MONTGOMERY, Ala. (August 7, 2006) -- Former Alabama Supreme Court Justice Terry Butts made no bones about what the Scrushy legal team's supplemental Motion for Acquittal was all about - simply put, there was no quid pro quo or "something for something" proven in the government's case against businessman Richard Scrushy and former Governor Don Siegelman.
Butts told the media during a Monday morning conference call "if the bribery conviction falls, then everything else falls."
Sticking very closely to the filing, Butts told reporters,"The United States Supreme Court has made it absolutely clear" that there must be an explicit promise, a quid pro quo, when political contributions are involved."
He says there is a "requirement of payment in return for an explicit promise or undertaking by an official." In this case, Scrushy was convicted of arranging $500,000 in contributions to Siegelman's Alabama Education Fund and the Alabama Education Lottery Fund.
Reiterating arguments laid out in Friday's court filing, the former justice says there is "absolutely no evidence in the case" and the absence of a quid pro quo is a "fatal flaw" to the government's case.
Butts says even if Nick Bailey's testimony is taken at face value, there was no explicit arrangement between the former governor and Richard Scrushy and no matter which date you use for the meeting since the "documents and the dates don't match up it makes no sense. It's beyond belief."
Butts says the McCormick case which involved a state representative from West Virginia is a key to the case. In that particular case the Supreme Court had to decide whether or not a quid pro quo was required for a conviction under the Hobbs Act. A little research and reading on the Hobbs Act unearths DOJ commentary on the act.
Initially the Hobbs Act was viewed as requiring extortion, "the wrongful use of actual or threatened force, violence or fear." However according to the DOJ's own manual the Supreme Court in Evans v. United States explained, "[a]t comon law, extortion was an offense committed by a public official who took by color of his office money that was not due to him for the perfomance of his official duties...Extortion by the public official was the rough equivalent of what we would now describe as taking a bribe."
In its Criminal Resource Manual 2404 the DOJ issues a caveat about The Hobbs Act and campaign contributions. Citing the McCormick case the manual states, "The Supreme Court has held that, when an allegedly corrupt payment masquerades as a campaign contribution, and when there is no evidence that the corpus of the 'contribution' inured to the personal benefit of the public officer in question or was a product of force or duress, the Hobbs Act requires proof of a quid pro quo agreement between the contributor and the public officer...However, the Court has also held that proof that a quid pro quo agreement existed in a corruption case brought under the Hobbs Act may be proven circumstantially. Evans v. United States.
Then in the same manual there is another caveat about The Hobbs Act and evidence of a quid pro quo. When the Hobbs Act is applied to public corruption scenarios that lack evidence of actual 'extortiante' duress, some courts have intrepreted the Hobbs Act very strictly to require proof of a quid pro quo relationship between the private and the public parties to the transaction, even where the corpus of the payment inured to the personal benefit of the public official."
One begins to understand in law, just as in interpreting the Bible, one can find a passage for almost any point of view. The only points of view that eventually will matter in the near future will be those of federal judges.
Butts remarks Siegelman nor Scrushy personally received "one dime in their pockets. They received no benefit. The evidence is clear on that point" and Butts sayd the testimony is "unrebutted and unrefuted" that Scrushy did not want a seat on the CON Board.
He says the evidence clearly shows the meeting between Siegelman and Scrushy was a "get acauainted meeting" citing Harris' injunction that he told both men they needed to try and get along. He says Harris' testimony reinforced the fact that Scrushy did not want a seat on the CON Board.
Butts also hit on the point that testimony by former Alabama Power CEO Elmer Harris and Raymond Bell, appointments secretary during the Siegelman transition, showed Scrushy was qualified to be on the CON Board and that Scrushy's name was on the list prior to Siegelman taking office and prior to the meeting between Siegelman and Scrushy.
The former justice touched on other issues in the conference call as well.
"Richard Scrushy should have received a separate trial...The jury struggled to do its best," said Butts. But he reiterated because of "four co-defendants and a mish-mash of different charges" it was all but impossible to "ask a jury to understand something it took the government seven years to investigate." He says the case was difficult enough for lawyers "whether they're from Philadelphia, Mississippi or Philadelphia, Pennsylvania."
Butts also brought up the fact that the grand jury makeup that indicted Scrushy was "racially imbalanced." He says the defense is "still hopeful that will be granted." It has to be noted a similar jury challenge motion in the Leon Carmichael case was denied on the day the corruption verdict came out. The motions are similar in nature.
Butts said Judge Fuller has yet to rule on the legality of the case, "whether the case should have gone to the jury." Butts says in the federal system you can delay ruling until after the case has gone to the jury and that the judge can still say "he does not think it should have gone to the jury."
As to the prosecutions statements in closing that this was a "pay to play" deal, Butts says that statement is analogous to his comments about General Sherman the day of the verdict. He says even if you take it as true, but "we don't believe it was a pay to play deal"; but if you're going to say pay for play "there must be an express quid pro quo." "Show me where we paid anything to play...the money received is Constitutionally protected" Butts says the prosecution had to show the quid pro quo and "they can't do it."
The government has until August 18th to file their response to the motion an they will file a written response. Then the defense will have until August 25th to reply to the prosecution's response. Judge Fuller has indicated after all the motions are in he will make a determination regarding whether or not oral arguments need to be heard.