The Virtue of Virtue in a Venal World (apologies to Prof. Smith)

I am currently studying in law school, as the ten people who read this might know, and I'm right now taking a class on corporate scandal and reform - essentially, how Enron happened and how Sarbanes-Oxley and other responses purports to address and actually addresses the Enron problems.

The point of that is this: my professor wrote an article with the same title as this post, talking about, essentially, how law can only go so far in creating an environment of investor and consumer confidence in capital markets - that at some point, it is necessary to admit that we are dependent on the integrity of actors both at the corporate level and at the market level.

And he's right. The role of law in preventing fraud and corruption is limited. Ultimately, the best role that law can play is that of deterrent and enforcement - it cannot proactively create an environment in which actors don't WANT to cheat; merely one where they choose not to.

But there's a problem. When the enforcement of the laws is arbitrary and capricious; when it is based on a proposition other than the question of whether a law was actually violated; when law takes a back seat to power; then the entire scheme breaks down. At that point, what becomes clear is that law depends not on what you do, but who you are.

In case you were wondering, the word "privilege" comes from two Latin roots that translate literally as "private law." And that is what happens when Justice peeks from under her blindfold; those who are privileged realize that they will not be punished. And so they act in accordance with that realization. Some (those with integrity) will not do wrong; others may.

Which brings us to Paul Minor and his judicial co-defendants. A little bit of background might be in order. Briefly (the long version in the link):

Three prominent Democrats and a Republican who supported individual plaintiffs in tort cases were indicted on federal corruption charges (bribery, honest-services mail fraud, and some others). They were tried. One (the Republican, Mississippi Supreme Court Justice Oliver Diaz) was acquitted on all charges, the other three were acquitted on some charges and the jury hung on others. In a second trial for the hung charges, the three Democrats, trial lawyer Paul Minor and judges Wes Teel and John Whitfield, were convicted. Now, in all fairness, a good friend of my family once told me of Oliver Diaz that "he didn't need to be bought," but that is neither here nor there. I am not familiar yet with the relevant background law, but I'm going to get up to speed (in my "spare time"). But I do know this, first of all:

Legal Schnauzer has incorrectly stated the holding of U.S. v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993), where they say that the fact that bribery involves an intent to affect a quid-pro-qou. Don't get me wrong; that is, in fact, exactly what Mariano holds. But the case is not directly on point. In that case, the defendants had actually intended to affect a quid-pro-quo. Thus, in this case, the holding is merely persuasive authority, with its persuasive value reduced by the fact that is not binding in Judge Wingate.

What, you didn't know that? If a judge has no power to force a lower court to follow her rulings, that judge's opinions cannot bind a lower court. Thus, Judge Wingate was bound only by United States Supreme Court and Fifth Circuit precedent; neither of which have passed on this issue.

In addition, Legal Schnauzer has also misunderstood the conviction. Let me rephrase that; the bribery charge includes a lesser included offense of giving an illegal gratuity, 18 U.S.C. Sec. 201(c)(1)(A). This offense is defined as giving something of value “for or because of any official act performed or to be performed by such public official.” To be fair, this particular statute arguably applies only to federal officials, Sec. 201(a). But, and again, I do not have all the facts yet, it is possible that the jury instruction that LS finds so offensive referred to the illegal gratuity lesser included charge, which would be perfectly all right. And unfortunately for Minor and his codefendants, the illegal gratuity statute does not require any sort of quid-pro-quo.

Also unfortunately for them, despite Judge Wingate's apparent confusion regarding the rules of evidence (again, I don't know and I am loathe to assume that a federal judge got it wrong), it as a canon of appellate review in this country that an appellate court will affirm a lower court's decision for any reason in the record, even ones that the lower court did not follow. In other words, as long as you get the right answer, the method you use to get there doesn't matter.

As to Judge Wingate's evidentiary rulings, even assuming they are erroneous, I suspect that the Fifth Circuit will find them to be harmless error; given that the evidence the expert witnesses would have provided was irrelevant to the lesser included charge, I suspect that the Fifth Circuit will find that even with that testimony, the jury could have found the defendants guilty. Therefore, even if the result is ultimately unjust, I doubt it will be disturbed.

Were these four men the victims of a "partisan witch hunt?" I suppose it's possible. But in a cursory review of the file, I'm not convinced of any sort of error that is reversible upon appellate review. And there is certainly no evidence in the record of partisanship influencing the decision. The best you can offer on that is Judge Wingate's evidentiary rulings and the jury instruction; and as I've shown, it is at worst equally plausible that the rulings were at least arguably correct.

But there's a larger issue here. What does it say about our justice system that someone can put together a patchwork of actions and convince themselves that there really is some sort of partisan witch hunt going on? What has happened when officeholders on trial for corruption can claim that their opponents are attempting to bring them down, and have it actually be plausible?

Needless to say, I am appalled by the fact that reasonable people can even argue about this question. Because I admit, there are things about the trial that seem fishy. But what is appalling is not that there were errors made; courts make errors all the time, even when the law is settled. A judge misreads the law or just never understood it, an ambiguous decision is poorly interpreted, or the lawyers screw up and the judge doesn't catch it, and that's why G-d made appellate courts. What is frightening is that Republicans who put Party over Country have so confused Americans of every race and creed, have so utterly bamboozled us, that we think it's normal for appointed officials to play partisan games with their supposedly neutral offices.

The most important thing that can happen in the election this November and next November is for Americans to stand up, together, and repudiate the idea that officeholders should be looking for ways to perform their duties in a manner that advances their political ideology. I had hoped we had moved past this in the Civil Service Reform battles of the late 19th century, but apparently we have not.

This is the single, overarching issue; it's a simple return back to the culture of corruption. How can we trust any officeholder that was complicit in the development of this system, where we can believe that our judges aren't impartial and nautral? And that's the most frightening thing:

That we can believe that this is no longer a nation of laws, but of men.