Due Process

The war against public corruption took one on the chin this week as prosecutors lost their go-to weapon in the prosecution of suspected corrupt politicians and greedy corporate CEO’s. The “Honest Services” mail fraud statute, 18 United States Code, section 1346, was ruled unconstitutional as it applied in cases other than those that involved direct bribery or kickback schemes. “Honest services” mail fraud added a wide dimension to the universe of actions that violate the already broad proscriptions of federal mail fraud law. Essentially, for those of you who are not crooked pols or have not served on a federal jury, mail fraud is the use of the mails to aid a scheme or artifice to defraud another of something tangible; for example, money, stocks or other types of property. Get involved in some fraudulent scheme and you are probably violating a state law somewhere. Put a stamp on a letter in furtherance of the scheme and drop it at the Post Office and you are now a potential federal felon.

Over many years Congress has attempted to ease the prosecution of public corruption cases by trying to recognize that citizens have an intangible right to the honest services of those whom they elect– certainly, a laudable effort. The problem is that laws need to provide specific notice of the conduct they prohibit. The first attempt at expanding mail fraud to include “honest services” was ruled unconstitutional as overly broad and vague by the Supreme Court. Congress tried again. The amended law produced substantial debate by legal scholars and judges. The Supremes were asked to weigh in again.

After I handled a major public corruption trial, one in which I had the opportunity to study “honest services” mail fraud in great detail, my buddy, Andy Thibault the journalist, approached me about collaborating on a book detailing public corruption cases. This was not going to be some tell-all about my client; rather we wanted to chronicle what appeared to be a growing incidence of such prosecutions. In particular we planned to comment on the use of RICO (Racketeering) and Mail Fraud in corruption cases. The problem, however, was that there is truly an epidemic of corruption cases. Many were warranted, and others were witch hunts. It would have morphed into an encyclopedia, and the idea ended up in the pile of “things to do someday!”

So why shouldn’t we demand honest services from our elected officials? We should; but laws that prescribe and punish conduct have to be narrow and specific. The risk from a vague law is that it sweeps into its ambit honest people who never intended to commit crimes. As written, the “honest services” statute also applied to conflict of interest situations. While it is laudable to require that pols avoid possible conflicts of interest, in the absence of a specific quid pro quo (something bargained for and given in exchange), public officials should not be jailed for such conflicts. In the post-Watergate era, journalists and the electorate are the better tools to weed out those whose judgment is compromised by a conflict of interest.

Public corruption is insidious; but, using vague laws to combat it casts too wide a net. Now the issue that will occupy federal courts will be who gets the benefit of this new ruling. Do we open the jails and release dozens of corrupt public officials and corporate magnates? That is unlikely. The law will apply to those who have raised the issue already in their pending cases or on their appeals. For those whose convictions were affirmed and whose appeals have ended, they will remain convicted “honest services” felons.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

It was October 14, 1967 and I was a sophomore at the University of Notre Dame. My girlfriend (now wife of 40+years) Kathy and I were sitting int he first row in the corner of the end zone. Beyond the opposing goalposts loomed the mosaic dubbed, “Touchdown Jesus” that adorned ND’s library. From that vantage point we watched a Heisman hopeful amass 160 yards, scoring 3 touchdowns right in front of us as O.J. Simpson and the U.S.C. Trojans beat the favored Irish 24-7. S.C. came into the game ranked #1 but the Irish were favored in that contest. Simpson was the “Juice” that changed those betting odds.

O.J. continued to run for daylight through a storied football career and a stint as an actor in several B movies. His slippery running style was on display in 1994 as live video documented his slow speed chase from police in the white Jeep, as they sought to arrest him folowing the murders of his wife, Nicole, and Ronald Goldman. Once again Simpson dodged would-be tacklers, Marcia Clark and Christopher Darden, in his first criminal trial.

Justice finally knocked Simpson out of bounds, short of the goal line, when his botched attempt to “reclaim” his property at gunpoint in Las Vegas resulted in convictions for kidnapping and robbery. Now a battered old man in his 60′s Simpson has hit the newstands once again. This week his attorney appeared before the Nevada Supreme Court to argue for a reversal of his 2008 convictions. One compelling issue being raised is the attitude and demeanor of Simpson’s trial judge, Jackie Glass. Attorney Yale Galanter wants the Supreme Court to throw the penalty flag at Judge Glass, as he argued that her treatment of him handcuffed the defense. Galanter argued that Glass repeatedly chastised him in front of the jury and was more interested in “doing it quickly rather than doing it right.” Not to beat the football analogy too far into the ground, the Justices even went to the videotape– a judicial instant replay. They watched taped portions of the trial that Galanter claimed highlighted the improper judicial demeanor of the judge.

The Supreme Court Justices remarked that her treatment appeared to be particularly “rough.” It remains to be seen whether that intrusion by the judge into the trial process will lead to a reversal. Judges hold particular unspoken power in criminal trials. In the absence of videotape the typed transcript of the court record does not reflect gestures or grimaces by the trial judge. Our newer generation of judges rarely display their attitudes or opinions when a jury is hearing evidence. But that was not always the case. I recall as a young lawyer appearing before several crusty old jurists who made no effort to hide their distaste for the defendant. In one particularly egregious display I recall a now long dead N.Y. federal judge who was sitting by designation in a federal case I tried with my dad. The old codger was in the habit of turning his back to a defense witness and rolling his chair to the opposite side of the lengthy bench. He didn’t have to say anything but his actions shouted, “Do you really believe this B.S.!”

Judges are human and are entitled to formulate their own opinions of lawyers and litigants. I am sure that it must be frustrating to preside over a trial and observe less than stellar lawyering. Recalcitrant and disruptive defendants rightfully try their patience. But the robe carries with it the requirement to strive for neutrality. The Code of Judicial Conduct in this state requires it. The Code requires that a judge is responsible to maintain order and decorum and discharge responsibilities in an even handed manner. Judges are even subject to censure by the Judicial Review Council if they offend the dictates of the Code.

If Judge Glass went too far, the Juice may get another chance to score.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Rod Blagojevich is finally on the hot seat as his criminal trial got underway yesterday with opening statements. Not one to be short on opinions or sound bites, Blago was told by the judge, no more press statements during the trial. Since his indictment and banishment from public office Blago has been the antithesis of the typical criminal defendant. No B roll of Blago running from the cameras with his trench coat over his head. No shots of the former Gov pushing some aggressive cameraman’s lens out of his face. No, Rod made a concerted effort to be seen and heard whenever he could, including a stint on Donald Trump’s Celebrity Apprentice.. Heck, some wag has even coined the phrase Blagoshpere referring to the barrage of Blago quotes and statements that are everywhere.

Actually if the new Blago show is a success in Chicago’s federal court it may spawn a new Trump spinoff, Celebrity Indictments. There are certainly plenty of candidates throughout the country. Public corruption indictments are spreading faster than BP’s oil spill. Rod, of course, would be the logical choice as the co-host.

Jury selection in any notorious criminal case is problematic. The more pre-trial publicity the more difficult it is to empanel a jury with no prior knowledge of the case or the accused. The Constitution guarantees the right to a fair trial and a trial before an impartial jury. In this age of instant communication and constant connectivity, with Twitter and smartphones, iPads and laptops, everyone appears to be connected and wired in at all times.

As behooves his very public personna, Blago has selected a firebrand of an attorney, Sam Adam, Jr. Adam is a 37 year old who boasts an impressive win-loss record of 60-5 at a tender age. He is described as theatrical with a touch of revivalist preacher. His histrionics have already earned him a rebuke from the staid federal trial judge who warned him that it may be okay for him to yell at the jury in his fiery opening and closing statements but he will not be allowed to direct those tirades at any witness. The judge told him he would sit him down if he attempted that. My money says Adam won’t back down and there will be some fireworks before this one ends. Sam Jr. is joined by his dad, Sam Adam, Sr.

The younger Adam apparently has little experience in the federal court, despite an impressive number of verdicts in his home state court. What is even more remarkable is that he has probably only been practicing for about 12 years (the average starting age out of law school is 25). Doing the math, 65 verdicts in 12 years is a whopping 5-6 trials per year. That is a career for most lawyers. Jury trials are rare with all of the pre-trial diversionary programs and the emphasis on plea negotiations. Most jurisdictions cannot conduct trials in the majority of cases.

So the stage is set. Against the backdrop of a staid and stuffy federal courtroom the combination of Blago and Adam should provide some great theater. Whether it is enough to do more than merely entertain the 12 jurors, and produce an acquittal is worth watching as this one heats up.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com