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.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].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.
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.
Related Posts (on one page):
- Georgia Thompson Decision:
- Georgia Thompson Decision:
You've linked to a cached copy of the opinion that will disappear shortly. This is the correct link.
From a looks of it, J. Randa's a "company" man -- i.e., he may have been acting under the mistaken (and good faith) belief formed from years of local and state service that the taxpayers are entitled to politic-less decision making.
Interesting.
In the opinion I was interested in the expression "to cabin the reach of the statute". It is easy enough to understand (I assume it means "to restrict") but I've never seen this expression before. Have others?
Well, count me in. I'm not quite sure whether to file this case under the same heading as the Duke LAX guys, or whether it more properly belongs under the "Criminalization of Everything", but either way I think the appeals court did the right thing, and thanks to Orin for bringing this case to our attention.
Perhaps someone confused the Eastern District of Michigan, where this prosecution originated, and the Western District of Michigan, where U.S. Attorney Margaret Chiara was fired.
We provincials on the west coast often confuse those silly states in "flyover country." So that's what I will blame my mistake on--or maybe I'll just blame it on my general lack of reading comprehension skills.
Either way, my apologies to people in both states who may have been offended by being confused with the OTHER one. However, this doesn't mean I will ever root for either the Packers or the Lions.
Regardless of why the prosecution brought the case, I am interested in how it was able to get a conviction in such a weak case. Was the defense counsel incompetent? I haven't read anything about that. Or was it just that the prosecutor was able to get the case to a jury, and when that happens anything can happen?
I agree with Easterbrook, the prosecution was overly aggressive, and we don't need to criminalize politics and government decisionmaking any further. However, it looks like what happened is that the prosecutor and the jury thought that word came down that Adelman ought to get the contract because of their support for the administration, and that Thomas was given a bonus for working it out so that they got the contract, despite their ineligibility under state law. Clever use of 666 and 1341 gave them a basis to prosecute. I don't think the interpretation is that unreasonable. Easterbrook's main complaint is that those statutes are too broadly worded and that nobody would expect prosecution on the facts in evidence. (He notes other problems as well, of course.) If this was totally out of line, Easterbrook would have clearly said so.
Since the statement was short, I'll reproduce it here for ease of comment.Frankly, it doesn't inspire confidence that he brought the prosecution in good faith. He's gratuitously made his whole statement a defense of his good faith instead of just saying he disagrees with the appellate court on the merits. He also suggests that he has other similar cases either already filed or ready to file.
Sounds like Nifong's slightly smarter twin to me.
While this is true, it's also true that the investigation and prosecution were supported by the state's AG and the County Attorney, both of whom were Democrats. The fact that these two Democrats actively participated in the prosecution makes it a little harder to believe that the prosecution was politically motivated, doesn't it?
Just from what I've heard here if I had to guess I would think that at trial the prosecution offered some suggestive evidence that their was some political pressure coming down from on high to choose this particular travel agency but that they had difficulty finding anyone up the chain they could convict of anything. Thus they charge the guy who actually made the choice, and the jury, ignoring subtle legal distinctions convicts him for being involved in what to them smells like a corrupt deal. On appeal to the federal judge he notes that the defendant received no political gain and at most the court found that she favored on firm over another based on her desire to please her superiors. However, on appeal the court notices that it is a misapplication of law to convict this woman without sufficient evidence to find that she knew the motivation behind her employer's preferences.
While I don't think this individual should have been brought to prosecution either I am sympathetic to the prosecution's position if this was not politically motivated. One might consistently see questionable behavior based on political campaign donations but, assuming everything is kept very implicit never be able to convict anyone. So long as the boss only gives rewards after the fact for people who favor people who make large corporate donations it will be impossible to ever prove he has the requisite intent to be guilty of anything and this decision makes it virtually impossible to convict the person who actually does the decisions making as you would have to establish that they not only were aware that the boss would receive political benefit but that this was the reason for their bosses preference.
Then again maybe this case was just all political.
This case was reversed on the basis of insufficient evidence, so double jeopardy bars a retrial. I.e., you couldn't remand with instructions that the court hold a new trial at which the state presents better evidence.
This is different from a reversal on the basis of, say, improperly admitted evidence, where the court is permitted to hold a new trial absent the improperly admitted evidence. Note though, that in many cases sent back to the trial court due to inadmissible evidence, the prosecutor will elect not to retry the case, since he may not believe that there is enough evidence without the excluded evidence.
The fact that someone other than the prosecuter used the conviction as a politcal point after the fact is not proof in any way that the prosecution was brought for political reasons.
1. The USA for Wisconsin was on the dreaded firing list. USA-W apparently put there due to complaints from state GOP to Rove.
2. The USA-W then brings this incredibly weak case.
3. This case is used as political ammunition by state GOP in a 'swing state' as identified by Rove.
4. USA-W is not one of the USAs purged.
Now then,
a. Correlation does not imply causation.
b. Where there is smoke, there is not a fire.
however, I would certainly investigate such a chain of coincidences.
From the article:
Most of the column focuses on whether the prosecutor was acting in good faith or not:
-Nick (Madison, Wis.)
1. The USA for Wisconsin was on the dreaded firing list. USA-W apparently put there due to complaints from state GOP to Rove.
2. The USA-W then brings this incredibly weak case.
3. This case is used as political ammunition by state GOP in a 'swing state' as identified by Rove.
4. USA-W is not one of the USAs purged.
</blockquote>
You have the timing wrong.
Nobody knows when Biskupic was added, but Josh Marshall thinks it was after October 17, 2006.
The USA-W brought the case in early 2006, with a conviction in June 2006.
So here is the proper timeline.
<blockquote>
1. The USA-W brings this incredibly weak case.
2. The USA for Wisconsin was then on the dreaded firing list. USA-W apparently put there due to complaints from state GOP to Rove.
3. This case is used as political ammunition by state GOP in a 'swing state' as identified by Rove.
4. USA-W is not one of the USAs purged.
</blockquote>
Not so clear, is it?
Funny how the NYT columnist (Adam Cohen) blasts Biskupic for allegedly drawing this inference about Thompson with insufficient evidence -- so what does Cohen do? Draws the same inference re Biskupic. With even less evidence.
That was a simplified timeline (unlike some other posters, I have both a life and exams to study for). I was glossing over the significant contacts between Rove, the President, and the Wisconsin GOP in 2005.
Here's the full timeline
Again, there is no proof. What did USA-W do to 'save' his job? How did he demonstrate being a loyal Bushie? Did the complaints in late 2005 cause this prosecution? Without further evidence (Rove's emails and testimony), we'll never know.
But that's the sad fallout from the scandal- for all that I know, USA-W is an outstanding prosecutor, and he pursued these trumped-up charges in good faith. But because of the corrupt politicization of the DOJ, it is tremedously difficult to give him the benefit of the doubt.
I think the standard of proof needed to justify criticizing someone in an editorial is a good bit lower than that required to try to convict someone of a crime.
Besides, Cohen does not have access to Biskupic's files and notes on the case. Wonder what they would show?
So, your evidence of corruption is that there is no evidence of corruption? And here my silly method has always been to wait for the evidence before accusing someone.
I guess sticking my fingers in my ears and humming doesn't work anymore.
You missed my point. Even under the expanded timeline, the point is that the prosecution was completed before (at least according to Josh Marshall) he was even added to the list.
I have more on this here and here.
The bottom line is that there are a lot of misguided folks like yourself out there who think that Biskupic got off the list by bringing the Thompson prosecution. But the timing belies it. According to the best evidence we have, the prosecution was long over before he was even added to the list.
In other words, the problem with your timeline wasn't that it was incomplete. It's that it was 100% backwards on the critical point.
Generally it is some form of evidence that spawns an investigation. You don't just up and decide to investigate someone on a lark. Starting investigations for the sake of investigating things is generally considered bad form (outside of congress anyway).
Where exactly is the obvious impropriety you see? The people working with Biskupic say he wasn't politically motivated. There was testimony that Thompson said things to the effect that Adelman was the only choice that would be accepted. Two Adelman execs increased their campaign contributions to doyle 10 fold the year prior and were in communication with Doyle while the bidding was going on. This all cuts in favor of Biskupic being on the up and up, so what is your evidence that he wasn't?