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George Ryan’s lawyers make their case

Monday, Nov 22, 2010

* George Ryan’s attorneys were in court today arguing that their client should be released. Much of the press coverage has focused on the humane aspect

Former Gov. James Thompson, a longtime friend and lawyer of George Ryan, said Monday “as a matter of humanity” the imprisoned convicted governor’s suffering in prison should be put to an end.

“In my view, George Ryan has been punished enough. He has lost everything,” Thompson said. “The only thing that George and Lura Lynn have left is their lives . . . their love for each other, their family and their friends. Everything else has been taken from them.

* I’ve had the Ryan attorneys’ memo in support of their motion to release the former governor for weeks and haven’t published it because of the election. Now seems a proper time. Click here to read it.

* It’s usually helpful to read the conclusion first in these matters, so here it is

Because the evidence was insufficient to support Ryan’s mail fraud and RICO convictions under the Skilling standard, these convictions must be set aside, and the government may not retry the defendant. See Burks v. United States, 437 U.S. 1, 10-11 (1978). If the Court were to find the evidence sufficient on any or all of the mail fraud or RICO counts, however, it should order a retrial of these counts. The Court’s instructions were erroneous, and the error was not harmless. Upon setting aside Ryan’s mail fraud and RICO convictions, the Court should recalculate his sentences for false statements and various tax offenses.

The “Skilling standard” is, of course, the US Supreme Court’s ruling that set aside part of the conviction against Enron honcho Jeff Skilling. “Honest Services” was the core of the case. Ryan was convicted mainly on this long-established and ever-expanded precedent that the Supremes tossed out the window.

* A big way the feds convicted Ryan was stating right up front that they didn’t have to prove any quid pro quo. The Skilling decision prohibited this line of attack

A single theme pervaded the five-and-one-half-month trial of George Ryan. Witnesses declared that Ryan had never to their knowledge taken a benefit in exchange for official action, and Ryan’s lawyers argued that there was no quid pro quo. The government replied that it had never claimed that Ryan took a bribe and that whether he did or not did not matter. The Ryan trial was an anti-McCormick, anti-Evans, anti-Sun Diamond Growers trial, a paradigmatic pre-Skilling honest services trial, and a forum in which the government successfully and repeatedly contended that no quid pro quo was necessary. […]

With one exception, to be discussed in the next section of this memorandum, the Government did not claim to have proven a corrupt act or quid pro quo. It conceded in its closing argument that it had not […]

“R. 22973.
“How did George Ryan reciprocate this longtime friendship [with co-defendant Lawrence Warner]? Governmental business is how he did it. $3 million worth of government business. Was it a quid pro quo? No, it wasn’t. Have we proved a quid pro quo? No, [we] haven’t. Have we charged a quid pro quo? No, we haven’t. We have charged an undisclosed flow of benefits back and forth. And I am going to get to the instructions in a minute, folks, but that’s what we have charged. . . . We have charged an undisclosed flow of benefits, which, under the law, is sufficient . . . .”

* There is also a new definition of bribery and kickbacks that the Ryan team is attempting to take advantage of

The Government charged Ryan with a wide-ranging scheme to defraud that extended over twelve years and with a RICO conspiracy predicated upon the alleged mail fraud scheme. Most of the conduct alleged to be part of the scheme cannot remotely be characterized as bribes or kickbacks. Evidence of this conduct would be inadmissible in a post-Skilling mail fraud trial and would be highly prejudicial in a trial of legitimate mail fraud charges.

More

C. Other Leases. Counts 3, 8, and 9 consisted of mailings in furtherance of other leases. The jury convicted Ryan on all of these counts, but this Court set aside the conviction on Count 9 (concerning the rental of a property at 17 North State Street on which Lawrence Warner obtained a commission) partly because there was no evidence that Ryan had a part in arranging this lease. […]

This evidence is insufficient to support Ryan’s convictions on Counts 3 and 8 under the Skilling standard. The Government’s evidence may have indicated that Ryan favored Warner in awarding leases and other business, but it did not indicate that Warner ever gave Ryan a bribe or kickback. Warner provided only one significant financial benefit to George Ryan. He sponsored two political fundraisers—one raising $75,000 and the other $175,000. R. 22959. Sponsoring a fundraiser is a political contribution, appropriately treated as a bribe only when the beneficiary has explicitly promised a quid pro quo. McCormick, 500 U.S. at 273-74. Because the Government offered no evidence of an explicit quid pro quo, the fundraisers should be disregarded.

Warner also made loans and gifts to members of Ryan’s family. Most notably, he wrote a check for $3,185 to pay for the band at the wedding of Ryan’s daughter, Jeanette. R. 22969. The evidence offers no basis for inferring an agreement at the time this check was written.

* And then they go after the jury instructions

VI. THE JURY INSTRUCTIONS WERE ERRONEOUS
Even if the evidence were found sufficient to support Ryan’s RICO and mail fraud convictions, this Court’s instructions were flawed on five respects.

First, the instructions incorporated the honest services standard of United States v. Bloom, 149 F.3d 649 (7th Cir. 1998). The Supreme Court held in Black v. United States, 130 S. Ct. 2963 (2010),

Second, the instructions described the duty not to accept bribes and kickbacks merely as one of the duties of public officials whose violation could lead to an honest services conviction. Under Skilling, a scheme to obtain a bribe or kickback is not just one possible path to conviction; it is essential.

Third, the instructions concerning the duty not to accept bribes and kickbacks, taken as a whole, did not convey the quid pro quo requirement.

Fourth, the instructions invited the jury to convict Ryan for failing to disclose conflicts of interest. They thereby endorsed a theory of honest services fraud that the Government advanced in Skilling and that the Supreme Court emphatically rejected.

Fifth, the instructions invited the jury to convict Ryan for violating state laws, another position clearly rejected by Skilling.

* Here’s the argument for why Ryan should be released now, even though he has not served out all the years of his sentence

Although Ryan does not challenge his convictions for false statements (Counts 11-13) and various tax offenses (Counts 18-22), setting aside his mail fraud and RICO convictions would require this Court to re-determine his sentences for these other offenses. Ryan received the statutory maximum sentences on both the false statements counts (five years) and the tax counts (three years) only because these counts were joined with the mail fraud and RICO counts. Section 2255 affords this Court broad remedial powers. Upon a finding that a judgment or sentence is subject to collateral attack, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). Moreover, “when part of a sentence is vacated the entire sentencing package becomes ‘unbundled’ and the judge is entitled to resentence a defendant on all counts.” United States v. Smith, 103 F.3d 531, 533 (7th Cir. 1996).

Thoughts?

- Posted by Rich Miller        

29 Comments
  1. - Stones - Monday, Nov 22, 10 @ 3:57 pm:

    Has Ryan ever accepted blame for his actions? My recollection is that he has been defiant throughout.

    I would look more favorably upon his request if he would be a bit more contrite.


  2. - Rich Miller - Monday, Nov 22, 10 @ 4:00 pm:

    Stones, he has accepted blame. It was late, but he did it.


  3. - John Bambenek - Monday, Nov 22, 10 @ 4:07 pm:

    The question is, if/when these charges are reversed (and I think many will be), does he get his pension back? What’s the standard on that?


  4. - Rich Miller - Monday, Nov 22, 10 @ 4:09 pm:

    He won’t because he would still be convicted of some felonies. I think he already cashed out anyway.


  5. - FarmerGeorge - Monday, Nov 22, 10 @ 4:12 pm:

    I sen him a rock hammer a few years ago. He should Andy Dufresne his way out of there any day now. He’ll be hanging out on the beach in Ixtapa-Zihuatanejo by Spring.


  6. - Stones - Monday, Nov 22, 10 @ 4:17 pm:

    Rich, were those comments made through his Attorney or from Ryan personally to someone from the media? I suppose that a statement would have more impact if it came from his lips rather than his legal representative.


  7. - Rich Miller - Monday, Nov 22, 10 @ 4:19 pm:

    Stones, he’s in prison, so it’s not like he could do a media avail.


  8. - John Bambenek - Monday, Nov 22, 10 @ 4:48 pm:

    Lol…

    Maybe Conrad Black was doing the interview, Rich.


  9. - Living in Oklahoma - Monday, Nov 22, 10 @ 4:53 pm:

    Let him out. He is old, and has served his time. Its the right thing to do.


  10. - corvax - Monday, Nov 22, 10 @ 4:54 pm:

    I never once voted for the guy for any office, but there is no purpose of the criminal law served by keeping him locked up after what he’s been through. Let him hold his wife in her last days.


  11. - John Bambenek - Monday, Nov 22, 10 @ 4:59 pm:

    All those saying let him go…

    There are lots of old people in jail who did crimes in comparison (or perhaps worse) then he did. Many have served most of their lives.

    Should they simply be let out too?

    Because if we’re going to establish this “let people out of jail when they are old” rule… it damn well better be for everyone and not just one connected politician.


  12. - Rich Miller - Monday, Nov 22, 10 @ 5:01 pm:

    John and others, try to stick to the case as presented. It’s far better than bringing your emotions into this. We can argue forever about those emotions, but they have zero to do with the defendant’s actual filing.


  13. - Ann - Monday, Nov 22, 10 @ 5:08 pm:

    I agree. The law has changed and he was never as bad as Rod to begin with. Let him go home.


  14. - Doubtful - Monday, Nov 22, 10 @ 5:26 pm:

    Skilling’s decision was reversed because he was not a public servant. Ryan was. I don’t think this will get him anything but press.


  15. - wordslinger - Monday, Nov 22, 10 @ 5:38 pm:

    –I sen him a rock hammer a few years ago. He should Andy Dufresne his way out of there any day now. –

    Stay classy, dude.

    As far as whether old people should be let out because they’re old, in many cases, the answer is yes.

    Are they a threat to society? Have they paid an appropirate price? Is it worth the cost to the public to keep them in cages?

    We lock up too many people for too long for very little. And once you’re in the system, katy bar the door. The American prison population is larger than that of 15 states. Check it out.

    http://www.economist.com/node/16640389


  16. - Plutocrat03 - Monday, Nov 22, 10 @ 5:49 pm:

    Since the state has a 50% standard for good behavior, I would not be too upset if he was released at the 50% point. I know he is in federal custody, but personally I believe if a murderer can get off in half the time, so can some one who misused his office.


  17. - JustaJoe - Monday, Nov 22, 10 @ 6:07 pm:

    The more troubling thing here is the standard that wink-wink, nudge-nudge behavior will get a pass.


  18. - Excessively Rabid - Monday, Nov 22, 10 @ 6:07 pm:

    Let him out, provided he and his attorneys agree to file nothing else in this matter, ever.


  19. - 47th Ward - Monday, Nov 22, 10 @ 6:10 pm:

    ===Everything else has been taken from them.===

    Sorry Big Jim, the Ryans forfeited what you claim was taken from them. The Ryans aren’t the victims, George Ryan is the convicted perp here.

    You could say “they forfeited everything,” or they “lost it all,” but please don’t cry that it was all taken from them like the government swindled some poor hapless senior citizens out of their retirement savings. George Ryan is a lot of things, but victim isn’t one of them.

    And going there doesn’t help make Ryan a more compelling case for early release. His case is compelling enough on its merits, so please spare us the violins Jim.


  20. - Steve Downstate - Monday, Nov 22, 10 @ 7:00 pm:

    He’s been in for about three years, right? I’m not a big fan of Ryan’s, but frankly, I’m surprised (and satisfied) that he’s been behind bars that long. Wouldn’t have a problem with releasing him at this point. If he gets out, though, I hope he won’t do a victory lap of some sort (as Rod is sure to do once he is released, should he ever end up actually going to the slammer).


  21. - foster brooks - Monday, Nov 22, 10 @ 8:11 pm:

    George made his bed now he has to lye in it. Do the time your guilty


  22. - Belle - Monday, Nov 22, 10 @ 8:16 pm:

    He always smelled rotten on TV so let him continue his rot in jail.
    I believe he was much worse than Blago since he was in the game for many decades longer. We will never really know what he did other than take a lot of money and kill 6 kids.
    You people are very forgiving…I’m not…he stole my money.


  23. - Cheswick - Monday, Nov 22, 10 @ 9:15 pm:

    He stole your money?

    The defense was very smart in giving Judge Pallmeyer a menu of of reasons to hang her hat on should she decide to modify the convictions. She also has the prerogative to skip it all and just reduce his sentence. In either event, I hope she does reduce his sentence.

    I take it the government hasn’t filed it’s counter-argument, yet.


  24. - The CARDINAL - Monday, Nov 22, 10 @ 9:32 pm:

    well there you have it, it should have been a murder trial? what kind of a dolt would equate the license selling going on at SOS over the years it was going (and probably still is) and blame the elected top dog. ryan was just unfortunate to be the guy at the helm when that accident occurred. someone had to be held accountable. why not the ones at the drivers facilities that lined their hack pockets with 100$ bills and gave out the licenses.


  25. - Anonymous - Monday, Nov 22, 10 @ 9:49 pm:

    If Ryan hadn’t delayed and delayed, he would be out already. Remember his trial was pushed back a year because out of 70,000 lawyers in Illinois, only Dan Webb could do it, and was busy with a civil trial. Well, if even Webb lost it after all that wait, maybe the writing was on the wall and he should have pleaded guilty. Then he didn’t report to BOP until after his 7th Circuit appeal (in which the court noted that the evidence of his guilt was “overwhelming”). I don’t remember if he also stayed out while his SCOTUS cert petition was pending (and ultimately denied), but I wouldn’t be surprised.


  26. - Gregor - Monday, Nov 22, 10 @ 10:06 pm:

    The law may have changed recently, but Ryan knew what the law was at the time, and he didn’t let that stop him then. It was a righteous bust at the time and under the existing rules. Let’s not kid ourselves that all of this took a sweet and cuddly old grandpa by surprise.

    I guess he’s got a right to appeal the sentence, but it hardly seems fair then that you can’t re-try the case. it is like only one side getting the “do-over”. of course, this is the law we’re talking about, so fairness is irrelevant. There is only what can and can’t be done under the current interpretation of those rules.


  27. - SAM FROM SPRINGFIELD - Tuesday, Nov 23, 10 @ 4:29 am:

    When my late husband was in a car wreck, my first call was from George Ryan. The late great Linda Ladley told me later that they called every half hour, yes he did favors for people. The story was never told about all of us “little” people who could do him no favors in return. When Phil died, George came to the funeral, no notice, no fanfare. It sas in September of 1990, he was a little busy. But he marched up to Brookfield and slipped in the back door. After I moved back to Springfield and he knew I wanted to restart my career after 5 years of caring for my husband he did a million little things to raise my image and prestige. I had no money at the time, could do nothing for him. Those of us who knew him well way back then, can tell you similar stories. He didn’t attend Harry Carey’s funueral, I am told, because the mother of a former secretary’s funeral was the same day. He is in jail for being loyal and unable to fire people. He is in jail for being a lousy administrator and too proud to take a deal. He adores his wife, please let the judge take compassion. House arrest, perhaps.


  28. - eddiethekid - Wednesday, Nov 24, 10 @ 2:58 am:

    George Ryan was a disgrace as both Secretary of State and Governor. As secretary of state he allowed his office to become a virtual den of iniquity, where bribery was the order of the day. As governor, he used his position to hand out sweetheart contracts to his friends. He once had the state of Illinois pay the law firm of Winston and Strawn, Jim Thompsons’ law firm, $300 thousand dollars to do a study on whether or not an incrase in the gas tax would provide additional revenue to the state. A 5 year old knows that any tax increase provides additional revenue to the state. He also had a $250 thousand grant given to Arlington Park racetrack because its owner, Edward DeBartolo (once denied the right to purchase a major league baseball team because of his alleged ties to organized crime) complained that the racetrack was losing money to the Illinois casino competition. A racetrack is the lowest form of gambling house, and to give welfare to any house of gambling is a disgrace, but to give it to a racetrack is the sin of sins. A racetrack wouldn’t give you bus fare home if you lost your entire paycheck there.
    They’d tell you to get out and call you a bumb, and then George Ryan gives these worthless parasites $250,0000. He belongs in prison until the last second of his 6 1/2 sentence.


  29. - Anonymous - Wednesday, Nov 24, 10 @ 7:52 am:

    – He (Ryan) once had the state of Illinois pay the law firm of Winston and Strawn, Jim Thompsons’ law firm, $300 thousand dollars to do a study on whether or not an incrase in the gas tax would provide additional revenue to the state. A 5 year old knows that any tax increase provides additional revenue to the state.–

    Plenty of GOP supply-siders, including the most recent GOP nominee, would disagree with you.

    — He also had a $250 thousand grant given to Arlington Park racetrack because its owner, Edward DeBartolo (once denied the right to purchase a major league baseball team because of his alleged ties to organized crime)–

    You’re not even in the ballpark, or racetrack here. DeBartolo Sr. died in 1994 and never owned Arlington.

    MLB owners claimed they denied DeBartolo the opportunity to buy the White Sox from Bill Veeck because of his interest in racetracks in Ohio. But everybody knew they just didn’t want to compete with his cash. His family ownsership group won five Super Bowls with the Niners and was renowned as being wildly generous to its players.


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