by Glynn Wilson
Former Alabama Governor Don Siegelman and HealthSouth founder Richard Scrushy are asking the full 12-judge Eleventh U.S. Circuit Court of Appeals in Atlanta to rehear the appeal in their political prosecution primarily on the basis that the alleged quid pro quo bribery claimed in the case was based on evidence of an “implied” agreement, not an “explicit” agreement.
“We filed today asking the 11th Circuit to rehear my case because we believe if their ruling, if left to stand, prosecutors will be able to pick and choose their targets among contributors and elected officials,” Siegelman said.
The U.S. Supreme Court’s ruling in the McCormick case made it clear, he says, that in this area of First Amendment rights, before a jury could convict an elected official or a contributor on bribery there had to be an “explicit” not an “implied” agreement.
“My three judge panel has allowed my conviction and my seven and a half year sentence to stand basically by defining ‘explicit’ to be something that can be inferred or implied by the jury form the mind and actions of actors,” he said.
“Yes, this is about my personal freedom but it is even more important this First Amendment issue clarified so the law wont be a trap for the unwary,” he said, citing Thomas Jefferson, who once wrote: “Whenever the people see things that are wrong the people can be relied upon to set those wrongs to right.”
“We need to get a message to the U.S.Department of Justice to help get this wrong set right,” he said. “If the three judge panel’s new definition changing an ‘explicit’ to an ‘implied’ quid pro quo is allowed to stand not only am I up the creek without a paddle but federal prosecutors will be able to pick and choose contributors and elected officials seeking convictions based solely on a jury’s view of what was in the minds of the elected official not based on any express communication.”
“After having gone through this unbelievable episode in our lives,” he said, “I had an opportunity to re-read The Federal Prosecutor, a speech by the U.S. Attorney General at the time, Robert Jackson. Just read the first paragraph and you’ll get a flavor of what my family has been through and what I ask you to help guard against.”
Siegelman said 11 of the 12 judges decide whether a full court hearing is justified. He said three of the judges have recused themselves in this case, including Republican Bush appointee William Pryor, the former attorney general of Alabama. That leaves 8 judges to make the decision. Three of those have already voted to uphold the conviction, so he says it will require five of five votes to order a new hearing.
Legal experts say the full appeals panel rarely overturns three judge panel decisions en banc, the legal term for the full court. So this is likely headed for the U.S. Supreme Court. Whether they will agree to hear the case is anybody’s guess.
You can read the appeal motion filed in the case here and the appendix here.
