death investigation after Joseph Ray Crosby was found dead in his residence late Sunday afternoon," according to an email from Sgt. R.L. Duckett. "The cause and manner of death were scheduled to be in court today for the start of jury selection in their second trial. The judge scheduled jury selection to begin at 9 a.m.Crosby, who went through a messy divorce during his legal troubles, faced one remaining bribery charge. The judge dropped the other 12 charges against Crosby and, during the trial that ended in August, the jury could not reach a unanimous decision on that outstanding bribery charge against Crosby. The jury did not find any of the defendants guilty of the more than 120 counts against them during the 10-week trial, and two of the defendants were found not guilty of all of the charges against them. The judge declared a mistrial on the other 33 counts on which the jury could not reach a unanimous decision.
Justice Integrity Project, Alabama Gambling Leader Claims DOJ Misconduct; Top Prosecutor Quits, Andrew Kreig, Jan. 20, 2012. Facing retrial Jan. 30 on federal corruption charges, Alabama’s top promoter of legalized gambling alleges that the elite Justice Department unit prosecuting him illegally suppressed evidence during his first trial last summer. Meanwhile, that unit’s deputy chief suddenly resigned this month. Victoryland bingo parlor owner Milton McGregor’s willingness to hit back hard at federal prosecutors in this week’s filing could presage even more explosive allegations. Also, the sudden resignation of DOJ’s Public Integrity Section Deputy Chief Justin Shur shortly before his scheduled leadership of the McGregor retrial heightens confusion, at best, within DOJ’s anti-corruption unit. Known by the acronym “PIN,” it is led by Chief John "Jack" Smith.
Birmingham News / Al.com, Prosecutors in Alabama State House vote-buying case won't recall Sen. Scott Beason to the stand, Kim Chandler, Jan. 20, 2012. Prosecutors in the State House vote-buying case aren't going to put two wire-wearing legislators -- including a senator who referred to black casino patrons as "aborigines" -- back on the witness stand when the case goes to retrial, defense lawyers said. Federal prosecutors indicated in pretrial conversations that they do not intend to put Sen. Scott Beason, R-Gardendale, and former Rep. Ben Lewis, R-Dothan, on the witness stand in the second trial but, instead, will just play some of the tapes they made, several defense lawyers said. "They were such a key part in starting the investigation and a key part in the first trial. It's interesting now that the government is distancing themselves from them," said David McKnight, a lawyer representing lobbyist Tom Coker in the case.
Associated Press, Departure of lead prosecutor in bingo gambling case comes just days before retrial to start, Jan. 19, 2012. The departure of the lead prosecutor in Alabama's gambling corruption case has left the prosecution team having to shift duties less than two weeks before jury selection begins for the retrial. Justin Shur's resignation as deputy chief of the Justice Department's Public Integrity Section to join a Washington law firm, MoloLamken, was approved by the trial judge Thursday. The retrial of seven defendants starts Jan. 30 in Montgomery. Justice Department spokeswoman Laura Sweeney declined comment Thursday about who will be the lead prosecutor, but defense attorneys said it appears Kendall Day, another Justice Department attorney, is taking over the job. He would make the third chief prosecutor since the case began with indictments in October 2010 against casino owner Milton McGregor, four present and former state senators, and several others on charges accusing them of swapping campaign contributions for votes on pro-gambling legislation.
Justice Integrity Project, Feds Lose Big In Alabama Bribery Acquittals, Hung Jury, Andrew Kreig, Aug. 11, 2011. Federal prosecutors suffered one of their most remarkable setbacks nationally in decades Aug. 11 when an Alabama federal jury failed to convict any of nine defendants on any count in a massive gambling corruption case against state senators and those accused of trying to bribe them. The federal probe grew out of opposition to legalized gambling by the administration of former Republican Gov. Bob Riley, left, who departed from office in January after two terms.
Fox News / Associated Press, No convictions in Alabama gambling trial, Aug. 11, 2011. Federal prosecutors didn't get a single conviction in Alabama's gambling corruption trial Thursday when jurors acquitted or failed to reach a verdict on all the charges against the nine defendants, including Victoryland casino owner Milton McGregor and two sitting state senators.
Legal Schnauzer, Is Our Country Rotting From the Inside Out? Roger Shuler, Aug. 8, 2011. We are used to writing about dubious prosecutions from the George W. Bush era. But the electronic-bingo case is a production of the Barack Obama Justice Department, and that truly is unsettling. Not only are we rotting from the inside, we are rotting from both sides of the political aisle--from the Republicans and the Democrats. The case went to the jury over the weekend, and a verdict could come at any moment. Regardless of the outcome, the case has been emitting foul odors for weeks. A reasonable citizen might observe the strange proceedings and ask, "What in the name of Eric Holder is the U.S. Justice Department doing with my taxpayer dollars?"
Washington Post, Is it bribery or just politics? George F. Will, Feb. 12, 2012. All elected officials, and those who help finance elections in the expectation that certain promises will be kept — and everyone who cares about the rule of law — should hope the Supreme Court agrees to hear Don Siegelman’s appeal of his conviction. Until the court clarifies what constitutes quid pro quo political corruption, Americans engage in politics at their peril because prosecutors have dangerous discretion to criminalize politics....In 2009, a bipartisan amicus brief by 91 former state attorneys general urged the Supreme Court to use Siegelman’s case to enunciate a clear standard for establishing quid pro quo bribery. Today’s confusion and the resulting prosecutorial discretion chill the exercise of constitutional rights of political participation and can imprison people unjustly.
Young Turks, Obama Admin With Karl Rove Against Don Siegelman, Cenk Uygur, Feb. 20, 2012 (Video). Conservative columnist George Will thinks Democratic Alabama Governor Don Siegelman was unfairly convicted of bribery. Why does the Obama Administration?
Catching Our Attention
ABA (American Bar Association) Journal, DC Court of Appeals Disbars Lawyer for ‘Egregious’ Murder-Case Misconduct While a Federal Prosecutor, Martha Neil, March 8, 2012. Former assistant U.S. attorney G. Paul Howes was disbarred today by the Washington, D.C., Court of Appeals. It is the first time in at least 10 years that a lawyer anywhere in the country has been disbarred by judges over conduct as a federal prosecutor, USA Today reports. Howes misused $42,000 in vouchers he was supposed to give to witnesses for expenses related to their testimony in court, instead providing them as payments to informants' relatives and girlfriends in high-profile murder and gang cases. Once this came to light, sentences were substantially reduced in at least nine cases, says a three-judge panel in the court's written opinion (PDF). In addition to giving vouchers to individuals who weren't supposed to receive them, Howes "compounded this initial misconduct by failing to disclose the voucher payments to either the court or opposing counsel, pursuant to District of Columbia Rules of Professional Conduct Rule 3.8 (e), Brady v. Maryland, and Giglio v. United States, even though such payments were relevant to the jurors’ credibility determinations of key government witnesses’ testimony," the opinion continues. "Finally, respondent intentionally misrepresented to the court that such disclosures had been made."
The Guardian, LulzSec leader Sabu was working for us, says FBI, Charles Arthur, Dan Sabbagh and Sandra Laville, March 7, 2012. The world's most notorious computer hacker has been working as an informer for the FBI for at least the last six months, it emerged on Tuesday, providing information that has helped contribute to the charging of five others, including two Britons, for computer hacking offences. Hector Xavier Monsegur, an unemployed 28-year-old Puerto Rican living in New York, was unmasked as "Sabu", the leader of the LulzSec hacking group that has been behind a wave of cyber raids against American corporations including Rupert Murdoch's News Corporation, the intelligence consultancy Stratfor, British and American law enforcement bodies, and the Irish political party Fine Gael. It was revealed that he had been charged with 12 criminal counts of conspiracy to engage in computer hacking and other crimes last summer, crimes which carry a maximum sentence of 124 years and six months in prison. According to indictments filed in a Manhattan federal court, he secretly pleaded guilty on 15 August last year. Despite that, Sabu carried on with his aggressive online persona as the LulzSec "leader", with the father of two going so far as to deny online – the day after his secret guilty plea – that he had "snitched" on his friends.
Wayne Madsen Report, Justice Dept. prosecutor targeting whistle blowers and journalists has his own criminal history, Wayne Madsen, March 7, 2012 (Subscription required). William Welch II was the chief of the Justice Department’s Public Integrity Section. While the title of his former office -- public integrity -- implies that Welch is dedicated to fighting corruption in the government, in President Obama's and Attorney General Eric Holder's Orwellian world of "Newspeak," Welch is the chief inquisitor of government whistle blowers and journalists who have communicated with them. After committing ethical and legal violations in his investigation of the late Alaska Senator Ted Stevens, acts that resulted in criminal charges being dropped against Stevens and a criminal contempt of court investigation being opened against Welch, along with a Justice Department ethics probe, Welch continues to investigate national security whistle blowers. Welch has become a de facto special prosecutor, a modern-day Juan de Torquemada, responsible for pursuing government "leakers" and journalists. Welch's targets have included National Security Agency fraud whistle blower Thomas Drake. He also has his sights set on former CIA officer Jeffrey Sterling and James Risen, the New York Times national security correspondent who Welch believes communicated with Sterling. Risen and the Times are fighting a subpoena for Risen to answer Welch's questions before a grand jury. Previously quashed by U.S. Judge for the U.S. District Court for Eastern Virginia Louise Brinkema, the subpoena has been appealed by Welch and Holder to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia.
Sunlight Foundation, Abramoff: 'You've got to trust me,' Kathy Kiely, March 6, 2012. (National Press Club Photo at left by Noel St. John, portrayng Jack Abramoff and United Republic President Nick Penniman). Over the weekend, Jack Abramoff disputed one of our blog posts. Since the convicted former lobbyist neither responded to our call for comment before publication nor called us afterwards to point out what he said was our error, we decided to catch up with him Monday night at the National Press Club to ask a few questions. It was an intriguing evening that featured the disgraced ex-lobbyist trying to out-reform the reformers as well as a potentially explosive allegation that Abramoff had a potential business partner in the Washington press corps. The setting was a panel on campaign finance reform that drew more than 100 people, and that began with a moderator's plea for civility and a beefy security guard taking a conspicuous position at the front of the room. Abramoff appeared unruffled by the presence of a small group of Native Americans, there to represent tribes he bilked, staring implacably at him from the front row. (A court has ordered partial restitution of the more than $45 million in fees that Abramoff and business partner Michael Scanlon collected from casino-owning tribes.)
WMR, Convicted former GOP super-lobbyist denies past ties to DC call girl ring, Wayne Madsen, March 6, 2012 (Subscription required). Convicted former Republican super-lobbyist Jack Abramoff, who once regaled members of Congress with golf trips to Scotland, fancy meals at his downtown Washington restaurant, and $975 courtside tickets at Washington Wizards basketball games, denied he was ever involved in providing sex escorts for politicians or their staff members.
Wall Street Journal, Key Excerpts from Holder’s Speech on Targeted Killing, Joe Palazzolo, March 5, 2012. Attorney General Eric Holder defended the Obama administration’s use of lethal force on suspected terrorists in a speech this afternoon in Chicago. Holder spent a good portion of it explaining the administration’s legal rationale for targeting a U.S. citizen abroad, as it did in the operation that killed the New Mexico-born Anwar al-Awlaki, an alleged al-Qaeda operative in Yemen. Below are excerpts from his prepared remarks. "Our legal authority is not limited to the battlefields in Afghanistan....[I]t is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept....Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes."
Eric Holder, Murder is Legal, David Swanson, March 5, 2012. Attorney General Eric Holder on Monday explained why it's legal to murder people -- not to execute prisoners convicted of capital crimes, not to shoot someone in self-defense, not to fight on a battlefield in a war that is somehow legalized, but to target and kill an individual sitting on his sofa, with no charges, no arrest, no trial, no approval from a court, no approval from a legislature, no approval from we the people, and in fact no sharing of information with any institutions that are not the president. In reality, the 2001 authorization to use military force violates the Kellogg-Briand Pact, the UN Charter, and the U.S. Constitution. It dates to only 10 years ago. And it is already getting old, as it is becoming harder and harder to accuse people of involvement in the attacks of September 11, 2001. No international law recognizes secret global war without limitation in time or space. There is no long established tradition of this madness. There has never been any type of violence that somebody wouldn't call "defensive," but the traditional right to national military defense applies only to nations being attacked by other nations, and not in a mystical or ideological sense, but actually attacked in the geographic area formerly known as the nation.