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Dead Constitution See other Dead Constitution Articles Title: Experts say ruling hits prosecutor's credibility (BUSHITE U.S. ATTORNEY AT WORK) Experts say ruling hits prosecutor's credibility JASON STEIN 608-252-6129 A federal appeals court last week slapped down a controversial fraud conviction with a swift, blunt decisiveness almost never seen in the legal system. The ruling struck a blow to the credibility of the Milwaukee-based federal prosecutor who brought the case, and to other investigations related to campaign fundraising by Democratic Gov. Jim Doyle, said former prosecutors and other legal experts. The investigations have not led to any charges against Doyle or his aides. The federal prosecutor, who was appointed by President Bush, and the state attorney general, a Republican, say they are continuing their probes. But the appeals court has sent a very clear message that prosecutors will need to bring much stronger cases if they expect charges to stick, experts said. A federal spokeswoman acknowledged that the appeals court's forthcoming written decision may affect the handling of the other investigations. Rare ruling The three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago on Thursday overturned a jury's conviction of state purchasing agent Georgia Thompson on charges that she illegally steered a state travel contract to a company whose officials donated to Doyle. Former U.S. Attorney Frank Tuerkheimer said the case stood alone in his more than four decades in criminal law. The ruling was highly unusual, the UW-Madison law professor said, both for the way the judges ordered Thompson released from a federal prison and for the speed with which they did it. "I can't think of any case where an appellate court after hearing oral arguments ordered the release of a person who's confined" the same day, said Tuerkheimer, who was a U.S. attorney under Democratic President Carter. A written decision, which will explain the judges' reasoning, has not yet been issued, but their statements during Thursday's hearing suggest they felt the case against Thompson was threadbare at best. Madison defense attorney and former Assistant U.S. Attorney Chris Van Wagner said he had never seen a case like this one and said the judges' decision reflected a strong consensus that prosecutors had no case. "It will be strongly worded," Van Wagner, a Republican, predicted of the judges' written decision. "It's a statement to the government that you never had enough to get out of the starting gate." Donald Downs, a political science professor who teaches criminal law at UW-Madison, said he could only think of one other case in which an appellate court had simply freed a defendant rather than sending the case back to a trial court. The decision certainly will make it more difficult for U.S. Attorney Steven Biskupic in Milwaukee to continue his investigation of the Doyle administration, Downs said. "It's a slap at the prosecution, you better believe it," Downs said. "It's embarrassing." Adding power to the ruling, Tuerkheimer said, was the fact that it was made by a court with two Republican appointees and one Democrat. Judge Frank Easterbrook was appointed by President Reagan, Judge William J. Bauer by President Ford and Judge Diane Wood by President Clinton. "This is not recognizably a pro-defendant panel. If anything, it's pro-prosecution," Tuerkheimer said. Political effects Experts said the Thompson case wouldn't necessarily have a direct legal bearing on the federal probe into Doyle fundraising. But the political effects were clear, as Democrats fired back at Republicans they said had unfairly used the case to paint Doyle as corrupt during his re- election campaign last year. Some raised the possibility that the prosecution by Biskupic, a Bush appointee, was politically motivated. Republicans used the Thompson conviction against Doyle in last fall's election. State Democratic leaders pointed out this week that there is evidence the Bush administration has fired federal prosecutors for failure to pursue the White House's political agenda. Last month, Dan Bartlett, a counselor to Bush, said that the White House had received complaints about fraud allegations in Wisconsin and other places. He noted that those complaints didn't result in firings in Wisconsin. Biskupic has said he wasn't pressured by superiors in Washington to investigate public corruption here. 'Partisan attacks' In essence, the court in the Thompson case found that no reasonable jury should have convicted her based on the evidence presented at her trial. David Deininger, a former Wisconsin state appeals judge for 11 years, said judges rarely second-guess juries. "The law accords an extreme amount of deference to a jury," he said. Biskupic has 14 days after the court's written decision is issued to decide whether to ask for a rehearing in the case. Spokeswoman Michelle Jacobs has said that's unlikely but also said Biskupic needs to see the court's reasoning. "We have to wait and see what the decision is," Jacobs said Friday. Thompson's lawyer, Stephen Hurley, said he hoped the judges' decision would clarify what could and couldn't be prosecuted under the law Biskupic used against Thompson, saying that law "has not been a model of clarity." On Thursday, Doyle slammed the accusations against both Thompson and himself as "sensationalized media reports and partisan attacks." The governor said he would leave it to others to evaluate Biskupic's handling of the case. "But I will say this: It's obvious an innocent woman was used as a political football for political reasons," he said. Jacobs noted Biskupic had prosecuted both Republicans and Democrats. Troha case different Biskupic and state Attorney General J.B. Van Hollen are pursuing investigations into both the travel contract case as well as several others involving Doyle contributors. Jacobs said the appeals court's written decision might provide some guidance on proving fraudulent intent that might affect decisions in those investigations. Last month, Kenosha casino developer Dennis Troha was indicted on fraud charges related to donations to Doyle's campaign. Jacobs said that case wouldn't necessarily be affected by Thursday's decision, since the Troha charges were based on a different part of the federal mail fraud law than the Thompson charges. Hurley agreed. "This should not affect the substance of any charge against Mr. Troha," Hurley said. Troha spokesman Jeff Fleming didn't dispute that. "The cases are different and it would not be appropriate for me to draw any conclusions," Fleming said. Evidence 'beyond thin' In Thompson's case, prosecutors argued there was a cozy relationship between Doyle and top officials of the Adelman Travel Group of Milwaukee, who had donated $20,000 to Doyle's campaign. Biskupic argued that to please her superiors Thompson had successfully argued for Adelman as part of a purchasing committee awarding a state travel contract worth up to $750,000. But Hurley argued that Thompson had been unaware of the donations to Doyle and that prosecutors had not shown any evidence that she was aware of them or had been pressured by her superiors to help Adelman. In questioning during oral arguments Thursday, the appeals judges ripped prosecutors, with Judge Wood saying at one point that their evidence was "beyond thin." Tuerkheimer said that the issue was a common one in white-collar crime cases - the need to prove that the defendant's actions were made with criminal intent. "White-collar cases tend to focus on state of mind rather than" simply a defendant's actions, he said. A final factor that was certainly part of the judges' mindset was the fact that their court regularly hears cases of high-dollar graft and corruption out of the Chicago and Gary, Ind., areas that go far beyond anything alleged in the Thompson case, Tuerkheimer said. "In comparison to that, this is absolute kindergarten stuff," he said of the allegations in the Thompson trial. In freeing Thompson, the court acted so quickly, Tuerkheimer said, because trial Judge Rudolph Randa in Milwaukee had taken the unusual step of ordering Thompson to prison in November to begin her 18- month sentence without allowing her to remain free during her appeal. Randa was appointed a judge in 1992 by the first President Bush, a Republican. That forced the appeals court judges to act quickly to end what they believed was unjust imprisonment, Tuerkheimer said. State Journal reporter Ed Treleven contributed to this report.
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This is the first time I remember seeing a federal appeals court do something like this.
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