Siegelman Defense Files Reply to Government - Montgomery Alabama news.

Siegelman Defense Files Reply to Government

The defense team for former Governor Don Siegelman filed their reply to the government's response to the previous defense motions for acquittal shortly before minding Friday night.

In the pleading Siegelman's attorney's say, "This case involves very fundamental differences between the Defendants and the government as to the appropriate application of criminal law when individuals and public officials are engaged in traditional political conduct."

"This case is not the first case in this area of the law in which the government has taken the wrong, overreaching prosecutorial position on the law; this case is not the first case in this area of the law in which the government has attempted to take the courts in the wrong direction;  and this case will not be the first case in this area of the law in which the government has been and will be corrected by the court with the government conviction being resolved by a judgment of acquittal or reversal."

Reiterating many of the same arguments postulated in their corrected supplemental Motion for Acquittal filed on August 7, 2006, lawyers for the former governor argued again that "in this case, the government's evidence at trial proved that if a crime occurred, it occurred in July of 1999 - outside the statute of limitations."

Saying the statute of limitations is a "question of law" and not a "factual dispute," the filing says:

"The Indictment did not specify what conduct the government alleged was "continuing" from July 19, 1999 through on or about May 23, 2000.  This is important because the Original Indictment was returned on May 17, 2005 - less than five years after May 23, 2000.  On its face, the Indictment alleged that a crime occurred within the five year statute of limitations. 

However at trial, the government revealed (through primarily the testimony of Nick Bailey) that the basis of Count Three was a meeting between Governor Siegelman and Richard Scrushy whereat Mr. Scrushy allegedly agreed to raise $250,000.00 and have the HealthSouth contribute another $250,000.00 to the Alabama Education Lottery Foundation (AELF).  The government claims that this alleged July 1999 agreement was "continuing" because HealthSouth did not contribute the $250,000.00 (allegedly promised by Mr. Scrushy in July 1999) until May 2000.  But the law does not support the government's theory of a "continuing" crime. 

As discussed in detail in Governor Siegelman's prior brief, the crime alleged by the government in Count Three occurred (if at all) in July of 1999 when the agreement was allegedly made, not in May of 2000 when the final contribution was received. 

"Had the government clearly set forth the basis for its Count Three allegations (instead of waiting until trial to reveal its theory of the case), Governor Siegelman would have had an opportunity to raise his statute of limitations defense in a Rule 12 motion. 

The government elected not to issue a clear Indictment, and it now appears that the government's wording of the Indictment was expressly intended so that Governor Siegelman would not raise a statute of limitations defense.  The government essentially concedes the running of the statute of limitations but argues that this issue was not timely raised.  In this case, the "sandbagging" was not perpetrated by the Defendant (whish is what Rule 12 addresses), but by the government which carefully worded the Indictment to mask the statute of limitations defect."

"It is the height of disingenuousness for the government to draft an Indictment that obfuscates the government's theory of liability (thereby masking the statute of limitations defect), vigorously oppose all efforts to clarify the Indictment, and then, after the government reveals at trial a defective theory of liability, claim that Governor Siegelman should have alerted the Court to the government's defective Indictment in a Rule 12 motion. Governor Siegelman's motion is a timely objection to the government's failure of proof at trial."

Calling the government's attitude "cavalier and recalcitrant" and saying the prosecution had an "apparent lack of concern for First Amendment rights in this very sensitive area of the law," the defense brief says the prosecution ignored the argument that the prosecution of the case raises "delicate and profound First Amendment issues that cannot be ignored."

"In taking a very narrow, myopic view of the Supreme Court's and the Circuit Courts' repeated expression of a profound and deeply felt need to exercise restraint in the area of the law where politics, political fundraising, political patronage and criminal law collide, the government prosecutors in this case are stretching thoughtfully balanced and well-established case law and legal standards beyond recognition."

The issue of whether or not an explicit quid pro quo was required to convict the former governor the brief says there is a "heightened quid pro quo requisite of proof that requires an explicit agreement, an explicit promise, and explicit quid pro quo -- a specific quid pro quo, an express agreement.  Indeed the government conceded at trial that it must prove an explicit, expressed agreement that if Mr. Scrushy paid Governor Siegelman $500,000.00 Governor Siegelman would appoint Mr. Scrushy to the CON Board:  "if it's campaign money, you have to find there was an expressed what they call quid pro quo, an expressed agreement."  Opening statement by Mr. Feaga, May 1, 2006..."

The filing goes on to say "no rational juror hearing the evidence presented at trial could conclude beyond a reasonable doubt that Governor Siegelman had an explicit, expressed agreement, specific quid pro quo with Mr. Scrushy that he would provide HealthSouth with membership owned, representation at, and influence over the CON Board in exchange for fraudulent, corrupt payments of $500,000."

The brief also claims the "government failed to fully address or counter Governor Siegelman's arguments that the promotion of funding of education for the general public was not a "thing of value" to Governor Siegelman under Section 666.  Similarly, the government failed to fully address or counter Governor Siegelman's arguments that the government failed to meet its burden of proving that Governor Siegelman's appointment of Mr. Scrushy to the CON Board was done "corruptly" under Section 666."

Judge Mark Fuller will now have to decide whether or not to hear further oral arguments on the motions of dismissal and subsequent filings.


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