Georgia Thompson Decision:

Many thanks to Orin for pointing to this opinion; I just read it, and it's pretty shocking how aggressive the prosecution's theory was:

In 2005 Wisconsin selected Adelman Travel Group as its travel agent for about 40% of its annual travel budget of $75 million. The selection came after an elaborate process presided over by Georgia Thompson, a section chief in the state’s Bureau of Procurement. Statutes and regulations require procurement decisions to be made on the basis of cost and service rather than politics. Wis. Stat. §§ 16.70-16.78; Wis. Admin. Code §10.08. Thompson steered the contract to Adelman Travel, the low bidder, even though other members of the selection group rated its rivals more highly. A jury convicted Thompson of violating 18 U.S.C. §666 and §1341. The prosecution’s theory was that any politically motivated departure from state administrative rules is a federal crime, when either the mails or federal funds are involved. Thompson was sentenced to 18 months’ imprisonment and compelled to begin serving that term while her appeal was pending. After concluding that Thompson is innocent, we reversed her conviction so that she could be released. This opinion is the explanation that our order of April 5 promised.

Adelman Travel was the low bidder, but a low price for lousy service is no bargain. Wisconsin’s rules give price only a 25% weight (300 of 1200 points) in the selection process. About 58% (700 points) goes to service, which a working group evaluates subjectively based on written presentations. Adelman had the second-best score for service; Omega World Travel came in third. The combined price-and-service rating had Adelman in the lead. (Fox World Travel received the best service score but had a noncompetitive price.) The final 17% of the score (200 points) depends on the working group’s assessment of oral presentations. These presentations (often dubbed “beauty contests” or “dog-and-pony shows” that may reward the flashiest PowerPoint slides) need not be related to either price or the pitchman’s probable quality of service; why the state gives them any weight, independent of price or quality, is a mystery, but not one we need unravel. Adelman Travel must have made a bad presentation, for six of the seven members of the working group gave it poor marks (from a low of 120 points to a high of 165), while awarding Omega scores between 155 and 200. Thompson alone gave Adelman a higher score (185 for Adelman, 160 for Omega). Adelman Travel’s disastrous oral presentation left Omega World Travel with the highest total score.

The prosecution’s theory is that Omega should have received the contract on the spot but that for political colleagues that a decision for Omega, which is based on the East Coast, would not go over well with her boss, Pat Farley. A jury also could conclude that Thompson said something to the effect that for “political reasons” Adelman Travel had to get this contract. (Witnesses related different versions of what Thompson said, but in each account “politics” or “political” played some role.)

Thompson tried to engage in logrolling, offering to change her scores for bidders on other travel contracts if members of the working group would change their scores on this contract. Horse-trading proved to be unacceptable to the selection group, but a member other than Thompson suggested that the contract be rebid on a best-and-final basis, as state law permitted. Wis. Stat. §16.72(2m)(e), (g). Adelman Travel reduced its price, which — keeping all other elements of the score constant — left Adelman and Omega with 1027 points apiece. The tie depended on rounding to the nearest whole number. Adelman Travel’s score was 1026.6, while Omega World Travel’s score was 1027.3. After Thompson (with her supervisors’ consent) deemed the contest a draw — sensibly, as the difference was trivial compared to the amount of subjectivity and variance in the committee members’ evaluations — Thompson employed a tie-breaking procedure, specified by state law, that gave weight to items not previously figured into the price comparison and declared Adelman Travel to be the winner.

The prosecutor contends that this episode played a role in the Bureau of Procurement’s decision three months later to give Thompson a $1,000 raise in her annual salary. Post hoc ergo propter hoc is the name of a logical error, not a reason to infer causation. But Thompson does not contend that the evidence was insufficient to allow the jury to find that the raise was related to the travel contract, so we shall assume that this link has been established.

The court goes on to conclude that Thompson's actions simply aren't federal crimes. Even if Thompson violated state rules, she did so at most to satisfy her superiors and perhaps get a raise as a result — and the vague language of the statute shouldn't be read to make that commonplace behavior into a crime. "The United States has not cited, and we have not found, any appellate decision holding that an increase in official salary, or a psychic benefit such as basking in a superior’s approbation (and thinking one’s job more secure), is the sort of 'private gain' that makes an act criminal under [the relevant federal statutes].

I realize that sometimes appellate decisions don't fully explain one side of the case, even when the judges are entirely well-intentioned. Still, I suspect the facts presented at trial were pretty much what Judge Easterbrook — not a notoriously pro-defendant judge by any means — describes; and if that's so, then the prosecution seems to have been singularly ill-founded.

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