Comments on: The honest services dog that didn’t bark in Paul Minor’s case

By: NMissCommentor » Paul Minor (but not the US) moves for rehearing in Fifth Circuit

Mon, 25 Jan 2010 18:08:12 +0000

[...] cases before the Supreme Court. Recall that I’d posted about that issue as a “dog that didn’t bark” in Minor’s briefing and the panel opinion. Here’s the footnote: The Supreme Court is [...]

By: Robert

Robert — Mon, 14 Dec 2009 18:12:54 +0000

Roam we were thrown for a loop. The Bush era D.O.J. did in fact push their B.S. on all of that department. And MS. got its share of that sh*t. Which is what it was. Bush took interest in the entire 5th, Heck ya’ll Bush probably has a house in Madison County behind that big fence. But then he wouldn’t be the only crook living there now, would he?

By: stephanie

stephanie — Mon, 14 Dec 2009 12:38:10 +0000

exactly somslawyer- i posted essentially the same thing in another thread- thanks for clearing that up

By: somslawyer

somslawyer — Mon, 14 Dec 2009 02:08:10 +0000

This passage from Schriro v. Arizona Dept. of Corrections, 542 US 348 (2004), encapsulates the issue well:

When a decision of this Court results in a "new rule," that rule applies to all criminal cases still pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, see Bousley v. United States, 523 U.S. 614, 620-621 (1998), as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish, see Saffle v. Parks, 494 U.S. 484, 494-495 (1990); Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion). Such rules apply retroactively because they "necessarily carry a significant risk that a defendant stands convicted of 'an act that the law does not make criminal'" or faces a punishment that the law cannot impose upon him. Bousley, supra, at 620 (quoting Davis v. United States, 411 U.S. 333, 346 (1974)). *** A decision that modifies the elements of an offense is normally substantive rather than procedural. New elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful or vice versa. See Bousley, 523 U.S., at 620-621.

It appears to me that a decision by the Supreme Court holding the statute under which one is convicted unconstitutional automatically entitles one to habeas corpus relief. So what that the defendant did not challenge the constitutionality of the statute in his own appeal? Unconstitutional is unconstitutional. To hold otherwise is to allow someone to be wrongfully convicted and denied redress.

By: Roam

Roam — Mon, 14 Dec 2009 00:05:19 +0000

check out what they did to this guy. Wow! its a true shame. see it at http://www.honestservicefraud.com

By: bellesouth

bellesouth — Sun, 13 Dec 2009 17:22:08 +0000

I’d be surprised if at Minor’s new sentencing hearing, if it is after the USSC overturns the honest services statute [if it does] that they sentence him to years in jail based on a law that would be now unconstitutional. Talk about honest services! How about the honest services on the part of these federal prosecutors?

By: NMC

NMC — Sun, 13 Dec 2009 16:35:40 +0000

Stephanie, the rules have changed a lot since the 70s– a mid-80s case called Teague holds that newly announced rules aren’t available in federal habeas. (I had a client whose death sentence was overturned because he was not proved to be the triggerman making the death sentence violate the 8th amendment; that result would have been different several years later). This rule was made statutory (and worse) by mid-90s legislation. So new rules aren’t available on habeas.

And substantive changes can still be waived, as noted in the two long comments I made above about waiver.

By: stephanie

stephanie — Sun, 13 Dec 2009 14:42:30 +0000

Substantive changes are retroactive- procedural changes are not- if the Supremes hold that the law is unconstitutional it is retroactive- that is a substantive change-

think of minors (not paul- chldren) being executeed, retarded people being executed, lopez gun cases, etc

By: Anderson

Anderson — Sun, 13 Dec 2009 14:05:46 +0000

Finally, I have trouble calling “failure to anticipate cutting edge thinking and changes in the law” malpractice.

Sure, but as you say, this issue was pretty widely discussed well before Minor filed his briefs.

I doubt it would support a real malpractice case, but it does make me wonder what the heck Minor’s counsel was thinking.

By: stephanie

stephanie — Sun, 13 Dec 2009 14:04:51 +0000

looks like most prosecutors thinnk the honest services statute is going to be ruled unconstituional- in Ill the prosecutors have announced they are going to seek a new indictment agaisnt Blogo b/c they realize good chance honest services statute is going to be stricked down- in Memphis the case agasint willie herenton is likely to be dropped (per commercial appeal) for the same reason

the commercial appeal quotes some law professors who say that in these cases unless the feds can prove a different underlying crime (say 666 bribery) then they will not bring these cases any longer. And in minor and scruggs, the “underlying” federal crime was 666 bribery- which we now know does apply b/c the circuit court does not receive federal money