7th Circuit's Reversal of Georgia Thompson Conviction

It's rare that a federal circuit court of appeals issues its ruling on the day of oral argument. But that's exactly what happened in the case of Georgia Thompson, the Wisonsin state procurement supervisor who was convicted of depriving the state of her honest services based on a vote to award a contract to a travel consultant to a donor of Democratic Governor Jim Doyle.

According to one judge on the panel:

"I have to say it strikes me that your evidence is beyond thin," federal Appeals Judge Diane Wood told prosecutors. "I'm not sure what your actual theory in this case is."

From the Milwaukee Journal Sentinel:

Finally, the justice system has corrected itself and freed Wisconsin's unwitting political prisoner, Georgia Thompson. The former state procurement supervisor went to trial and to prison on the basis of evidence so flimsy it's scary. If such weak proof can put her behind bars, are any of us safe?

The larger question involves U.S. Attorney Steven Biskupic:

Is his quickness to put the heat on Democrats the reason he was spared in the purge of U.S. attorneys? Is he a "Bushie," as a White House aide called top prosecutors who toe the party line?


U.S. Attorney Biskupic had a good reputation before the Thompson case which was strengthened by his investigation of Republican claims of a conspiracy to commit widespread voter fraud in Wisconsin. Biskupic traced the claims to a couple of college kids who, it turns out, made it all up. The few isolated cases of illegal voting he could actually find were insignificant, and he concluded his investigation without substantiating the Republican claims.

An important component of this story is that the White House pressured federal prosecutors to bring election fraud cases.

Dana Perino, spokeswoman for President Bush, got the ball rolling last month when she divulged this: Since mid-2004, the White House had received complaints that election fraud cases were not getting the attention they deserved in Philadelphia, New Mexico and Milwaukee. She made the comments in the midst of the firestorm over the firing of eight U.S. attorneys by the Bush team.

"The president recalls hearing complaints about election fraud not being vigorously prosecuted," Perino said, "and believes he may have informally mentioned it to the attorney general during a brief discussion on other Department of Justice matters."

Karl Rove's fingerprints were all over the plan.

It may be that Biskupic felt the heat:

The real story of the U.S. Attorneys scandal that has so endangered the tenure of Attorney General Alberto Gonzales is not that of the eight fired prosecutors. It is that of the 85 U.S. Attorneys around the country who were not let go.

There's no doubt that Biskupic thought there was a connection between the award of the contract and the winner's campaign contribution to Doyle, and there's no doubt that Biskupic wanted to go after Doyle. But, he had no evidence against Doyle.

Did Biskupic bring this farcical case against an innocent state worker just to embarrass Doyle during his re-election campaign, or even to influence the election in favor of the Republican candidate?

I doubt it. A better question is, did Biskupic indict a state employee who was low on the food chain, expecting her to roll over and give up Jim Doyle? And did Georgia Thompson ultimately get taken to trial, despite the weak case, to punish her because she refused to roll? It sure wouldn't be the first time that's happened in our federal justice system.

The strategy of climbing the ladder only works when the person at the bottom of the ladder knows something about someone higher up the chain. If there's no chain, there's no connection and the strategy doesn't work. The poor defendant then has to choose between making something up to satisfy the prosecutor or going to trial to assert her innocence. And unless the prosecutor is willing to admit a mistake, he's stuck in a pointless trial that won't take him where he wants to go.

Maybe that's what happened to Biskupic. Perhaps he is not as nefarious as some are now speculating. He may have just behaved like prosecutors behave, got stuck with a bad case, refused to dump it, and got lucky with a conviction.

At least Georgia Thompson also got lucky when the Seventh Circuit panel took her case seriously and acted promptly to end her unjust imprisonment.

And while Biskupic is going to be tarnished over the case, and probably should be, we shouldn't forget where the push to bring these cases began: with the White House and probably Karl Rove.

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    u.s.attorny (none / 0) (#1)
    by jcarl568 on Tue Apr 10, 2007 at 08:15:12 AM EST
    how did this get past the district judge?it is truly scary that the conservative 7th circuit would reverse from the bench while the district judge allowed the case to go to the jury and then let the conviction stand.did bush appoint this judge?

    something i've seen no comment on: (none / 0) (#2)
    by cpinva on Tue Apr 10, 2007 at 08:15:29 AM EST
    a jury convicted her, based on the prosecution's case. if his case had so little merit, what does that say about the mental capacity of the members of the jury? a commment made by one of the jurors causes me to believe she was convicted, not for anything she'd actually done, but because they felt that others, above her, were guilty of something.

    this does nothing to increase my confidence in the jury system.

    Your point on intelligence has some merit, but (none / 0) (#3)
    by scribe on Tue Apr 10, 2007 at 08:49:25 AM EST
    I think we'd have to really look hard at the jury instructions, what the judge allowed to pass for argument in summation and what the judge allowed into evidence, and, of course, the very, very vague nature of what can constitute depriving a governmental agency of "honest services".  

    Really, "honest services" is even more vague than mail fraud or wire fraud. With those two, at least the prosecution has to prove you used the mail or the phone.  With honest services, it isn't even that difficult.

    And, TL, I think you are leaving out of the Biskupic calculus the huge number of GOP/winger radio and TV ads last year which harped all over the Thompson case as Proof, Proof, Proof that the Democratic administration in Wisconsin was corrupt and no Democrat should get a vote.  In so many words.  If we believe USA Biskupic was ignorant of the prospective use of the case by political operatives of the party which appointed him, we're deserving of all the bad things that happen to those that naive.  More likely, he was aware that the WH was likely Not Happy about his not finding any "Voter Fraud", and he probably heard the knives being sharpened in Main Justice.  Thompson was exactly the bone the Rethug media machine needed to worry, maybe win the election, and keep its jaws away from Biskupic's own behind.


    A legal question (none / 0) (#4)
    by jimakaPPJ on Tue Apr 10, 2007 at 08:54:01 AM EST
    Leaving aside the right or wrong of this case..

    I thought an appeals court could not rule on the evidence and results... but had to find some error in the trial...

    Any of you ladies and gentlemen want to explain??

    I thank you for your pro bono work.

    Ok, in short, there are a number of ways: (5.00 / 1) (#6)
    by scribe on Tue Apr 10, 2007 at 09:55:27 AM EST
    First, Jim, you are right* that appeals courts do not consider the evidence, but that only goes so far.  As a very general rule (like all rules, there are even here a few exceptions) they do not consider the evidence in the sense of deciding which witness was truthful/right and which not.  That's the jury function.  

    What the appeals court will consider is whether there was enough evidence presented to support the verdict rendered.  This is called, in lawyer shorthand, "the weight of the evidence".  The weighing of whether there was enough evidence is done in the light of precedent, i.e., asking whether a similar quantum of proof had previously sustained a verdict.

    In the civil context, for a party to preserve an appeal where that point of the argument is titled "The verdict was against the weight of the evidence and should be reversed", the party must have made motions in the trial court at the end of the plaintiff's case and at the end of the defendant's case for judgment as a matter of law.  It roughly goes like this:

    [Opening arguments, Plaintiff's case]
    Plaintiff's counsel:  "The plaintiff rests [, reserving the right to seek to introduce rebuttal]."
    Judge:  "motions?"
    Defendant's counsel:  "Your honor, at this point, the defense moves for judgment as a matter of law.  Based upon the evidence and testimony presentend, no reasonable jury could find for the plaintiff."  [the second sentence is the legal standard for the motions]
    Judge:  "thank you.  I'll reserve."  (or deny the motion)(see below)
    [Defendant's case]
    Defendant's counsel:  "The defense rests."
    Judge:  "motions?"
    Plaintiff's counsel:  "Your honor, at this point, the plaintiff moves for judgment as a matter of law.  Based upon the evidence and testimony presentend, no reasonable jury could find for the defendant."  [the second sentence is the legal standard for the motions]
    Defendant's counsel:  "Your honor, the defense renews its motion for judgment as a matter of law.  Based upon the evidence and testimony presentend, no reasonable jury could find for the plaintiff."
    Judge:  "thank you.  I'll reserve."  (or deny the motion(s))
    [Jury instructions, summations, instructions, deliberations, verdict, entry of judgment]
    Losing party files a motion for a new trial, based upon the verdict being against the weight of the evidence.
    Motion denied.
    Appealing party files an appeal, raising as a point of the argument that "The verdict was against the weight of the evidence."  Another point can be "I should get a new trial because the trial court's denial of my motion for a new trial was erroneous and should be reversed."

    I'm far from a criminal procedure maven, but as I understand it, the basic structure described above also holds for criminal trials.

    Now, the point (severalfold) is this:  by going after the weight of the evidence in deciding the appeal - "your proof is beyond thin" said one judge - and attacking the government's theory of the case - "I'm not sure what your theory is" was one judge's question - what the appeals court judges did was preclude a retrial and make sure the case was over.  Why?

    In tossing the case on the grounds they did, the appeals judges accepted the facts as they were, and did not address any question of law - whether the arguments were allowable, whether the jury instructions were correct, whether the indictment was correctly drawn, etc.  Nor did they decide whether the defendant received a fair trial.  Addressing a question of law or whether the defendant received a fair trial would have required reversing the decision, and sending the case back for a new trial.  Finding that the verdict was against the weight of the evidence would, in the civil context, also likely result in a new trial, particularly if some evidence favoring the loser below had been excluded.  But, since the Double Jeopardy clause protects defendants against the government trying again, there is no retrial.  Simply, no reasonable jury should have found guilt beyond a reasonable doubt.  And, because of that, no more trial.

    * for a change - this is the exception that proves the rule, I guess
    **  I've seen two of these motions granted by trial judges, about 10 years apart - it happens quite infrequently.


    Thanks (none / 0) (#9)
    by jimakaPPJ on Tue Apr 10, 2007 at 12:15:41 PM EST
    So the court disregarded the jury?

    That may be "correct" in thise case, but it seems kind scary..


    Yes and yes (5.00 / 2) (#11)
    by txpublicdefender on Tue Apr 10, 2007 at 01:03:09 PM EST
    There is a reason something like this is so rare, and that's because courts are extremely reluctant to "disregard" a jury's verdict.  But, sometimes, juries get it wrong, and in this case, it seems like they unquestionably did, although it may not have been their fault.  It is the judge's job to not even allow a case to proceed to a jury verdict if all the prosecution's evidence, even if believed, doesn't add up to the defendant being guilty of a crime.  The trial judge in this case didn't do his job, and so the appellate court had to correct his mistake.  If the jury was instructed that "if you find fact A to be true, you should convict the defendant of crime B," and fact A was proven, then the jury did their duty in following their instructions and convicting of crime B.  But if the judge was wrong, and fact A does not actually constitute crime B, then the jury's verdict was 100% wrong, even though they acted appropriately.

    Honestly, the fact that the court didn't even wait to issue an opinion, but immediately reversed right after oral argument, and ordered the defendant released just highlights how horribly wrong the trial judge got this case.  He should be humiliated, even more than the prosecutor.  The prosecutor, at least, is an advocate.  He can argue to the court an interpretation of the law as long as he reasonably believes it.  In this case, maybe he did and maybe he didn't.  But, ultimately, the judge is supposed to make the correct call, and this judge clearly blew it, big time.


    From the article (none / 0) (#7)
    by nolo on Tue Apr 10, 2007 at 10:35:31 AM EST
    it looked like the panel had problems with the legal sufficiency of the indictment as well.  How a criminal prosecution that was so flawed that three appellate judges in one of the more conservative (and intellectual) of our appellate circuits would throw the whole thing out from the bench ever got that far is a mystery to me, but there you are.

    Thanks (none / 0) (#10)
    by jimakaPPJ on Tue Apr 10, 2007 at 12:17:05 PM EST
    there was legal error (none / 0) (#8)
    by txpublicdefender on Tue Apr 10, 2007 at 10:50:13 AM EST
    The legal error in the trial was that, even if you believed all the state's evidence, what the defendant did wasn't a crime.  At least that's what it sounds like to me from listening to the oral arguments.  What the jurors think doesn't matter because the jurors basically found certain facts, and then, applied those facts to the law given them by the judge to find her guilty.  The appellate court probably found (and we don't know for sure what they found because they haven't issued a written opinion yet) that the law given them by the judge was obviously incorrect in that it allowed the jury to convict someone of the crime for facts that did not amount to a crime.  But it's more than just jury instructions, because if the only problem was jury instructions, they would have reversed and granted a new trial.  By entering a judgment of acquittal, they must have found that, even if you take all the prosecutions evidence to be true, and grant them every reasonable inference from that evidence, it still didn't amount to a crime.  

    It would be like if someone was indicted for Crime A because he wore red pants in public.  The state could put on a dozen eyewitnesses to say they saw that person wearing red pants in public.  They could introduce a videotape of the person standing in public, wearing red pants.  They could have a confession from the person, admitting that he wore red pants.  And the judge could instruct the jury that, if they find beyond a reasonable doubt that the person wore red pants in public, then they should convict the person of Crime A.  And then the jury, with their mountain of evidence, would convict.  But when the appellate court looks at the case, they can say, "Wearing red pants in public does not constitute a crime.  You can't be convicted of Crime A becuase you wore red pants in public."

    Of course, the federal mail fraud statute, when it gets into the area of "honest services" cases, is more complicated.  It's not necessarily as straightforward as "wearing red pants."  But the principle is essentially the same.  The prosecutor said the defendant wore red pants, and the appellate court said that even if she did, wearing red pants isn't a crime.    


    Redress? (none / 0) (#5)
    by LarryInNYC on Tue Apr 10, 2007 at 09:48:06 AM EST
    In general, what options do wrongfully convicted plaintiffs have for redress in a case like this?

    They have three: (5.00 / 1) (#13)
    by scribe on Tue Apr 10, 2007 at 03:25:16 PM EST
    (1) sue for denial of their civil rights, with virtually no chance for victory (thank you, Courts of Appeals and Supreme Court.);

    (2) get on with their lives;

    (3) make a nuisance out of themselves advocating against the prosecutor/cop who done them wrong (which usually has bad results for the former defendant if done directly), or turn into an activist.

    Some states have laws allowing a person to recover some amount of money (often, X dollars per year of confinement) in the case of a wrongful conviction, but the feds (IIRC) do not.  Since this was a federal conviction, no luck.

    From what I've read, though, the defendant here will be getting her former job back, back pay and her attorneys' fees.  Many states have laws which provide for indemnifying their employees' defense expenditures, in the event the employee is not guilty and the charge related to their work.


    There's a fourth way - get the Senate to subpoena (none / 0) (#14)
    by scribe on Tue Apr 10, 2007 at 03:32:51 PM EST
    the Attorney General and all the documents pertaining to the case (and the WH interference) and make a nice hearing out of it. This just came across the wires, and that's what they're doing.

    Mr. Biskupic, Mr. Gonzales, please meet the Senate Judiciary Committee....

    Here's the CBS news report, with the full text of the letter.  They want the documents produced by Friday, April 13, 2007.


    There is a federal remedy (none / 0) (#15)
    by txpublicdefender on Tue Apr 10, 2007 at 07:40:50 PM EST
    Although the federal government doesn't have a "wrongful conviction" compensation program like many states do, they do have the Hyde Amendment, which, as I said avove, provides for a judgment of attorney fees and litigation costs against the government, but only upon a showing of a frivolous, vexatious, or bad faith prosecution.  Judging by how the Court of Appeals handled this case, it could qualify.  

    hyde amendment (none / 0) (#12)
    by txpublicdefender on Tue Apr 10, 2007 at 03:16:13 PM EST
    In federal court, acquitted defendants can apply for compensation--attorney fees and other litigation costs--under the Hyde Amendment for frivolous or vexatious prosecution.  It's tough to get, but it does happen sometimes.  The Aisenbergs in Florida, for example, who were wrongfully charged in connection with the disappearance of their baby girl based on egregious misrepresentations of what was recorded in wiretapped conversations, got a big award under the Hyde Amendment.

    Can someone give a link to the decision (none / 0) (#16)
    by msobel on Tue Apr 10, 2007 at 09:40:43 PM EST
    Can someone give the link to the decision so I can read it ?

    prosecutors (none / 0) (#17)
    by diogenes on Tue Apr 10, 2007 at 11:36:40 PM EST
    If the indictment was flimsy, then the grand jury or judge who passed it through blew it.  If there was no proof, then the jury blew it.  From a legal standpoint, these are the problems, although from a leftwing political point of view I'm sure it's more fun to throw mud at the prosecutor.