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Cross Posted at Legal Schnauzer

How bad was the recent appellate ruling that upheld the convictions of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy?

So bad that even a lawyer publicly criticized it.

Experience has taught me that some lawyers will, in private, admit that our justice system is a mess. Some, in hushed tones, will even tell you about specific lawyers they know to be shysters and judges they know to be corrupt.

But a lawyer criticize the system in a public forum? That's real man bites dog stuff.

I'm guessing there are several reasons for that. One, most lawyers make a far better living in the legal profession than they would make in another field of endeavor--say, journalism. Two, angry judges can take quite a toll on a lawyer and his clients in the courtroom--over time that can cause the bottom line of a law practice to take a serious hit. And three, I suspect state bar associations have interesting ways of making life miserable for a lawyer who dares to publicly pull the mask off the legal beast.

So there are many factors that discourage lawyers from rocking the professional boat. But Julian McPhillips, a prominent attorney in Montgomery, Alabama, was so disgusted by the ruling on the Siegelman/Scrushy appeal that he decided to rock the boat anyway--at least a little bit.

Some might say that McPhillips is not an objective observer in this case. He is a longtime Democrat, running for the U.S. Senate in 2002, and he has represented Richard Scrushy. But McPhillips makes a number of compelling points about the ruling from the U.S. 11th Circuit Court of Appeals. In the end, he actually goes easy on the court.

Given the all-Republican makeup of the three-judge panel, we've noted that the Siegelman team probably expected to be cheated. McPhillips apparently was thinking along the same lines:

To say the court split hairs, bent over backward to reach ill-founded conclusions and ignored important issues is a vast understatement.

The court also established a bad precedent in glossing over out-of-court juror e-mails, which revealed great bias of the jurors involved. The trial court dismissed these e-mails without investigation, and the 11th Circuit ignored this oversight.

McPhillips says the appellate court got it wrong on the central issue in the Siegelman case: Was there an explicit quid pro quo, a something-for-something agreement, as required by law?

The 11th Circuit also split hairs in distinguishing the difference between "explicit" and "express" on the quid pro quo issue. That is, was there enough evidence of "you scratch my back and I'll scratch yours?" The court said there was sufficient circumstantial evidence, primarily the contribution itself.

Yet, it is undisputed that former Siegelman aide Nick Bailey, a government witness, never witnessed a single conversation between Siegelman and Scrushy indicating agreement for a Certificate of Need Board seat in return for a lottery fund contribution. Remember, also, the goal of the lottery was to promote public education, not the election of Siegelman.

Even the 11th Circuit was strained, bending over backward, to explain the difference between the alleged Siegelman-Scrushy bribery and the widespread practice of a politician doing a favor for a contributor.

McPhillips points out that neither Siegelman nor Scrushy were newbies to the area of political contributions. So it's hard to figure why either would knowingly violate the law:

It is significant that Siegelman was a former Alabama secretary of state, attorney general, lieutenant governor and governor. He was no bumbling novice. Through his 20 years of government service, he learned well the parameters of permissible behavior. He knew well what was kosher in the murky field of contributions and appointments. Neither Siegelman nor Scrushy possessed the most remote idea that what they were doing was illegal--or that what they were convicted of was illegal.

Who is the biggest loser from the 11th Circuit's warped reasoning? McPhillips has some disquieting thoughts on that subject:

Sadly, the biggest casualty resulting from this conviction and affirmation by the 11th Circuit is the Alabama and national political system. In the past, children yearned to be governor of a state or president of the United States. College-age students found excitement in the political process and saw political power as a means to achieve worthy results, such as improved education for all students, regardless of station in life.

Today, with this conviction and affirmation, few people with sense would want to be governor, recognizing that, while politics is the vehicle for election, politics also makes you a target for prosecution for campaign contributions you receive. The bigger you are politically, the more you are "big game." Regrettably, but undoubtedly, our judicial and political systems are broken.

For another take on the Siegelman appellate ruling, check out Glynn Wilson's analysis at Locust Fork News-Journal.

As for McPhillips, I applaud his willingness to stand up and criticize a clearly botched ruling. But because he's a lawyer, he still has to pull his punches somewhat.

I'm not a lawyer, and I don't have to pull any punches. We've been studying the 68-page ruling and will present a detailed critique in the coming days.

Our conclusion? The three judges on the 11th-Circuit panel pulled a colossal screw job. And we will show you exactly how they did it.

Originally posted to RogerShuler on Mon Mar 23, 2009 at 06:47 PM PDT.

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