I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Notes about Minor’s argument about what was missing from the instructions

In the immediate prior post, I described what I saw in the Minor case oral argument.  This post supplements that with some notes about what Minor’s brief said about the jury instructions at issue. This case is about these jury instruction issues and not the political issues that have been the focus of press reports.

Recall that Minor was tried twice, the first trial resulting in a hung jury.  Minor in his brief makes much of the fact that in the hung jury trial in 2005, “the court instructed the jury that bribery required a quid pro quo– a finding that Mr. Minor provided loan guarantees to the judge with a ‘corrupt intent’ and that the judges simultaneously received the loans with the ‘specific intent to take a bribe.’ At the 2007 trial, however, the court specifically refused to require any quid pro quo or mutual intent between Mr. Minor and the judges.”  Additionally, in 2005 the jury was told it could acquit “if it found that Mr. Minor provided the loan guarantees ‘out of friendship’ or ‘for a motive wholly unrelated to influence over official action’.”  That’s in the Minor principal brief at 26.

In the second trial, Minor submitted an instruction that the Government had to prove the thing of value was given and received “in order to influence or induce a specific official act” and that there had to be an “explicit promise… Vague expectations of some future benefit are not sufficient to make a payment a bribe.”   That’s in the brief at 42-43.  Instead the court gave this instruction:

…the government must prove… that the particular defendant entered into a corrupt agreement for Paul S. Minor to provide the particular judge with things of value specifically with the intent to influence the action or judgment of the judge on any question, matter, cause or proceeding which may be then or thereafter pending subject to the judge’s action or agreement.  To constitute the offense of offering a bribe, there need not be a mutual intent on the part of both the giver and the offeree or accepter of the bribe.

Brief at 44.  The last sentence is  where the instruction goes off the rails, according to Minor’s argument.  The brief also argues that this case is about a bribe, not a gratuity, and that is is the quid pro quo, the explicit exchange, that distinguishes the two.

For a related bribery statute, the Fifth Circuit has distinct pattern jury instructions for briber and bribee.  For briber, the pattern instruction requires the jury to find this:  “That the defendant did so corruptly with intent to influence an official act by the public official [persuade the public official to omit an act] [persuade the public official to do an act] in violation of his lawful duty.”  For the bribee, the pattern instruction requires the jury to find this:  “That the defendant did so corruptly in return for being influenced in his performance of an official act [persuaded to omit an act in violation of his official duty] [persuaded to do an act in violation of his official duty].”

It seems to me that this instruction, by delinking bargained for exchange, invites the jury to convict both briber and bribee if only one had the requisite corrupt intent.  It seems to me that to convict both, both the briber must have “corruptly intended to inflence” and the bribee must “corruptly accept with the intent to be influence” and this instruction with that last sentence may let the Government off the hook on that part of the requirement.

I’m not making a prediction here about who I think will win, but am pretty convinced that this jury instruction issue is a good one.

If you want to read through all 144 pages of Minor’s brief, here is the very large PDF.  When/if I can, I’ll note how this argument was answered by the Government.

18 comments to Notes about Minor’s argument about what was missing from the instructions

  • Anderson

    Yes, that’s always been my concern about the case — can’t convict with one instruction, rewrite it to lower the proof needed, and presto! conviction!

    But I don’t pretend to know whether the feds have law to support their jury instruction. Regardless, I kinda hope the 5th Cir. says this instruction is a step too far; lord knows what kind of precedent that would set.

    I mean, someone gives me a present, hoping I’ll be corrupted in his favor; I have no idea that’s his intent, and no corrupt intent in accepting; and suddenly I’m a felon? Oy.

  • Ben

    1. How did get Minor get to file a 144-page brief?

    2. How does CA7 look at these issues? Looks like Blago is about to find out. Are there any circuit splits that might shoehorn Minor into getting a writ of cert granted?

  • [...] P.S. Tom Freeland analyzes the legal issues in the Minor oral argument, and follows up. [...]

  • Curly

    Just a point worth noting …

    If someone, even a friend, gives you a “gift” of that size, you damn well know something is expected in return sometime in the future. To say you received the “gift” and didn’t have a clue otherwise is disingenuous to say the least. We are not talking about two tickets to the basketball game on Saturday night, and I don’t think this would set a precedent for anything of that nature.

    I think you are misreading the last line of the jury instruction. It is saying that the intent does not have to be mutual. In this case, that means that the briber may not have had intent, but the bribee may have accepted the bribe with the mindset that he was being corruptly influenced. I don’t think the last sentence means that the bribee can be convicted without intent or merely with the intent of the other party.

    Here’s an easier example that’s easier to see: An attorney is writing two checks out, one payable to his son for $20,000 so he can buy his first house, and a second check to Judge Smith as a campaign contribution for $20. He gets distracted and writes the checks for the wrong amounts. Judge Smith opens the mail and sees a check for $20,000 and deposits it thinking he will return the favor down the road. In this scenario, the briber would not be guilty but the Judge would. In the Minor case, both could be convicted separately, but based on their own intent.

    The instructions didn’t go off the rail, Mr. Minor just has good counsel and you all are biting.

  • Sorry, for my ignorance, but I don’t know how these things work. I read the original quote in the referenced pdf and it sounded like the first part of the instruction applies to the judges and Minor, and the second part applies to Minor alone.

    But, I like their it wasn’t bribery, it was a gratuity argument. Is that like saying “No, I didn’t sell 100 lbs of pot one time, I sold 10 lbs 10 times”.

  • NMC

    Curly wrote: “I think you are misreading the last line of the jury instruction. ”

    Talk to Abbe Lowell, not me, Curly. I’m trying to describe the argument he’s making, and I think you’re smart enough to tell that. But maybe not; you wrote: “Mr. Minor just has good counsel and you all are biting.”

    Who is it exactly you’re talking to here?

  • Alan from YallPolitics

    Though certainly not a lawyer, I get the legal arguments. It seems a bit like splitting hairs to me, but that’s what lawyers often do.

    Tom, knowing what you know about the facts of the case . . . about the lack of disclosure to defendants when a plaintiff’s lawyer had strung along huge loans and held them over the judges head “as a friend” . . . about falsifying notes and getting strawmen to pay off the loans to hide his tracks . . . here’s my question.

    Would this conduct, as described in the governments brief and which there’s a ton of testimony and proof of, get Minor, Teel and Whitfield disbarred? In other words, was it wrong? Forget the criminal aspect for a moment. Have these people at least violated the ethical standards of being a lawyer?

    I would contend they have (clearly), and I am sure as hell hoping you feel the same.

    The point of the exercise is that so many of these people are saying that these were wrongly prosecuted and wrongly instructed, etc. However, they did some just unforgivable stuff in my book.

    Your thoughts?

  • NMC

    Alan, here’s some thoughts:

    1) If a lawyer gives a big benefit to a judge, who sits on the lawyer’s cases,and the judge doesn’t recuse himself from the lawyer’s cases and no one discloses the big benefit to opposing counsel or opposing client, that is wrong and unethical. I’m understanding that’s what Paul Minor did here. The non-disclosure, non-recusal stinks in a large way. Without the element of the exchange, that alone may not be bribery, but it’s extraordinarily wrong. If the lawyer and the judge are such friends (one of Minor’s explanations) that this is a normal interrelation between them, then the judge should just sit out the lawyer’s cases. Not doing so is wrong. Both lawyer and judge should be subjected to serious professional consequences for the combination of loan and concealment.

    2) There are elements of this (the efforts Minor made to launder the loans and cover them up, which went beyond mere nondisclosure) that show guilty knowledge and that aren’t getting reported.

    3) 1 and 2 don’t undercut that I think the jury should be properly instructed on an exchange. I’m not fully convinced they were not so instructed– my explanation in the post above was my gloss on Minor’s lawyer’s argument, not really my own opinion. I’ve got to reread the government’s brief and look a little more at the instructions to be sure about my own view of whether there was legal error.

  • Alan from YallPolitics

    That’s about what I’d figure you’d say, and I agree. But here’s the deal. Minor and his paid PR machine are trying to make this about Karl Rove and jury instructions and they’ve done a pretty good job of it. No one else, it seems, is going through the analysis of how wrong the stuff he did (that’s really not in dispute) was.

    For Minor to go to the lengths that he did to hide is actions shows everyone how guilty he thought he was.

    I’m all about fair trials. I am all about the system working like it’s supposed to. But this guy manipulated judges with money (same as Scruggs), and that’s my bottom line. So, selective prosecution, my ass.

  • Mikey's mom

    Does anyone believe that if Teel and or Whitfield were just some guys on the street or just some good ole friends of Minor’s that Minor would be guaranteeing the loans then funneling money around to make it look like he wasn’t repaying the loans when he in fact was? The loans made the judgeships of these two possible in that without the loans presumably the candidates could not have become judges in the first place. The judges should have recused but could not out of fear that Minor would quit paying. Wouldn’t the same fear exist if the judges dared to rule against Minor?

  • Tim

    All good points, I have always said if Paul had not gone to such great extent to cover up after the fact, he would have had a ethical problem but no crime. Afterall he guaranteed the loans, and he had to fulfill his contract (personal guarantee) to the bank. Regardless all three had a duty to disclose to opposing counsel the existence of a monetary relationship between them.

    As to being friends with a Judge in our small communities we are all “friends” with the Judges, heck we been practicing law with them for many years before they were elected judges. Sometimes they rule against me and sometimes for me, I may disagree with them, but I expect no more no less, than simply a fair consideration. I don’t believe a Judge should recuse himself simply bec he may be friends with one or both sides’ counsel, which is usually the case. If that’s the rule then none of the Judges would be able to hear our cases, we would always have to appoint from outside our communities. Its a difficult issue, but it truly depends on the honesty of all sides, Judges and Lawyers, alike.

  • Anderson

    “the efforts Minor made to launder the loans and cover them up, which went beyond mere nondisclosure”

    FWIW, a friend who’s been in cases w/ Minor (on the other side) suspects that Minor is the kind of person who’s just too clever for his own good — in this instance, so clever that he takes an otherwise legal (if shady) occurrence and decides he’s so clever, he’s going to razzle-dazzle and cover it up.

    Of course, that’s a jury issue. And probably not an argument his counsel would be likely to make.

  • Curly

    Tom, I was responding to Anderson’s first post above, regarding potential to convict without intent.

  • a friend of the law

    He made the gifts and loans and kept them secret from those who could be affected. He went to great lengths to hide the truth. He received favorable rulings from those who received the gifts/loans.

    IF the conviction gets overturned, then there is NO DOUBT that our MS laws need to be changed ASAP to make this scenario ILLEGAL –no prid quo pro should be necessary. These type of practices have NO PLACE in our legal system — NONE. The appearance of propriety is absolutely crucial to maintaining public confidence in our legal system. This type of bullshit engaged in by Minor and these Judges destroys any such confidence and severely hurts our profession and legal system.

    IMO, he should be publicly flogged.

  • RazorRedux

    I agree with AFOTL’s above assessment, especially the “…absolutely crucial to maintaining public confidence in our legal system…” only taking exception of the last part: privately would suffice.

    There is NO way that guaranteeing the house mortgage can possibly be construed as a “campaign donation.” My 14 yo knows better than that cuz he said so.

  • Tim

    Agree with AFOTL also, although RazorRedux, just so its accurate I don’t think he was “guaranteeing the house mortgage”. He guaranteed the loan and Whitfield used it to buy a house no mortgage involved I don’t think. A difference without a difference of course but accurate.

    Bottom line, there is no way that what Minor, Whitfield and Teel did was ethical without disclosure and serious issue of recusal no question about that. Seems Jury Instruction has a problem to me having read the brief. Why the change from 1st Trial to the 2nd. Also the Judge made substantial changes in evidentiary rulings that were consistent with the “new” jury instruction.

    The Fifth Circuit will find a way to affirm i. e. the jury was adequately instructed by ALL the jury instructions given, etc. etc.

  • Madison

    I agree with Tim in that the Fifth Circuit will find a way to affirm. However, in light of the new microscope the Justice Department is under I think it make for an interesting discussion. This is in regards to the fact that Holder is facing calls to overhaul the public integrity section of the Justice Department. A former federal prosecutor,Joseph diGenova, was recently quoted as saying that the actions of the prosecutors in Ted Stevens trial were “in essence, a framing of a senator. That doesn’t mean he’s pure as the driven snow, but they were going to convict him no matter what.” (http://apnews.myway.com/article/20090404/D97BLLF81.html) Therefore, could the change in the jury instructions be seen in the same light. Could changing the instructions be a way to convict Paul “no matter what”?

  • peregrine

    Do you think that the ruling by the Supreme Court in June 2009 requiring Judges to excuse themselves from cases assigned to their court(W Va.) whenever one of the attorney’s involved has made large contributions to their campaigns, have any bearing on this case? Didn’t one of the judges in the Minor case remark that Miss. legal administration would not allow any judge to excuse himself in any case assigned to his court?

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