Sunday, July 29, 2007
Washington Post's Dan Eggen and Amy Goldstein present yet another lead article on Attorney General Alberto Gonzales, and like some of the others before this one, it does not bode well for him. The article, titled Gonzales Truthfulness Long Disputed, traces his history in a position associated Bush both before and during this Presidency. It contains criticisms from several key Republicans.
But irrespective of whether Gonzales has been candid with Congress, it is important to consider whether the standard he applies to corporate CEOs is being applied to him. Was there wrongdoing occurring under his watch? Was he the responsible corporate officer? Did he have knowledge and fail to take action? Should he have had knowledge? Did he fail to secure the appropriate information to make certain that those under his watch were complying with the law? Did he have in place an appropriate compliance program?
It is also interesting to examine the Office of the Attorney General and ask whether this office has become an arm of the President, as opposed to an office that operates independently above the political system. Are we seeing the independence of this office slowly diminishing from the days prior to and including AG Janet Reno, to AG John Ashcroft, and now AG Alberto Gonzales.
The 11th Circuit issued an opinion affirming the conviction of former Georgia State Senator Charles Walker. The court rejected defense arguments that “(1) during jury selection, the district court erroneously disallowed four of Walker’s peremptory strikes after finding a Batson violation; (2) honest services mail fraud was improperly charged in the indictment and not supported by sufficient evidence; (3) prosecuting Walker for mail fraud violates basic principles of federalism; and (4) various sentencing enhancements were improperly imposed by the district court.”
Batson issues are not usually the focus of a white collar case. But clearly the facts of this case present an interesting twist to picking a jury in white collar, as well as other criminal matters. The trial court found that four of defense counsel's strikes should be reseated. The trial court, however, failed to give defense counsel additional strikes, perhaps in part because potential jurors had been dismissed. The appellate court stated:
"Replacement strikes would have required that the court start anew the next day, at considerable time and expense. Although the better practice in certain circumstances is to begin afresh with a new venire, we cannot say that the district court abused its discretion here."
The 11th Circuit notes that the lower courts are split on whether one is entitled to additional strikes following a Batson challenge that is upheld. But whether this will be enough to get a Supreme Court glance is unknown. The 11th Circuit was troubled by the record on the strikes, but provided deference to the trial court in its judging of the facts surrounding these peremptory challenges.
This was also a case in which prosecutors had brought a mail fraud count under section 1346, the intangible right to honest services.