No High Fives for Jefferson Prosecutors yet!

Thursday, November 19, 2009

New Orleans, Louisiana

WILL BOGUS CHARGES GIVE BILL JEFFERSON

A NEW TRIAL?

Former New Orleans Congressman Bill Jefferson got a thirteen year sentence and will soon be heading to jail.  Ninety thousand dollars in his freezer?  Has to be a “slam dunk” for the prosecutors, although Jefferson says he will appeal.  Appeal?  Didn’t they catch him red handed ? Tainted cash passed on by the F.B.I.?  Well, not so fast.  Ole “˜Dollar Bill just might have some legitimate issues on which to appeal whether the feds like it or not.

Everyone who followed the Jefferson investigation and trial were aghast over the cold cash in his freezer. Anyone betting would wager that this charge alone would bring Jefferson down.  He was specifically charged with violating the Foreign Corrupt Practices Act by supposedly trying to bribe a Nigerian official. And even though Jefferson’s promised “honorable explanation” never came, guess what?  The jury found him not guilty of this most electric change of taking marked FBI bills that ended up in his freezer.

So now convicted, Jefferson is fighting for time to pursue his appeal on the other eleven convictions.  But are there any viable grounds for appeal?  Actually, yes.  His lawyers can cry “foul” on two counts.

 One is that Jefferson was not allowed to confront his accuser.  Some of the strongest evidence against him was supplied by a Northern Virginia businesswoman, Lori Mody, who was a cooperating witness for the FBI.  She was seen and audio recorded on tape handing off a brief case to Jefferson, supposedly with the “cold cash,” and the prosecutors played numerous taped conversations between the two at the trial.  But where was Mody at the trial?  Wasn’t she to be the star witness against Jefferson?  She was never called as a witness, and despite strong objections from Jefferson’s attorney, Robert Trout, the trial judge allowed her tapes to be played.

It would seem to be pretty basic constitutional law that anyone on trial should have the right to confront their accuser.  Sixth Amendment to the Constitution and all that.  Heck, you can peek into the Bible (Acts of the Apostles 25:16) that even the Romans let one face his accuser:  “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”Â  Apparently, the trial judge in Jefferson’s case, one T.S. Ellis III, doesn’t give much diffidence to either the Good Book or the Constitution.

You would expect that the FBI would have put Morgan on the stand to offer an “eye witness account” of Jefferson’s bribery attempts.  So why wasn’t she proffered as the key witness?  We now find out, after the trial, that the prosecutor’s star witness was having a sexual relationship with the key undercover FBI agent who drove Mody to all the meetings where she secretly taped and delivered cash to Jefferson.  So Mody’s FBI “handler” (double entendre intended) was tainting the major witness in the entire case. Whatever Jefferson’s guilt or innocence, his lawyer should have had the chance to cross examine Lori Mody.

Then there were the three guilty verdicts by the jury involving “depriving citizens of honest services.” You know what that means”¦right?  Go ahead.  Define it for us.

One of the cardinal rules of a grade -school vocabulary test is this:  the word that the student must define cannot be used in its definition.  However, honest-services fraud –“a scheme or artifice to deprive another of the intangible right of honest services” ““ is a term that no one seems able to define without using “honest-services” in its definition.  Which a priori implies that because it cannot be defined, it is unconstitutionally vague.

Remember now that “honest services fraud” does not apply only to public officials.  The law as written has been interpreted by the federal courts to apply to any individual, and has become an open-ended invitation for federal prosecutors to bring charges against anyone that they consider dishonest. 

Have you ever made a personal call while at work?  Have you “surfed” the Internet while at your desk to find sports scores or to purchase something for private use?  Members of congress often say that do not read all the laws on which he or she has voted, yet private individuals have been convicted for “honest services fraud” because they did not read every word in a legal document they had signed.  The federal law of “honest services fraud” has become little more than a conviction awaiting someone to be charged.

Supreme Court Justice Antonin Scalia has some harsh words for any conviction involving so called “honest services,” and has said that “it is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”Â  He has listed numerous examples to illustrate why this provision is just too broad.  A state senator who voted for a bill only to appease a small minority essential to her reelection, a mayor who used the prestige of his office to obtain a table at a restaurant, a public employee who recommended a friend for a public contract, all, according to Scalia, would be in violation of this vague federal law.

The definition of “honest services fraud” would seem to be a lot like the definition given by the courts to pornography.  Judges say that really can’t define it but they know it when they see it. Maybe that’s why the Supreme Court has agreed to hear three combined cases on recent convictions involving “honest services fraud.”Â  And with the high court’s interest so peeked, this might signal some hope for Jefferson’s appeal.

Remember that Jefferson was not convicted of anything related to money in his freezer.  His so called crime was bilking some foreign dictator out of big bucks.  Kind of like Paul Newman did in the “Sting.”Â  Who did you root for in that movie? Newman of course.

Here’s the bottom line. Forget all about Bill Jefferson.  It’s you that just got convicted.  Or perhaps your child.  And when you look back at your trial, the main witness against you doesn’t show up, but the prosecutors only use her taped voice  so  you cannot cross examine or challenge what she says in any way.  And while she is setting you up, she is having a sexual relationship with the key FBI agent that is trying to put you in jail. Sounds like something out of a Kafka novel.

 Then you are charged with six counts of “honest services fraud” that even conservative pro prosecution Justice Scalia says is much too vague.  Did you get a fair trial?  Do you have grounds for an appeal?  You be the judge.

I’m not here to defend the antics of Bill Jefferson.  He obviously financially benefited himself and his family while on the public dole.  Being a congressman is a full time job, and he should not have been pulling some international scam while being in public office.

But everyone, guilty or innocent, is entitled to be guaranteed that both sides play by the rules. The feds seem to be acting more like the keystone cops.  Jefferson just might get a whole new trial, which raises the question of prosecutorial incompetence.  Just how hard should it be to convict someone they pass money too and find it in his freezer?

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“This is a court of law, young man, not a court of justice.”Â  ~Oliver Wendell Holmes, Jr.

Peace and Justice

Jim Brown

Jim Brown’s weekly column appears in numerous newspapers and websites throughout the south.  To read past columns going back to 2002, go to www.jimbrownla.com.