The year 2000 was the dawn of the tort-reform craze in Mississippi, when out-of-state groups like the U.S. Chamber of Commerce poured money into state elections in an attempt to roll back court regulation. The Chamber interpreted Supreme Court Justice Oliver Diaz as too friendly to plaintiffs and targeted his campaign, dumping millions of dollars into an ad blitz supporting Diaz' opponent, trial judge Keith Starrett, while refusing to identify its contributors. The Chamber even succeeded in getting an emergency appeal from ultra-conservative U.S. Supreme Court Justice Antonin Scalia to vacate injunctions challenging the legality of the Chamber ads.
Diaz needed money to counter the carpetbaggers. Two Gulf Coast attorneys, both wildly successful at suing Gov. Haley Barbour's beloved tobacco industry, guaranteed $153,000 in loans. Attorney Paul Minor guaranteed $73,000 in loans; Richard Scruggs guaranteed $80,000. With that money, Diaz barely managed to retain the judicial seat to which Gov. Ronnie Musgrove appointed him.
But Diaz had no idea he was winning a seat inside a firebox, and Minor had no suspicion that he was piling in after him.
'Absolutely Not Political'
In 2002, federal investigators marched into Minor's bank in Biloxi and demanded his finance records. The press caught wind by October 2002 that a federal grand jury was investigating corruption in the Mississippi judiciary. In 2003, U.S. Attorney Dunnica Lampton ducked out from under the blanket and held a press conference, proclaiming indictments for Diaz, Minor, Diaz' wife, Jennifer Diaz, and judges John Whitfield and Walter "Wes" Teel—who also received campaign loans guaranteed by Minor. The prosecution described Minor's loan as a bribe because he used his own money to pay off Diaz' loans when the initial backing fell through.
Minor also had guaranteed campaign loans to Republican-leaning judges, like former Chief Justice Ed Pittman. Other attorneys, like Sen. Trent Lott's brother in-law Scruggs, had guaranteed loans to judges during their campaigns, but the feds saw no reason to pursue those cases.
Defendants filed motions to dismiss the case for selective prosecution, as well as a motion to recuse Lampton. Judge Henry Wingate dismissed those motions, after deliberating upon them for more than a year and a half. Wingate's lengthy rumination produced no additional eloquence in his reasoning. His written order for dismissal contained no explanation.
Nevertheless, a host of conflicted interests mired the ensuing prosecution. Diaz claims Lampton put FBI Special Agent Kevin Rust in charge of his prosecution, although Rust had donated money to Diaz' opponent, Starrett, in the Supreme Court race. Lampton told the Jackson Free Press that Rust's campaign contribution to Starrett was limited to "buying a painting for $200," and added, "the FBI assigned the agents. I didn't."
But Lampton's own family owns the Forbes 500 company Ergon, which Minor sued for millions of dollars. In fact, Minor was still working the Ergon suit in 2002, the same year the investigation rolled down.
Lampton, though, denied the prosecution was biased. "It was absolutely not political. The jury heard all the evidence and convicted Minor, and I feel real comfortable about that. What Minor did was reprehensible," Lampton said last week. "…Every time I've prosecuted a public official the claim is it's vindictive, whether it's a Republican or a Democrat, so I'm getting beat up for being vindictive when I'm not making the call."
Still, some members of the U.S. House Judiciary Subcommittee on Crime, Terrorism and Homeland Security and the House Judiciary Subcommittee on Commercial and Administrative Law saw enough monkeyshines in the situation to announce a hearing on the matter, which some Democrats call a witch hunt.
Diaz, who survived the indictment and a subsequent tax-evasion indictment unscathed, said as much in a letter to the Judiciary Committee. "As a result of political persecution, three innocent men … have been sentenced to lengthy terms in federal prison. They were selected for prosecution based solely on their political activities. They were subjected to vague charges of corruption, which were impossible to defend against. They were prosecuted when others who had done the same things were not," the Mississippi Supreme Court justice said in an Oct, 11, 2007, letter to the House Subcommittee on Crime, Terrorism and Homeland Security.
Minor: What About Scruggs?
Minor, who is serving 11 years in an Oklahoma federal prison, says what frustrated him the most about the trial was how similar his practice of guaranteeing loans to judicial races had mirrored that of Teflon-coated Gulf Coast trial lawyer Scruggs, who offered the same services to Republicans.
"Scruggs was not prosecuted although he did the same thing which I was convicted of," Minor said in a letter to the same House subcommittee. "Scruggs, however, had contributed $250,000 to the Bush-Cheney presidential campaign and (the) GOP in 2002. The Federal Election Commission Report of September 14, 2000, shows that Scruggs and his wife gave over $500,000 to various Republican causes. Scruggs also guaranteed a $500,000 loan to Republican Lieutenant Governor Amy Tuck … a leader in the effort for tort reform (in Mississippi)."
Scruggs did not return calls.
Lampton said Scruggs' and Minor's behavior was not comparable, but would not elaborate. "Talk to the FBI about Scruggs, but my answer is, 'No, it was different,' and I would explain that if we had the time," Lampton said. He would not say if his office had initially intended to chase Scruggs, but added that nobody had called him off a chase involving the lawyer.
"Nobody told me not to prosecute Scruggs," Lampton said.
In his own letter to the House Judiciary subcommittee, Minor said that prosecutors allowed second thoughts among their ranks.
"Special FBI Agent Matthew Campbell, a forensic accountancy expert, was in charge of the investigation. When he questioned why Scruggs was not also being investigated, he was removed from the investigation and transferred to Guantanamo Bay," Minor said.
Lampton said the decision to remove Campbell was not his. "Talk to the FBI about that, because they removed him," Lampton said.
The FBI did not return calls.
Diaz pointed out that Lampton admitted to the press in 2005 that his first indictment against Diaz had little strength—because Diaz did not vote on any of Minor's cases—but Lampton pressed the case, nonetheless.
"I did say that that case was the weakest," Lampton conceded last week. "There are other things that I'm aware of regarding Diaz that caused me to refrain from commenting further on that, but it will come out later, and you'll see. The Justice Department and I strongly disagreed on how to prosecute that case. The Justice Department got their way, and I believe there was sufficient evidence to convict him, but maybe not for what he was charged."
A jury found the prosecution's first case against Diaz just as foggy as Lampton did, and acquitted him in August 2005. They could not reach a verdict on the other defendants. Three days later, Lampton unwrapped a second indictment against Diaz and his wife for tax evasion and announced he would retry the case against the other judges.
Stacking the Deck
The court found Diaz not guilty of tax evasion in 2006, but a jury found the other defendants guilty on their first charges in 2007. Wingate sentenced Minor to 11 years and ordered him to pay more than $4 million in fines—15 times the amount recommended in the federal sentencing guidelines. Teel got five years in prison, and Whitfield got nine years.
Jennifer Diaz, who pled guilty to one count of tax evasion, got two years supervised probation. Prosecutors said the Diazes failed to pay more than $42,000 in taxes on income the couple disguised as loan repayments. Diaz told the JFP that he and his wife had filed amended tax returns correcting the miscalculation, and paid the difference, prior to the tax-evasion indictment.
Diaz was lucky he'd gotten off in his first bribery trial, because he might not have persevered in the second. The court tweaked the jury instructions against Minor and the others the second time around. Mississippi had no law prohibiting judges from taking campaign cash from attorneys, not even from attorneys whose cases go before the judge in question. Diaz had recused himself from all of Minor's cases, though, so the jury had no problem letting him off in his first trial. Whitfield and Teel had each heard one of Minor's cases, but state law still hadn't addressed that at the time of the loans. The prosecution, therefore, had to resort to federal law, helped along by a series of slack instructions.
Wingate—appointed by President Ronald Reagan—took no chances in this second bribery trial of Minor, Teel and Whitfield, and agreed to rule out the necessity of a quid pro quo in the case. Quid pro quo describes an exchange of services—meaning essentially that Wingate agreed that no proof of a bribe was necessary in this particular bribery trial.
In addition, Wingate also allowed instructions that the defendants could be found guilty "even though you find that the (defendant judges') rulings were legal and correct, that the official conduct would have been done anyway, that the official conduct sought to be influenced was lawful and required by law, and that the official conduct was desirable and beneficial to the public welfare."
In other words, the jury was free to make decisions against the defendants, even if the decisions that Minor allegedly bought from the defendant-judges were perfectly legal, sane and logical. "With vague charges by prosecutors and rulings like these from the trial judge, it is no surprise that the second jury was able to convict," Diaz wrote.
The results of this trial have been devastating to the Democratic funding base in Mississippi.
"I would say that the trials of Diaz and Minor struck a huge blow to Democratic funding all over the state," said Mississippi College School of Law Professor Matt Steffey. "It certainly had the affect of making lawyers more wary of giving to Democrats. … They had to notice (the connection)."
What happened here was not limited to Mississippi, according to University of Missouri communications professor Donald Shields. He says the prosecution of Minor, Diaz and others around the country amounted to nothing less than federally orchestrated political hits, a deliberate targeting of Democrats by the U.S. Department of Justice.
Shields' ongoing study, "The Political Profiling of Elected Democratic Officials: When Rhetorical Vision Participation Runs Amok," details what he calls "an embarrassingly obvious case of political profiling of elected Democratic officials."
The report recorded the U.S. attorneys' federal investigation and/or indictment of 375 elected officials between January 2001 and December 2006. Shields' data indicates that the offices of the U.S. attorneys across the nation investigated seven times as many Democratic officials as Republicans.
"When I first started the study, the first few cases I got were 85 percent for Democrats and 14 percent Republicans. I doubted what I was first seeing, but that's why I decided to go on and make it a large sample and not a small one," Shields said in an interview.
The report is slated for completion after the Bush administration leaves office, but calculations extending into February 2007, reveal 298 indictments or investigations leaked to the press dealing with Democrats—while Republican officials only suffered 67 indictments or investigations in the news. The report recorded only 10 admitted investigations of independents.
The Democratic-Republican ratio of local investigations and indictments reported by more gullible media, such as The Clarion-Ledger, differed dramatically from those drawing national investigations—where a more sophisticated media isn't as likely to get suckered. National and statewide investigations leaked to the press showed a more balanced number, 36 Democrats to 30 Republicans subject to investigations—while local Democratic corruption investigations far outpaced those of Republicans.
Shields said the information, coupled with its control group, speaks for itself.
"If a given political party is not more corrupt at the state-wide and national level, why would one or the other party be more corrupt at the local level? That statistical finding points to a disproportionate investigation of Democratic candidates and elected officials by the Bush Administration's Offices of the U.S. Attorneys."
The professor said his figures are not based upon hard data released by the Department of Justice, but said he suspects that the figures would be even more unbalanced if the DoJ actually did release the number of Democrats and Republicans it was sniffing.
"Our report records only those cases and investigations leaked to the public. If they weren't publicly reported, I don't know about it. The Department of Justice has tried to belittle it for being a Google search and for me not being a lawyer, but that's all indirect bullsh*t. They've never come up with any numbers themselves, and the reason they're not releasing their own data is probably because their data shows something even worse than mine," Shields said.
National media are catching on faster than Mississippi news sources. An Oct. 24, 2007, New York Times editorial, "Tilting the Scales of Justice," called into question the perceived alliance between the DoJ and the Republican Party. "Every time we take a look at the United States attorney scandal, more evidence emerges that Alberto Gonzales politicized the Justice Department to the point where it sometimes seems like a branch of the Republican National Committee," the editorial states.
Former Republican Attorney General Richard Thornburgh told the Oct. 11 House subcommittee that his client, Dr. Cyril Wecht, a Democratic officeholder in Pennsylvania, was indicted on federal charges by U.S. Attorney Mary Beth Buchanan, who was exclusively on the hunt for Democrats.
Thornburgh said prosecutors are using dodgy legal theories to turn "nickel and dime transgressions" into major federal felonies, similar to the sketchy charges put to Minor and Diaz. Thornburgh accused Buchanan of chasing Wecht and others, while ignoring the possible offenses of Republican officials, much as critics say Lampton has done.
Shields, who also appeared before the committee, told House members of his report revealing that the Justice Department prosecuted 5.6 local Democratic officials for every one Republican.
U.S. Rep. Robert Scott, D-Va., conceded to The New York Times that Minor's prosecution appeared political, though the flurry of letters and testimony had no effect on the joint committee's Republican members. Republicans called the evidence "ridiculous," according to The New York Times, and challenged the witnesses to prove that U.S. attorneys talked to the president or other top officials.
Shields said he shook his head at the partisanship, even in the face of the amoral breakdown of the justice system.
"It baffles me why the average Republican, like the dear people on the House committee that I talked to, are not just as concerned as the Democrats are, because when the Democrats get in power, it could be their necks in the noose. They ought to be just as concerned about the problem as anybody else, but for some reason they're not," Shields said.
Very good job, Adam. I can't wait to see the final report!
- Ray Carter
A new piece on Raw Story about Dunn Lampton, Oliver Diaz, etc., brings to mind this story Adam did last November.
They have a cool chart we didn't have, though.