No Comment — October 3, 2007, 9:11 am

A Minor Injustice

Alexandre Dumas’s most popular novel, The Count of Monte Cristo, revolves around the narrative of Edmond Dantès, the captain of a merchant vessel who visits Napoleon on the isle of Elba and is entrusted by the deposed emperor with a letter to a dear friend in Paris. On his return to Marseilles, Dantès sets out to see his betrothed Mercédès. He is unaware that he has a competitor for Mercédès’s affections in Fernand Mondego, who has learned of his dealings with Napoleon and has denounced him to the prosecutor, Villefort. Though he is at first treated kindly by the prosecutor, suddenly Dantès finds himself gagged, put in irons and hauled off to the notorious island prison of the Château d’If, there to rot for the rest of his life. What Dantès does not know is that the letter that Napoleon entrusted to him was addressed to Villefort’s own father. Dantès therefore had evidence which would ruin the ambitious young prosecutor’s career—and thus the prosecutor struck pre-emptively, coldly, and unethically.

Dumas’s novel is one of the greatest masterworks of nineteenth century literature, combining a compelling plot with adventure, high drama, and sufficient substance to sail the ship into the literary canon. At its core is the everlasting conflict between on one side ambition, greed, and power and on the other the duties of love and justice. This struggle continues to the novel’s end.

It is a tale of Dantès’s struggle for justice against a corrupted prosecutor who did him wrong in order to advance his career. But it is also a struggle for the soul of Edmond Dantès: will he be deformed by his own desires for revenge, or will he manage to let the sunlight of justice shine into his own character?

I have often wondered how The Count of Monte Cristo could be converted into a novel set in America in the modern age. But I think I’ve found the material: the modern American Edmond Dantès is named Paul Minor, a man today in prison in the Mississippi Gulf Coast. We’ll study his tale in some depth in the coming weeks, and in it you will find the essence of Dumas’s great venture. It is a story of high politics, of prosecutors who are moved not by a commitment to justice but a craving for raw power and the advancement of careers. It is also a story of corrupt judges and corrupted justice, but in the great Dumas tradition, we will learn that the stories of corrupt judges and justice are not, in the end, those spun on the surface and fanned in the newspapers—for there is a true inner story which is quite different, involving a reversal of expectations.

And we lay this tale on the sandy beaches of the Gulf of Mexico, a stone’s throw from the great creole metropolis of New Orleans. In that venue is a point of historical intersection. We should remember that the great novelist Alexandre Dumas père sprang from this very environment. He was a creole, his grandfather had served as the French quartermaster general in Haiti, and his grandmother Marie-Césette was a Black slave of legendary beauty. The story we will cast here is of a different time, a different culture, woven in a different language. But judge for yourself: is it truly so different?

In any event, I will take Dumas as my lodestar for this voyage. And as we pursue it, I remind you of the words that the abbé Faria whispers to Edmond Dantès as they communicate in the bowels of the Château d’If:

Si vous voulez découvrir le coupable, cherchez d’abord celui à qui le crime commis peut être utile! — That if you seek to discover the culprit, seek first to discover the person to whom the perpetration of that crime could be in any way advantageous.

As in Dumas’s tale let us consider that the crime may not be what the public hears as a crime—the charges leveled at the prisoner. The crime may turn out to be the prosecutor’s conduct in leveling these charges. As for Dumas, the question of who benefits from the corruption of the justice system is the key to understanding our tale. Thus I propose to start with the answer. Who profited from the injustice?

Setting the Scene
In 2000, the U.S. Chamber of Commerce launched a major effort to roll-back class-action lawsuits and other procedures that were anathema to its major corporate constituency. It identified a half-dozen states as particular problem cases in this regard: Illinois, Mississippi, Washington state, and West Virginia were high up on its list. Its tactics were well described in an important article by Jim VandeHei in the Wall Street Journal.Jim VandeHei, “Political Cover: Major Business Lobby Wins Back Its Clout By Dispensing Favors–Some Members Can Hide Behind Chamber’s Name To Pursue Private Ends–Targeting `Unfriendly’ Judges,” Wall Street Journal, Sept. 11, 2001, p. A1. The Chamber’s representatives, led by its powerhouse president, Thomas Donohue, solicited major corporate funders who were plagued by class-action suits, tort liability, and high damage awards, and asked them to fund a significant election effort designed to defeat attorneys general and judges who were viewed as friendly to the trial court bar. Not only would the corporations be anonymous in this endeavor, but the Chamber would do its best even to obscure its own identity and involvement.Public Citizen, Tom Donohue U.S. Chamber of Commerce President Oversees Renegade Corporations While Pushing for Limits to Corporate Accountability, Feb. 2005.

As the Chamber pursued its furtive project, it worked hand-in-glove with local Republican parties and networks, channeling its money into the best-bet races, usually those in which a strong Republican was challenging a Democratic incumbent. It aligned itself with a cast of private-practice lawyers close to the Bush Administration and the Bush Department of Justice; several of these lawyers were to figure in short order as Bush’s prosecutors and judicial nominees, or as Republican members of Congress.

Mississippi was one of the Chamber’s battleground states. It’s a small, rural, poor state—at times ranked the poorest in the nation. But from the perspective of corporate interests concerned about “tort reform,” “excessive jury awards,” and class actions, Mississippi was close to ground zero. In no other state had the trial bar scored such stellar successes. The Mississippi plaintiff’s counsel were at the heart of a massive legal war waged on big tobacco. They had been involved in major suits involving Ford, Firestone, and a slew of other leading manufacturers and insurers.

The Mississippi trial lawyers, and the judges close to them, made a natural target for the tobacco industry and other major corporate players. The Chamber provided the means of attack. The Chamber flooded Mississippi’s judicial races in 2002 with about one million dollars. Trying to disguise the source of this money, they channeled it through the just-created Law Enforcement Alliance of America (LEAA). LEAA prepared and ran expensive, professionally-produced attack ads, although the ad time was largely booked by the Chamber of Commerce itself. Newspapers looking into LEAA found the Chamber’s fingerprints at every turn. Michael Orey, “Business Targets Judicial Race in ‘Tort Mecca,’” Wall Street Journal, Oct. 30, 2002; Robert Lenzner & Matthew Miller, “Buying Justice; For Years Trial Lawyers Owned State Courts. Now Big Business Is Striking Back,” Forbes, July 21, 2003.

By national-campaign standards a million isn’t much, but for Mississippi it was an unprecedented sum. As the money came in, the incumbent judges and their allies were startled. They believed that the Chamber was violating Mississippi election laws, and they were convinced that the massive infusion of cash would essentially buy the state’s judicial elections. They set out to counter it in two ways: first they secured injunctions from Mississippi state courts to block the advertising from running. The courts in Mississippi agreed: the Chamber had engaged in a subterfuge which violated Mississippi disclosure requirements, so the advertisement was enjoined.

Enter Nino
But then the Chamber of Commerce procured its deus ex machina: it made an appeal directly to Supreme Court Justice Antonin Scalia, the justice responsible for the Fifth Circuit, which included Mississippi. And Scalia dissolved the state court injunctions, authorizing the Chamber’s attack ads to go forward. The Chamber was represented in this process by a Mississippi Republican named Michael Wallace. (President Bush subsequently nominated Wallace to serve on the Fifth Circuit, but he had to withdraw when the American Bar Association found him to be “unqualified.”Charles Lane, “Nominee Rated ‘Unqualified’ by ABA Panel,” Washington Post, May 11, 2006.) A lawyer in the campaign, who asked that his name not be used, described to me his astonishment:

One afternoon I got a call from a clerk for Justice Scalia, saying, ‘The justice is about to rule, and he wants to know if you want to be heard.’ I was astonished. I knew nothing about this application, but before we could even start to think about it, it was over. Scalia decided, without hearing us. He dissolved the Mississippi injunctions on the grounds that the Chamber’s ads were protected speech, not political advertising. And all this was done on the basis of the Chamber of Commerce’s direct approach to Scalia.

Scalia’s actions amounted to an extraordinary interference with the state rules governing the electoral process, particularly curious in light of Scalia’s commitment to a “new federalism” in which the role of the states in decisions about their own internal affairs was said to be enhanced. However, Scalia’s “new federalism” is subject to a very important corollary: it recedes whenever it clashes with the electoral interests of the G.O.P. The most striking demonstration of Scalia’s flexibility can be found in his posture in the Bush v. Gore ruling which threw the 2000 presidential election to Scalia’s friend and patron, George W. Bush. (Scalia’s own son had been involved in advising the Bush campaign, and no sooner was the new administration installed than his son landed a job as the Solicitor of Labor, the senior lawyer for the Labor Department.Paul Krugman, “The Sons Also Rise,” New York Times, Nov. 22, 2002.)

Lawyers in Mississippi bristled over another aspect of Scalia’s behavior. Of all sitting justices, none comes within striking range of Scalia when it comes to accepting speaking engagements and trips which effectively offer free vacations at the sponsor’s expense. Many of Scalia’s travels are linked to persons and organizations closely tied to the Republican Party, most notably the Federalist Society and a number of prominent Republican donors. Scalia travels regularly down to the Mississippi delta region to go duck and turkey hunting, they note.

One such incident which he undertook jointly with Vice President Cheney received wide media attention when Scalia refused to recuse himself from decision of a critical matter involving Cheney, then provided a vote in Cheney’s favor.Eight of the ten largest newspapers in the U.S. called on Scalia to recuse himself. He refused, publishing a 21-page memorandum defending his position. Prof. Monroe Freedman reviewed the Scalia memo in a law review article which concluded that Scalia’s arguments were “specious,” a view widely shared in the legal community. “Duck-Blind Justice: Justice Scalia’s Memorandum in the Cheney Case,” Georgetown J. Leg. Ethics, Fall 2004.

But several Mississippi lawyers have pointed out to me that on his duck-hunting trips Scalia is hosted and entertained by the same figures who were aligned in support of the Chamber of Commerce and its judicial election efforts. One of his regular shooting partners has been Mississippi Judge Charles Pickering, one of the Chamber’s favorite candidates, and Pickering’s son, a Mississippi congressman with a near-perfect record in supporting the Chamber’s program.

In 1993, Scalia authored an opinion in which he said that the Minnesota legislature and not judges should be making decisions about redrawing electoral districts. But when it came to Mississippi, and a plan which presented a serious problem for Judge Pickering’s son, another hunting partner of Scalia’s, the justice had a sudden and dramatic change of view. He decided in favor of a plan crafted by a group of Republican federal judges.Thomas B. Edsall, “Supreme Court Rejects Redistricting Appeal: Democrats Accuse Judges, Justice Dept. of Favoritism in Mississippi Conflict,” Washington Post, Mar. 2, 2002. (Scalia is also linked in these reports to Republican Mississippi Judges Henry T. Wingate and David C. Bramlette, each of whom played a critical role in the Mississippi drama surrounding the judicial elections and the prosecutions which emerged from them.)

Even Mississippi’s rock-ribbed conservative press was scandalized by Scalia’s antics. The Jackson Clarion-Ledger editorialized: “Small world, isn’t it? . . . Even a gesture toward impartiality,” they wrote, would have stopped Scalia from ruling on the case involving his ‘hunting buddies. “Justice Scalia should have recused himself from Tuesday’s decision.”“Redistricting: The partisan games continue . . . ,” Jackson Clarion-Ledger, Feb. 28, 2002.“It’s hard to view Scalia as impartial,” one Mississippi lawyer told me. “He looks like a fully participating member of the enemy camp, benefiting from their largesse as he goes along.”

The Bush Justice Department had no issues with Justice Scalia’s participation in these cases. It was delighted to be able to count on his vote. But when it came to ethical issues surrounding judges in Mississippi with a reputation for being pro-plaintiff, suddenly the Justice Department’s view of ethics and the law changed quite dramatically. With Scalia backing up the Chamber’s campaign by dissolving the Mississippi court orders, the incumbents had only one other option: to scramble quickly to raise funds to match the Chamber’s spending and book their own ad time. They didn’t match the Chamber, but in the end, the incumbents were able to field their own advertising–not as professional as the Chamber’s, and not as much. But when the votes were counted, the incumbent slate of judges was largely returned, and the Chamber’s campaign in Mississippi was a surprising failure.

The Target
One man, Paul Minor, had stood in resolute opposition to the Chamber’s onslaught. A trial lawyer from the Gulf Coast area, Minor emerged as one of Mississippi’s wealthiest citizens on the strength of fees earned successfully battling big tobacco. The son of a prominent journalist known for his zealous advocacy of civil rights in the heyday of the movement, Minor served in Vietnam as an army intelligence officer, then came home to become a lawyer. He was a co-founder of South Mississippi Legal Services Corporation and a champion of the cause of the poor and racial minorities across the state, and he was a former president of the Mississippi trial lawyers association.

Minor was also an engaged partisan. He was the leading donor to the Democratic Party and a key supporter of a number of judges in contested races. As the Chamber campaigned for “tort reform,” Minor crisscrossed the state pointing to powerful out-of-state corporate interests that were behind the campaign, starting with big tobacco.Jerry Mitchell, “Diaz Case Adds Fuel to Election Campaigns,” Jackson Clarion-Ledger, July 30, 2003. Today, because he took steps to counter the Chamber’s Mississippi electoral scheme, he is serving an 11-year sentence, has been fined $2.7 million, and was ordered to pay restitution in the amount of $1.5 million. Meanwhile, the Chamber of Commerce campaign, which in the view of Mississippi officials had been crafted, assembled and pursued in flagrant violation of Mississippi law, was not simply ignored, but vigorously defended as protected First Amendment “free speech.” This was a very strange, and flamboyantly partisan, view of the interests of justice.

The process that was followed matches up with Karl Rove’s master plan for reshaping the judiciary in Alabama for the benefit of big business, which Rove and his friends William Canary and Toby Roth had brilliantly implemented ten years earlier. The original goal had been to replicate the Alabama strategy next door in Mississippi–but after the effort failed, the objective appears to have changed; the goal was now to punish the Mississippi trial lawyers who took on the Chamber and won, and to dry up the campaign funding resources that were fueling the opposition to the Chamber.

Suddenly the Mississippi trial lawyers and their judicial allies found themselves facing an even hungrier and more powerful foe: the Bush White House’s Department of Justice. The absurdities of the Justice Department’s conduct were not lost on many observers. Jackson Clarion-Ledger editor David Hampton observedJackson Clarion-Ledger, “The Minor Case,” Sept. 7, 2007.:

I am still not sure what they did was illegal under the weak laws governing such activities, nor am I sure the government really proved its case. It did to the jury, so that’s that, but I have my doubts as an observer. Didn’t convince me.

It is my opinion that there was too much of a political smell to this case. The extent the Republican Justice Department went to in going after a wealthy influential Democratic trial lawyer just seemed over the top. I’ve never seen anything like it. It was extraordinary.

Within a year, the Democratic Party of Mississippi saw its war chest dry up, and by the 2003-04 election cycle, Democrats had raised $450,000–compared to $4 million for the Republicans. Republicans were swept back into control of state offices, and, beginning in 2004, the new Republican administration in Jackson began quickly enacting the Chamber of Commerce’s entire agenda, starting with “tort reform.”

Coming next: Why Paul Minor?

Evan Magruder contributed to this post.

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