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Sunday, April 22, 2007

Law - Still more on: Injustice in Wisconsin, bad enough to shock 7th Circuit panel; Plus, more on Indiana Headnotes

Updating this ILB entry from April 11th, about former Wisconsin state purchasing supervisor Georgia Thompson , who was freed from prison earlier this month after being acquitted by a panel of the 7th Circuit (see also this April 9th entry), recall that the panel decided the case and ordered that Ms. Thompson be released from prison that very day, with an "opinion to follow." Friday the Court issued that opinion:

U.S. v. Georgia Thompson , written by Chief Judge Easterbrook. Here is some interesting language from the opinion:

Section 666 [of a federal criminal statute] is captioned “Theft or bribery concerning programs receiving Federal funds”, and the Supreme Court refers to it as an anti-bribery rule. * * *

Faced with a choice between a broad reading that turns all (or a goodly fraction of) state-law errors or political considerations in state procurement into federal crimes, and a narrow reading that limits §666 to theft, extortion, bribery, and similarly corrupt acts, a court properly uses the statute’s caption for guidance. * * *

Sections 666 and 1346 have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law. Courts can curtail some effects of statutory ambiguity but cannot deal with the source. This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting ambulatory criminal prohibitions. Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch.

Thompson’s conviction is reversed, and the case is remanded with instructions to enter a judgment of acquittal.

Read coverage of the decision here, from the April 21 Wisconsin State Journal Some quotes:
The prosecution never showed that Thompson clearly gained by her actions or even knew that her superiors favored Adelman Travel Group of Milwaukee for any improper reasons, the judges found. Prosecutors never eliminated the possibility that Thompson pushed for Adelman because of more innocent factors like cost or its status as a Wisconsin firm competing against an out-of- state company.

"An error - even a deliberate one, in which the employee winks at the rules in order to help out someone . . . is a civil rather than a criminal transgression," the opinion reads. "Likewise the sin is civil (if it is wrong at all) when a public employee manipulates the rules, as Thompson did, to save the state money or favor a home-state producer that supports elected officials."

Thompson, who maintained her innocence throughout the case, has not spoken publicly about her acquittal. After her conviction of mail fraud and misapplication of funds last summer, Thompson was sentenced to 18 months in federal prison and served four months.

Thompson's attorney, Stephen Hurley, said the decision ensured that public workers wouldn't be accused of fraud with little evidence.

"I think all state employees should breathe a huge sigh of relief," Hurley said.

Here is the story from the Milwaukee Journal Sentinel. Some quotes:
Georgia Thompson, the state worker convicted - then cleared - of improperly steering a contract to a politically connected travel company, might have made a mistake, but she didn't commit a federal crime, according to a Court of Appeals opinion released Friday.

Also Friday, it was announced that Thompson, 57, will start a new state job Monday at her old salary of $77,300 a year and get $67,161.46 in back pay.

The 14-page opinion, written by 7th U.S. Circuit Court of Appeals Chief Judge Frank Easterbrook, came two weeks after the court's searing rebuke of the government's case at oral arguments in Thompson's appeal. The court on April 5 took the unusual step of immediately reversing her conviction and freeing her from federal prison, where she had spent almost four months of an 18-month sentence. The court also announced it would explain its decision in a later opinion. * * *

Two legal experts said Easterbrook's opinion wasn't as heated as the comments at oral argument, when Wood called the evidence "beyond thin." Two of the three judges were appointed by Republicans, one by a Democrat.

"This is a much more measured analysis of the issues," said associate law professor Michael O'Hear of Marquette University. "The court thought no harm was done to the state of Wisconsin and if anything the state benefited from what Georgia Thompson did."

Thanks to How Appealing for the links to the recent coverage.

Comment on Reliance on Captions and Headnotes: As an aside, I was intrigued by the 7th Circuit's reliance here on the caption to a federal statute for guidance to its interpretation.

In Indiana, IC 1-1-1-5, concerning construction of statutes, provides at subsection (f):

(f) The headings of titles, articles, and chapters as they appear in the Indiana Code, as originally enacted or added by amendment, are not part of the law and may be altered by the lawful compilers, in any official publication, to more clearly indicate content. These descriptive headings are intended for organizational purposes only and are not intended to affect the meaning, application or construction of the statute they precede.
As for the headings to individual sections of the law, such as those that might appear in a private publishers' edition, or in the version of the Indiana Code the Indiana Legislative Services Agency posts online, these descriptive section headings are written by the publishers' or LSA's staffers, and certainly are not part of the law. I believe the introductory text to the LSA's printed edition to the Indiana Code stated this, but this material is not available online.

Perhaps this is not the case with the federal statutes. But a quick google search turned up this 1998 1st Circuit case, Brady v. Credit Recovery, which appears to indicate that at least some federal statutes forbid reliance on captions:

First, defendants argue that we need not resort to ordinary usage because the FDCPA does in fact define the term "disputed debts." In support of this contention, defendants point to § 1692g(b) which is captioned "disputed debts." See 15 U.S.C. § 1692g(b). Although we cannot assume that § 1692g(b) defines this term simply because of its caption, see Pub. L. 90-321, § 502 (May 29, 1968), 82 Stat. 146, 147, reported as a note following 15 U.S.C. § 1601 (forbidding reliance on captions), defendants contend that the text of § 1692g(b) provides a definition of "disputed debts" that carries over to § 1692e(8). We disagree.

[Updated - More on Indiana Headnotes] - I have now located the introductory text, included in the 2004 CD edition of the Indiana Code, but not directly accessible. This is the same type of language that appeared in the printed edition, when that was generally available:

As an aid to the reader, the Indiana Legislative Council authorized the editorial staff of West Group to devise and include in the Indiana Code headnotes for each statute section amended or enacted after 1998 through 2001. The headnotes after 2001 have been prepared by the Legislative Services Agency.

These headnotes provide a quick reference to the contents of each section and are set in a distinctive typeface together with the full citation to the section immediately preceding its text. For example: 5-4-4-10 Taxation of costs

Bold type is used to indicate that these headnotes are not part of the law. Section headings in the Indiana Code have been revised in accord with amendments made during the 2004 regular session and special session. In the occasional instance in which a law as enacted contained a section headnote, the enacted headnote is printed with the text of the statute in the same typeface as the text.

Posted by Marcia Oddi on April 22, 2007 08:14 AM
Posted to Ind. (7th Cir.) Decisions