We had a high-profile corruption case down here in San Diego a while back involvoing three members of the City Council. It had salacious facts and involved alleged bribery to change the laws that regulate strip clubs, so the media took to calling it "Strippergate". Which I love.
Nice place to stay, Strippergate. Comfortable beds. Though a bit loud.
Anyway, one of the defendants (Lewis) died, another was convicted on pretty much all counts (Inzunza), and the third (Zucchet) was convicted on a plethora of charges but had all but two of those convictions thrown out by the district court judge for insufficient evidence (and a new trial granted for those two to boot). So an ultimate win for one defendant, a loss for one defendant, and let's call it a tie for the one who died. As a result, everyone who's alive participates in the appeal, with Inzunza appealing his convictions and the U.S appealing the tossing of the verdicts against Zucchet.
The panel that's assigned once the case goes up is a strong split one: Judge Canby (on the left) and Judges Bybee and Milan Smith (on the right). The parties raise a plethora of different issues on appeal, but the Ninth Circuit's nonetheless able to write a unanimous opinion. Pretty impressive, though they're able to do so in part because they're simply affirming everything the district court did.
Judge Canby writes the opinion, and starts out by getting in some subtle humor, which is awesome. Here's the second paragraph: "In 2000, the San Diego City Council enacted an ordinance banning touching between exotic dancers and patrons: the so-called No-Touch ordinance. This ordinance replaced another provision banning only “lewd and lascivious” conduct at clubs. The bright line aspect of the No-Touch ordinance made for easier law enforcement and eliminated the need to spend public funds on lap dances for undercover police officers. It also put a damper on strip club profits."
Ultimately, Judge Canby agrees that Inzunza's guilty and Zucchet's innocent. Or, more accurately, that Inzunza's guilty but with Zucchet there's reasonable doubt. There's also a lingering issue about the legal requirements for "honest services" fraud that's at issue in the trial as well as in a pending Supreme Court case, so the Ninth Circuit stays the mandate to see how that all plays out. But essentially everything stays the same as it was in the district court for now.
I thought that Judge Canby did a good job of both (1) highlighting the evidence that demonstrated that Ralph Inzunza was indeed guilty, and (2) contrasting that evidence to the stuff against Zucchet, who was a far more peripheral figure and against whom the evidence was relatively slim. (Full disclosure: Zucchet is a neighbor of mine, and I often see him walking around with his kids, but I don't know him personally.) I also especially liked Judge Canby's discussion of the extremely difficult problem of policing the line between illegal bribery and legal bribery -- or, more descriptively, between bribery and "legitimate" campaign contributions. Here's some good stuff from Judge Canby on that topic:
"We confess considerable uneasiness in applying this standard to the acceptance of campaign contributions because, in our flawed but nearly universal system of private campaign financing, large contributions are commonly given in expectation of favorable official action. . . . Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend
to do or have done. [Cite] . . . How, then, in the potentially polluted atmosphere of campaign contributions, can we tell a criminal agreement from a large campaign contribution accepted from a contributor who expects favorable results?"
This seems spot on to me. I'm not entirely persuaded by Judge Canby's solution: that the line is at the "quid pro quo" point, as this itself seems infinitely fuzzy. But my sense is that Judge Canby's not all that comfortable with it either, and recognizes that the only defense of this position is that it's better than the alternative. Call it a "problem of the beard". We know there's a difference between a guy with a beard and a guy without one, but we can't draw a line between that's at all objective. We simply know there's a line and can tell you -- or try to tell you -- which is which merely by looking.
So I'm mostly on board for what Judge Canby does here. His discussion of the facts is extremely detailed and coherent, so on the main points, I think he's right. The opinion tends to fade as it progrsses, and starts giving subsidiary points merely summary consideration, but that happens sometimes. Not something that's to be encouraged, of course. But it happens.
The one area where I might diverge a bit from Judge Canby in his discussion of the alleged Griffen error. At trial, Inzunza didn't testify. Which is his Fifth Amendment right. But at closing argument, the prosecution made a big deal out of that fact, which you can't do. The AUSA didn't come right out and say "Why didn't the defendants testify?" But essentially said precisely that by making a big point, right at the end of its rebuttal closing argument, by approaching the defendants, looking at them with an outstretched hand pointing in their direction, and referring to the 1919 Chicago White Sox scandal by quoting the famous lament to the corrupt player Shoeless Joe Jackson: “Say it isn’t so, Joe. Say it isn’t so. Say it isn’t so.”
The district court held that wasn't a comment on the defendant's failure to testify. But I think it crystal clearly was, and that Judge Canby rightly so holds. Particularly in the context of this trial, repeating "Say it ain't so" when you're pointing at the defendants who haven't testified -- and comparing it to one of the most famous corruption cases in history, and in which the whole point of the story is that you know that Shoeless Joe was indeed guilty because he didn't tell the fan it wasn't so -- is a direct comment on their failure to testify.
Judge Canby, however, holds that the error was harmless. On this point I'm not entirely persuaded. Judge Canby admits that the comment came right at the close of the prosecution's rebuttal -- right before the jury retired to deliberate -- but responds that this impact was dissipated because "the argument continues for another twelve transcript pages." But come on. Twelve transcript pages is like two or three minutes at most. Clearly this was a central point of the rebuttal; moreover, it was a particularly powerful one.
Judge Canby nonetheless concludes that Inzunza would have probably be convicted anyway, even without the prejudicial comment on his silence. But even the district court concluded that the evidence against this defendant was "not overwhelming," and Judge Canby himself spent a half-dozen pages at the outset of the case explaining just how tough it is to draw a line between legitimate and illegitimate contributions. Especially in light of these circumstances, it seems way, way too facile for the panel to conclude that the error was likely harmless -- much less that it was harmless beyond a reasonable doubt. So I think this is a serious problem.
I do agree with Judge Canby on one point in this regard. The jury might well have convicted Inzunza even without the Fifth Amendment violation. After all, it convicted Zucchet even though every judge now agrees that the evidence against him was insufficient. But this additional fact seems to me only to highlight the need to grant a new trial and to vest less confidence in the jury's judgment and the allegedly "harmless" nature of the prosecutor's comments. Indeed, to me, the fact that the jury convicted Zucchet even though we all agree that the evidence against him was insufficient may well suggest that the "Say it ain't so" comment worked: that the jury was indeed so prejudiced by the prosecutor's comment about the failure of Zucchet and Inzunza to testify that they voted to convict even an individual against whom every rational juror would concede there was reasonable doubt.
Particularly given how the entirety of the trial played out, I'm just not at all convinced that the Griffen error here was indeed harmless, much less that we can be totally confident in that fact and in the deference that the Ninth Circuit gives to the jury's verdict against Inzunza. To be clear: I'm not at all saying that Inzunza is in fact innocent, and Judge Canby does a darn good job of persuading me that he's probably guilty. But being more than likely guilty isn't an adequate substitute for having a neutral and unprejudiced jury conclude that you are indeed guilty beyond a reasonable doubt. Which I just don't think has ever transpired here.
