No Comment — December 28, 2007, 12:02 am

Justice in Mississippi: The Judge’s Dilemma

In the last segment, we started looking at the prosecution of former Mississippi Chancery Court Judge Wes Teel. In the meantime, Judge Teel has gone to prison in Atlanta, Georgia–as the federal judge handling his case continues to fail to act on his application to be free pending appeal. We continue our probe today with a study of some of the very telling events which occurred on the periphery of the case.

Picking the Right Judge
From the analysis I provided in the last installment, it should be obvious that I think the prosecution did not have evidence linking Judge Teel to a crime. So how did the case against Teel ever get to a jury? In my view, most judges would have shut down this entire prosecution at the outset. But not the judge in this case, Henry T. Wingate, a Yale-educated Reagan appointee.

According to Teel—and he was backed up on this point by every criminal lawyer and prosecutor I interviewed in Mississippi—federal prosecutors in Mississippi get to pick the judge before whom they can bring a case. In theory the assignment of cases is random, of course. But the case assignment depends on which judge is available at the time the matter first comes up. Therefore, by picking the day on which an
indictment is returned to match the date on which the desired judge is sitting in the desired courthouse, the prosecutor gets to select his judge. Since grand jury proceedings are cloaked in secrecy, we don’t of course know what U.S. Attorney Lampton and his office did. But it’s entirely possible that they waited until Wingate was up to get their indictment returned and thereby insured that the case was assigned to him.

So who is Wingate? He’s held in generally high regard by his colleagues in the Mississippi bar, mostly on the strength of his long career as a prosecutor. But he’s also viewed as making no bones about his partisan affiliations. Wingate is a Republican. His rulings have also advanced the interests of the Republican Party in Mississippi. For instance, Mississippi has a system of “nonpartisan” judicial elections, but as
several lawyers and a local journalist told me the notion that they are “nonpartisan” is something of a joke. Henry Wingate gets a substantial measure of credit for that. Just in time for the 2002 elections, he ruled that
the Mississippi Republican Party was within its rights when it openly
endorsed judicial candidates. (Jerry Mitchell, “Since
It’s Legal, GOP Endorses Three in Judicial Races,” Jackson
Clarion-Ledger
, Oct. 23, 2002, p. 6B.) Since that time, judicial
races in Mississippi have gotten consistently more partisan and more
expensive. It struck me as I spoke with people in
Mississippi that everyone was quick to label each judge as a
“Republican” or a “Democrat” notwithstanding their nonpartisan status
in the electoral process. I can’t recall a state, other than its next-door neighbor, Alabama, where judgeships are quite so overtly politicized and partisan.

All in the Family
Wingate engaged in other conduct that raised public concerns about his
partisanship and impartiality. In March 2005, during the trial against Justice Diaz, for instance, he presided over the swearing-in of Judge Keith Starrett as a district court judge. (Jerry Mitchell, “Ruling Awaited in Diaz Trial,” Jackson Clarion-Ledger, Apr. 17, 2005, p. 1A.) Ordinarily there would be no issue surrounding one judge being present at another judge’s oath-taking, but there were some peculiar circumstances in this case. As we noted previously, Starrett is a long-time protégé of U.S. Attorney Lampton who was run as the G.O.P. opposition candidate to Oliver Diaz for his seat on the Mississippi
Supreme Court. Lampton had aggressively supported Starrett in the election, as had the principal FBI investigator who helped assemble the case against Diaz. Notwithstanding the fact that he was heavily outspent, Diaz defeated Starrett. Starrett was given the federal judicial appointment after he lost. Consequently the defendants in the case before Wingate saw themselves as adversaries of Starrett and his mentor Lampton and were deeply troubled by Wingate’s conduct and his statements. Lampton dismissed these concerns as “ludicrous.” On the other hand, a former state bar president, who asked that I not use his name, said “this just didn’t look right.”

Wingate, however, saw nothing inappropriate in attending the
ceremony for Starrett and praised Starrett as “a star in the judicial
constellation.” His praise of Starrett was lavish, saying that there was “no finer man in Mississippi.”
Wingate also referred to the function, which involved U.S. Attorney
Lampton as well as himself, as a “family event.” But when a motion was
made for Wingate to recuse himself because of his close ties with
Lampton, he refused to do so.

The Trial
Judge Wingate conducted two separate trials. The first produced an acquittal for Oliver Diaz–and as I previously noted, the fact that he was charged in the first place is among the more dramatic evidence supporting the charge that the trial was a political prosecution. Consequently, the second trial involved one less defendant. But nothing else changed between the two trials–the law was just the same.

However, Judge Wingate’s handling of the two trials was as different as night and day. In the second trial, he adopted a far more hostile posture towards the defense. A cynical observer might say that Wingate had decided that as the first case ended in a hung jury, he was going to shift the evidence admitted just enough yards to put the prosecutors over the goal line. In any event, however, the rules did not require Wingate to offer us explanations for his changed rulings, and he in fact offered none.

As far as I can see, every significant ruling by Judge Wingate in the
case broke in favor of the prosecution. And some of them were truly
breath-taking. For instance, Wingate refused to instruct the jury about the need for a “quid pro quo” –namely, that the prosecution had to demonstrate that something of value was given and received in connection with a wrongful act. This decision was an enormous windfall for the prosecutors. If Wingate had given the instruction–and in my view it was unconscionable not to give it–Teel would almost certainly have been acquitted.

But the remarkable doings at trial weren’t limited to the “quid pro
quo
” charge. Judge Wingate also announced that he would not allow Judge Teel to demonstrate that his rulings and handling of the underlying case were correct as a matter of law.

Teel had an insurance lawyer who was prepared to testify that Teel’s
rulings and the inclination he expressed in the settlement negotiation
were correct as propositions of law. The witness would say that Judge Teel correctly identified and applied existing precedent, as it existed up until the time of the Mississippi Supreme Court’s ruling. Of course the Mississippi Supreme Court issued a split decision, and if you tally up all the judges who heard the matter, you come up with more who took Teel’s view than sided with the insurance industry. Irrevelant said Judge Wingate. He barred the expert’s testimony. In Wingate’s view, apparently (because he offered no serious explanation), it was per se corrupt for Teel to sit on the case because counsel for one of the parties was a major campaign supporter. Wingate was uninterested in the fact that the Mississippi ethics rules did not concur with him on this point, that the
“conflict” was disclosed, and that the insurer never asked him to
recuse himself. Wingate was rather dramatically remapping Mississippi law as he went along.

The defendants and their counsel tell me they think that Judge Wingate’s court was very partial to the prosecutors. I agree. For instance, I have never before seen a case in which the judge allowed the jury to keep a print-out of the indictment with them from the first day of trial–but not any documents from the defense. Similarly, I have never before seen a case in which the judge undertook voir dire examination of the defendants’ witnesses outside of the hearing of the jury—that is he reviewed question by question what they would be asked and how they would answer. Wingate then effectively took a blue pencil
to their testimony, saying what he would allow them to testify to, and what they could not say. That is essentially the judge doing the prosecution’s work for it. Judge Wingate spent his entire career before he came on the bench as a prosecutor; perhaps he was reliving his glory days. But it was mighty strange conduct for a judge.

Similarly, at the conclusion of the case, the judge gives the jury a series of instructions—what they are supposed to do in preparing their verdict. In a case of this sort these instructions can be complex. Wingate read them to the jury, but he would not allow the jurors to take the instructions in writing to study them. By contrast, however, Wingate allowed the jurors to have a copy of the indictment from the beginning of the case to study and use as a roadmap in understanding the case. This was a highly irregular decision which was another windfall for the prosecutors.

Is this sufficient grounds to reverse the verdict? That will be a
question for the Fifth Circuit Court of Appeals, a court with an
overwhelmingly Republican and bitterly partisan bench. Although I believe the defendants have meritorious arguments, and that the convictions should be overturned, all of this is occuring in an atmosphere of supercharged partisan antics. I’d give the defendants long odds on that appeal.

The Real Culprit: Campaign Finance
This case brings a spotlight to the question whether it is right for a judge to receive campaign support from a lawyer and then allow him to practice in his court. I don’t think that Judge Teel should have handled the insurance case that Paul Minor argued. The proper course would have been for him to recuse himself, because in the mind of an average citizen, the case would raise fair questions about his impartiality. Is the remedy for this to throw Teel in jail as a corrupt judge?

No. Our system requires that corruption standards be applied fairly and uniformly. If the Justice Department adopts a new, never before heard interpretation and then applies it in an absurdly partisan fashion only to opponents of the Administration, then the Justice Department’s conduct is corrupt and tyrannical. It is not advancing a public interest in rooting out corruption. Instead it is investing the system with still deeper corruption, because it is politicizing the entire criminal justice system. That is precisely what happened in the prosecutions that Lampton brought and Wingate presided over in Jackson.

The real culprit is Mississippi’s system of judicial elections. I believe that electing judges is a doubtful proposition to start with, and the Mississippi case shows all the distrust and bitterness that this process can produce. Over time, the elections have become increasingly partisan, outrageously
expensive, and the rancor between the political candidates is extreme.
To win judicial office, candidates need to raise large sums of money.
And there are exactly two sources which can supply this money. One is
the community of trial lawyers who practice in the courts. The other
is the associations of trade and manufacturing interests which have a
strong stake in the outcome.

Neither group has a particular interest in justice. But striking out
one source of funding so as to leave the field clear for the other is
a very curious approach to cleaning things up. It destroys any
prospect of equilibrium and tilts the system decisively in favor of
one party. This distinctly partisan flavor of justice is exactly what
the Bush Justice Department has dispensed in Mississippi and elsewhere
around the country.

A Troubling Incentive
In my visit to Jackson, a number of prominent Mississippi
attorneys–and a couple of local reporters–brought my attention to
the same set of facts. Just as Henry Wingate was presiding as judge in
the case involving the Mississippi state judges, in which improper
influence was the core of the case, Wingate’s name was appearing in
another context. It was reported that he was under active
consideration for appointment to the Fifth Circuit Court of
Appeals.(Julie Goodman, “Potential Judicial Nominees
Studied,” Jackson Clarion-Ledger, Jan. 2, 2007, p. 1A (referring to
Wingate as having been “interviewed by the White House” on the eve of
the second trial); Ana Radelat, “GOP Chair Says He’s Not Top Pick for
Court,” Jackson Clarion-Ledger, Apr. 23, 2005, p. 1B (showing, as
first trial preparations underway, Wingate figures as prime
candidate).) “Henry Wingate isn’t interested in a lot of perks,”
one former state bar president, who requested that his name be
withheld told me, “but I can tell you for damned sure–there’s nothing
he’s wanted more in his career than an appointment to the Fifth
Circuit.”

The irony of it: the Bush Justice Department charges that campaign
finance support from the state’s leading Democratic fund raiser
corrupted local judges. The machinery of Mississippi’s court system
assigns a friendly former prosecutor Republican judge to hear the
Justice Department charges. And then the Justice Department leaks
to the local press and the legal community, and most assuredly, Judge Wingate, that it is considering just that judge for the promotion which would be the crown on a judicial career. Indeed, in all likelihood, Judge Wingate is invited up to Washington for some talks.

Of course, all eyes would understandably be on how the judge handles
this highly-charged political case. This puts the judge in an odd
position. He is handing down decisions in a high profile case in which representatives of the government department that hold the keys to his own professional future are involved as litigants. In the eyes of many, this creates a public appearance of partiality, particularly if the judge’s rulings consistently come down in favor of the government. And here they unmistakably did.

Now I’ll make an assumption in favor of Judge Wingate and U.S. Attorney Lampton that they resolutely refused to make in favor of the three Mississippi judges: I don’t think there was any sort of quid pro quo involved. That is, I don’t think anyone from the Justice Department or the White House ever told Judge Wingate “you be sure that the case with Paul Minor and the Mississippi Democratic judges goes the way we want it to go, and you can write your own ticket to the Court of Appeals in New Orleans.” Nevertheless, it does have a very unsettling feeling about it. It’s a remarkably strange thing for the Justice Department to do in a case in which it is arguing that three judges were improperly influenced by campaign finance support from a lawyer. You might say, it “doesn’t look right.” Judicial impartiality is largely a matter of appearances.

Collateral Damage
“Teel,” said Presiding Justice Oliver Diaz of the Mississippi Supreme
Court, “was pure collateral damage. What happened in his case was a
travesty.” I have come to the same view. I doubt Teel would have been
charged but for the identity of the man who helped his election
campaign with a guaranty–the leading campaign donor to the Democratic
Party of Mississippi, the prosecutor’s top target. And whether by design or not, the prosecution of this case emptied the campaign coffers of the Mississippi Democratic Party by putting out the word that donations from trial attorneys would be scrutinized and prosecuted.

The result is a Republican hold on the machinery of government in
Jackson, Mississippi. The target was Paul Minor, and yes, Wes Teel was
collateral damage. More evidence of wanton abuse by the Bush Justice
Department.

And how did this story end for Henry Wingate? Well, it turns out that
the Justice Department wasn’t really eyeing him for the Fifth Circuit
after all. He got a boost from Patrick Leahy–but evidently, the White
House and Justice Department had others in mind.

forbes-more

In “A Man for all Seasons,” Robert Bolt powerfully recounts the life of Sir Thomas More, Renaissance England’s greatest lawyer and Lord Chancellor. In the end More faced, among other indignities, doubtful charges of judicial corruption. His former clerk, Sir Richard Rich, bore false witness against him, recounting the tale of a silver chalice left by a petitioner to influence a case. (That, by the way, is not a dramatic artifice of Bolt’s. It’s contained in the biography that More’s son-in-law William Roper wrote in 1555, A Mirrour of Vertue in Worldly Greatness.)

And at the conclusion of the trial phase, as Rich leaves, More asks him “What is that chain of office about your neck?” And Thomas Cromwell answers, “Sir Richard has been appointed attorney general for Wales.” And More rejoins, “For Wales? Why, Richard, it profits a man nothing to give his soul for the whole world. . . but for Wales!” More, of course, is paraphrasing the famous passage of Matthew 16:26.

Thinking through this case of doubtful justice administered in a federal courthouse in Mississippi, More’s parting challenge resonates.

Sir Thomas More was convicted, for corruption among other charges, all falsely, maliciously and politically contrived and brought. And now another chancery judge has been put through a similarly motivated charade. He may indeed be no saint, but the greater victim of this entire exercise may not be any individual—but rather the integrity and reputation of America’s criminal justice system.

I requested comments from both Judge Henry Wingate and U.S. Attorney Dunnica Lampton. Neither has responded. If they do, I will update this post with their comments.

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