We are all captives of the picture in our head… – so, whose head pictured honest-services fraud?

Prosecutors have used the following subterfuge with alarming success: Threaten a terrified white-collar defendant with a long jail term in a maximum-security prison with violent offenders, unless he or she pleads guilty to honest-services fraud. In return, the defendant will receive a much-reduced sentence in a relatively cushy federal prison camp.

In this way, prosecutors are guaranteed a conviction. They also don’t have to run the risk of a trial by jury. Even judges have become irrelevant, because they essentially rubberstamp the prison sentence the prosecutors recommend. Cagily, prosecutors, in effect, have usurped the entire legal process for themselves.

Although the columnist (h/t Huffington Post) used far fewer words, his take on honest-services fraud is a summary of the Motion to Dismiss the Indictment for Outrageous Government Conduct filed in USA v Scruggs – which, in turn, brought to mind the Lippman quote:

We are all captives of the picture in our head – our belief that the world we have experienced is the world that really exists.

Unflattering pictures of Dick Scruggs and Paul Minor held some very powerful heads captive.  All it took was for each to commit an ethical breach so serious that they were charged with the crime of honest-services fraud.  Although Minor was convicted while Scruggs eventually entered a negotiated plea, the end result was the same and both men are now confined in federal prison.

There is no denying that both men committed horrible wrongs.  In fact, Scruggs’ attorney, Cal Mayo, made that very point  at a hearing before Judge Coleman in Jones v Scruggs, reported in the SLABBED post Judge Lackey spilled the beans; Cal Mayo provided the context:

Mayo: Without dispute a serious ethical lapse occurred in March of last year but certainly no intent to bribe a judge. No intent to engage in criminal conduct. It was wrong but not criminal. It was the federal government’s intent to pull the matter further along. There was no quid pro quo no offer to pay money. Not until the demand for money that criminal conduct occurred. Even with that there was no evidence Scruggs knew anything about it.

Judge: How do you account for the statements in the guilty pleas that a meeting took place in March where Mr. Scruggs was involved.

Mayo: question was whether there was an effort in March to corruptly influence Judge Lackey. Pleas: That there was a conspiracy later on. Mr. Scruggs said he joined the conspiracy later on. Nothing shows intent to commit a crime back in March. Judge Lackey’s testimony puts it in clear context. An ethical lapse clearly. Only in September that Judge Lackey made a request for the money.

Judge: You are arguing entrapment are you not.

Mayo: Not arguing that, not the criminal case, trying to put this back in context.

Despite Mayo not arguing entrapment, it was clearly the picture in the heads of the Scruggs’ defendants.  Others can explain why the Scruggs defense did not make the claim far better than I; but, as I recall, it was because entrapment required an admission of guilt the defendants were unwilling to make at the time.

However, it was never the picture in the heads of the Scruggs’ defendants that mattered.  The picture in the head of the federal prosecutors was controlling.  If such were possible, it was so controlling that one could argue it had been photocopied and plastered in the head of Judge Biggers.

Prosecutors have used the following subterfuge with alarming success: Threaten a terrified white-collar defendant with a long jail term in a maximum-security prison with violent offenders, unless he or she pleads guilty to honest-services fraud. In return, the defendant will receive a much-reduced sentence in a relatively cushy federal prison camp.

What columnist Chaftez called the “subterfuge” was a script for the pleas negotiated first with Balducci and then with Langston and Patterson.  Anyone who doubts it played with Patterson should recall remarks in the blogosphere claiming he seemed confused about what he was pleading, so much so that his plea hearing was comical.  The subsequent plea of Scruggs in USA v Delaughter makes one wonder if the subterfuge also continues after confinement.  Delaughter’s plea to lying to the FBI is one to revisit another day as the claimed federal jurisdiction is also untrue.

In this way, prosecutors are guaranteed a conviction. They also don’t have to run the risk of a trial by jury. Even judges have become irrelevant, because they essentially rubberstamp the prison sentence the prosecutors recommend. Cagily, prosecutors, in effect, have usurped the entire legal process for themselves.

If I had to guess, I’d say a lot of rubber stamps were tossed after word of the Fifth Circuit’s ruling on federal jurisdiction in USA v Minor.  Views about the impact of that ruling and the extent it will or will not reduce the sentences of Minor and his co-defendants vary.  However, Chafetz makes some relevant points:

As Justice Antonin Scalia recently noted: , “Without some coherent limiting principle to define what ‘the intangible right of honest services’ is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

With certainty, the floodgates will now open. All convicted of honest-services fraud–especially those still in prison…–will petition the court that sentenced them to vacate the judgment and free them at once.

Given the apparent illegitimacy of this law–based on the deep skepticism expressed by the Supreme Court–defense attorneys will argue that their clients should be released from prison forthwith so that they do not suffer any further harm under this unconstitutional law.

Indeed, a judge in good conscience should sua sponte release…from prison at once, pending the high court’s decision.

Could it really be that simple? Maybe so; but, it would have been far more simple if Scruggs and Minor had just said no and Delaughter hadn’t said a word without an attorney!

Humanity is governed by minorities, seldom or never by majorities. It suppresses its feelings and its beliefs and follows the handful that makes the most noise. Sometimes the noisy handful is right, sometimes wrong, but no matter, the crowd follows it.  You furnish the pictures and I’ll furnish the war.