No Comment — February 25, 2009, 4:43 pm

The Absentee School Teacher

When Justice Antonin Scalia argued for the Supreme Court to visit the legality of the rampant and plainly abusive prosecution of “honest services fraud” cases earlier this week, he posited an example of the utterly preposterous sort of construction that a misbehaving prosecutor might put on the statute. Imagine, he said, a prosecution brought against a government employee for absenteeism. Historically that would be handled under employment law with bad evaluations, fines, and possibly even dismissals. But, Scalia posited, under the ridiculous abuse of the “honest services fraud” statute a prosecutor might actually attempt to charge the absentee employee with criminal fraud.

Was Scalia really just speculating? I don’t think so. I suspect that he had learned about the Sue Schmitz case in Alabama. The case, which I profiled here, went to trial once, producing a hung jury. It was tried a second time, and this time U.S. Attorney Alice Martin secured a conviction. Sue Schmitz, a 64-year-old Alabama social studies teacher who has won lists of awards for her efforts on behalf of underprivileged and disadvantaged children, was convicted by a jury in Decatur, Alabama.

Prosecutors accused Schmitz, a Democrat, of using political connections to create a community relations job with the Community Intensive Training for Youth program and getting $177,251 in pay while doing little or no work from February 2003 to October 2006.

Schmitz testified at trial that she did work for the program, including garnering support for the CITY program among corporate donors and legislators. She also said she got little direction or cooperation from supervisors or CITY site managers.

“She’s just very disappointed,” and was crying, said defense attorney Buck Watson.

Schmitz remains on bond until her sentencing, which U.S. District Judge David Proctor said would be held in about 90 days.

Why was a case involving a social studies teacher who underperformed her lesson plan on a $50,000-a-year teaching contract being charged as a serious fraud in a federal court? Sue Schmitz is a state legislator and a Democrat. The case was commenced just as the state’s Republican governor, who had railed for years against legislators who “double dipped” by taking employment in the state education system announced his push to take control of the state legislature for the G.O.P. What the governor, the prosecutors, and the Republican-leaning newspapers in Alabama consistently forget to mention is highlighted by the Huffington Post’s David Fiderer:

What they aren’t talking about is what Sue Schmitz earns at her day job. As a member of the Alabama House of Representatives, her compensation, as set by the Constitution, is $10 a day. (Alabama’s 175,000-word Constitution, the longest in the world, is known as a notorious barrier to political reform. In 2004, voters defeated an amendment that would have removed the Constitution’s references to segregation.)

The removal of “double dippers,” which Bush Justice Department prosecutors are still laboring mightily to criminalize, would have the effect of putting the legislature in Republican hands. So, in this case, a bizarre new construction put on the “honest services fraud” statute matches up perfectly with the electoral plans of G.O.P. in Alabama. Governor Bob Riley was heard crowing about the victory:

“It proved that Montgomery insiders turned the state’s two-year college system into a no-work jobs program for legislators,” he said. “It proved that taxpayer dollars intended for educating students were, instead, used to bankroll a job for a well-connected legislator, a job for which she never showed up for work. It proved that those who ran the program feared reprimanding her precisely because she was a legislator who could use her influence in Montgomery to hurt them.”

Riley has reason to be enthusiastic–the conviction of Schmitz automatically resulted in the forfeiture of one Democratic seat. Change may have come to Washington, D.C., but the spirit of Karl Rove continues to run things in the trenches of Alabama.

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