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April 16, 2007

More ugly details about the Georgia Thompson case

Adam Cohen in the New York Times today has this interesting commentary on the remarkable Georgia Thompson case (background here).  The commentary, entitled "A Woman Wrongly Convicted and a U.S. Attorney Who Kept His Job," questions why US Attorney Steven Biskupic "turned a flimsy case into a campaign issue that nearly helped Republicans win a pivotal governor's race."   Here's how the commentary ends:

Mr. Biskupic insists that he prosecuted Ms. Thompson only because he believed a crime was committed, and that he did not discuss the political implications of the case or the timing with anyone in the Justice Department or the White House.  Congress has asked the Justice Department for all e-mail messages about the case to help resolve the matter.  But even if there were no discussions, Mr. Biskupic may have known that his bosses in Washington expected him to use his position to help Republicans win elections, and then did what they wanted.

That would be ironic indeed. One of the biggest weaknesses in the case against Ms. Thompson was that to commit the crime she was charged with she had to have tried to gain personally from the contract, and there's no credible evidence that she did.  So Mr. Biskupic made the creative argument that she gained by obtaining "political advantage for her superiors" and that in pleasing them she "enhanced job security for herself." Those motivations, of course, may well describe why Mr. Biskupic prosecuted Ms. Thompson.

Related post: The DOJ went crazy on Georgia

April 16, 2007 at 09:30 AM | Permalink

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Comments

I am just as concerned about the actions of Judge Randa, who not only failed to dismiss the case in accordance with the Federal Rules of Criminal Procedure, he then also refused to allow bail during the appeal, stating that there were no viable grounds. Talk about conflict of interest--the same judge who allowed the trumped up cased to go forward and then refused to dismiss, also gets to make the bail decision which hinges on his previous rulings. Perhaps, not coincidentally, Chief Judge Randa is overruled more than any other judge in his district--perhaps the 7th Circuit was just as annoyed with him--there is no doubt that their actions consitute a professional embarrassment for Randa.

As an aside, Judge Randa has posted writing on the web that state that Atticus Finch is his great ideal of what a lawyer should be. Well, Judge Randa, I read that book and I saw that movie and I even own the DVD and you certainly are no Atticus Finch, not even in spirit.

Posted by: william | Apr 16, 2007 12:26:55 PM

William,

There is no conflict of interest in setting bail, and trying the case. Sure, I disagree with all of his legal conclusions, but unless the judge had some financial or familial interest, the conflict just isn’t there.

Everyone spews crap about Atticus Finch. In fact, in some circles you are expected to. But, everyone knows that actions speak louder than words, and everyone knows that attorneys that have spent all of their lives NOT acting like Atticus Finch are just spewing rhetoric. Since I don’t listen to that rhetoric, I don’t see what harm it does.

Posted by: S.cotus | Apr 16, 2007 3:42:24 PM

I understand that it is not an improper conflict under the rules; indeed it is the prescribed method, but that does not stop it from being a conflict in fact. Furthermore, in most jurisdictions it would be relatively easy to assign such hearing to another judge or magistrate.

Posted by: william | Apr 16, 2007 4:17:45 PM

It would be "easy" but that doesn't mean the result would be differnt. In practice, most appeal bond issues are handled by the sentencing judge. Also, and most damning, is the fact that the 7th didn't not order her immediate release, as the First did with a GOP-operative that they ultimately handed an "almost" acquittal to. I posted that order here: http://appellate.typepad.com/appellate/2006/06/its_been_jammed.html

So, I woudln't blame the judge, but rather the 7th (or her lawyer).

Posted by: S.cotus | Apr 16, 2007 4:55:05 PM

I am not sure that I see the distinction. The 7th Circuit also issued an order mandating that the trial judge release Thompson immediately.

Obviously, some judges are better at understanding the way the game is played than others. In DC, some judges will automatically issue a ten dollar bond for defendants being held on previous charges to start the sentence rolling, while others consider that gameing the system.

My only point is that one of the most difficult things for a criminal defense lawyer who also handles the appeal is to raise the question of his own ineffectiveness, but some do.

In the same way, it takes a brave judge to state on the record, there is some chance that I will be overruled. Both situtations involve conflicts in fact but are allowed because there may be other good reasons not to change counsel or judges.

Posted by: william | Apr 17, 2007 12:00:36 PM

As a journalist for nearly 30 years I have spent many years in courthouses, both state and federal. From my perspective, most trials are theater. A forum for truth, yes, but not as much as good theater. And of course the theater critics of prime importance are the jury. I don't know Steve Biskupic, or the AUSA who tried the case if it wasn't Steve himself, but I've seen many miscarriages of justice perpetrated by brilliant, theatrical lawyers. That, my friends, is why the Mafia hires them. The flamboyant, the dramatic, the emotional defense lawyer has a good chance of getting rich because he's a good lawyer (wink, wink, nudge, nudge, he sways juries.)
Apparently Steve Biskupic had a very strong motivation -- job security. That may have prompted an Acedemy Award performance, (who needs facts?) to the detriment of Georgia Thompson.

Posted by: Jay Magoo | Apr 17, 2007 12:13:23 PM

Jay, Being a good defense lawyer (or prosecutor) isn’t just a matter of being flamboyant. It takes preparation and an ability to “command” the facts of the case. Or “make the facts your bitch” as I was once told.

Quite frankly, anyone can be flamboyant or emotional. It is cheap. It doesn’t appeal to many jurors. But, not everyone can deal understand the facts, trial procedures, and do what good trial lawyers subtlety do.

Posted by: S.cotus | Apr 19, 2007 11:19:09 AM

One of my mentors, a former federal judge and trial attorney, used to say that federal prosecutors have an advantage at trial for precisely the reason that most people think that they are disadvantaged: they assume the burden of proof.

His theory was that juries don't worry so much about the burden of proof as they attempt to mete justice. They look to see who is more impassioned and since most defense attorneys try to "hide" behind the reasonable doubt standard, they get skewered.

He taught us to settle the case if possible if there was no defense at all, but that if we went to trial, we were to forget everything we had ever heard and tell the jury that we would prove to them that the defendant was innocent. In my limited experience, it works much better than the traditional way of stressing the government's high, high burden of proof.

Posted by: william | Apr 19, 2007 12:06:35 PM

Well, I agree with him on that. At trial, juries just don’t get the whole idea of “burden of proof.” But, I don’t know if “appearing inflamed” or “passionate” is the way to go. Instead, I think that simply pouring on (or appearing to pour on) good facts is quite effective.

Posted by: S.cotus | Apr 19, 2007 2:31:10 PM

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