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Let the law, not our emotions decide Ryan’s fate

Monday, Nov 29, 2010

* My Sun-Times column

‘You can indict a ham sandwich,” went the old saying.

Good prosecutors couldn’t actually do that, but they usually could persuade grand juries to do all sorts of things. Federal prosecutors were the best at this because federal law was far more pro-prosecution than state law.

Federal law eventually became so pro-prosecution, however, that the old saying needed an upgrade. The feds not only could indict a ham sandwich, they could actually convict one.

The reason for this was the federal “honest services fraud” statute. Prosecutors used the law to go after corrupt politicians and business leaders. It was an extremely effective tool because it made their jobs so much easier.

Prosecutors, for instance, didn’t have to prove any quid pro quo to convict their targets. If it walked like a duck and quacked like a duck, then it was a duck under the law.

All that changed last summer when the U.S. Supreme Court stepped in. The Supremes limited the use of honest services fraud to just bribes and kickbacks, and the justices insisted that prosecutors prove clear quid pro quo behavior.

No longer would “you give me this and somewhere along the line I do that” be automatically a prosecutable offense. The government would now have to prove that the “this” and the “that” were inextricably interrelated. In other words, it actually had to be a duck.

And that wasn’t all. Federal prosecutors could no longer fold state law violations into their honest services cases. They also couldn’t contend that defendants who failed to disclose a conflict of interest were in violation of the honest services statute.

Narrowing the honest services fraud law was, for prosecutors, like losing your expensive set of Snap-On socket wrenches and having to use a pair of Dollar Store pliers instead. You might still be able to get that bolt out, but it wouldn’t be nearly as easy.

Former Gov. Rod Blagojevich is a good case in point. He originally was indicted under the honest services law, but prosecutors had to re-indict him without it. Blagojevich was convicted on only one count: lying to an FBI agent.

I’ve told you all of this so we can talk about George Ryan. The former governor is in federal prison after being convicted under the old version of honest services. Unlike with Blagojevich, prosecutors never had to prove a Ryan quid pro quo existed. They also could use state laws against Ryan as well as his failure to disclose his financial conflicts of interest. The jury found him guilty on every single count.

This week, Ryan’s lawyers used the Supreme Court’s decision to argue that he should be set free. We’ve been bombarded with emotional pleas from both sides.

Ryan shouldn’t be released from prison just because some feel bad for an old, sick man, and others, including myself, feel sorry for his terminally ill wife. But he shouldn’t be kept in prison because of our emotions, either.

Like many of you, I’m still very angry about what he did. I don’t think I’ll ever get over that no matter how long I live.

The deciding factor here ought to be the law, not passion.

And it’s obvious to anyone but the most emotionally blinded that Ryan’s trial would be radically different if it were held today.

The prosecution claimed over and over back then that they not only didn’t have to prove a quid pro quo involving Ryan, but that they didn’t have to show any evidence of one to convict him, either.

They simply couldn’t get away with that now.

I just hope we can let the judicial system work this out without getting too worked up ourselves.

Thoughts?

- Posted by Rich Miller        

26 Comments
  1. - Anonymous - Monday, Nov 29, 10 @ 7:12 am:

    I may not agree with Ryan regarding public policy concerning the death penalty, but the man should be freed based on the lack of merit of honest services fraud. Unfortunately Ryan’s legacy is going to be the Sec. of State scandal, instead of the many jobs he helped to create and infrastructure repairs with Illinois First.


  2. - Anonymous - Monday, Nov 29, 10 @ 8:07 am:

    I applaud the dispassionate analysis. Reason is sorely lacking in today’s cable-TV-driven-screamfest marketplace of ideas.

    The Supremes were right to rein in the awesome power of the Justice Department. As for Ryan, the wheels of justice grind slowly — time is not his friend.


  3. - Anonymous - Monday, Nov 29, 10 @ 8:10 am:

    I still believe that George Ryan went to prison because he put idiots in key positions and then stood loyally by them. To echo “Anonymous”, Ryan will be remembered more for what happened on his watch rather than his many accomplishments.


  4. - PPHS - Monday, Nov 29, 10 @ 8:24 am:

    I do believe that he has served more time than anyone else would have for similar misdeeds.

    Heck, he learned from previous office holders.

    He was and is a dear friend.


  5. - shore - Monday, Nov 29, 10 @ 8:28 am:

    It’s off topic, but this quote and story should make afternoon congresscritter version clips.

    Rep.-elect Joe Walsh (R., Ind.) says he’ll live in his office. His wife, interior designer Helene Miller-Walsh, says he won’t. Mr. Walsh thinks it’s easier to live near his desk. Ms. Miller-Walsh thinks it’s unhealthy to never leave it.

    “When I come to stay, I’m not walking around in fuzzy slippers in the office,” she says. Then there’s the whole image thing. “I just can’t tell my college-age kids that mom and dad moved back into the dorm,” she says. Mr. Walsh has yet to decide where to sleep.

    http://online.wsj.com/article/SB10001424052748703559504575630661395762460.html?mod=WSJ_Election_RightTopCarousel_1


  6. - JustaJoe - Monday, Nov 29, 10 @ 9:51 am:

    Politicians are just too adept at avoiding the overt quid pro quo to completely eliminate circumstantial evidence about a conflict of interest. A presumption of innocence surely must be maintained, but courts do allow circumstantial evidence, so why not let appropriate case law apply with the full light of day on circumstances?
    If it looks like a duck & sounds like a duck and walks like duck, there is probably no reasonable doubt that it’s a duck.

    Ryan should probably only be released under normal processes available to any other individual so imprisoned…and that works both ways, i.e. he shouldn’t be favored or penalized based on his political history.


  7. - D.P. Gumby - Monday, Nov 29, 10 @ 9:57 am:

    I’ve been howling against the “honest services” interpretation and its abuse since before George’s case. It’s simply unconstitutional to charge as a crime amorphous conduct that is only criminalized in the eyes of the Feds post hoc. George should either have a new trial or be released based on time served. This is not a slap on the hand except for those who view our grossly disproportionate sentencing at all levels (three strikes; life for everything; etc.) as rational.


  8. - Chicago Moderate - Monday, Nov 29, 10 @ 10:49 am:

    I totally agree with D.P. I believe any violation of “honest services” should be a civil matter. Honest services was a way for prosecutors to get the case to a jury from there it was merely dirtying up of the defendant. We should rule on laws, not emotions or preconceived feelings about politicians.


  9. - Fed-Up - Monday, Nov 29, 10 @ 11:04 am:

    I appreciate and agree with the dispassionate approach Rich.

    Anonymous - “I still believe that George Ryan went to prison because he put idiots in key positions and then stood loyally by them.” I disagree - GR went to priison because he failed to recognize that he could no longer operate in the same manner that he did when he first entered policitcs. The rules changed and he didn’t change with them - simple as that!


  10. - Real 47th Ward - Monday, Nov 29, 10 @ 11:25 am:

    Let Gov. Ryan go! He has served his time. For Ryan his time has put him in hell. Let him be with his wife, children and grandchildren. No honest fraud things happened! Give him service for his credit to the State of Illinois. Signed - A Staunch Democrat!!!


  11. - Plutocrat03 - Monday, Nov 29, 10 @ 11:25 am:

    I differ in the SC interpretation of the honest services, but the court has spoken and we need to move forward.

    GR should be treated the same way that any prisoner in the system is treated. Not differently because he may be old, ill or is liked or disliked by people.

    There seem to be two viable paths for release. Alter his sentence based on the new interpretation of the honest services statute. Presumably the sentence would shrink or be eliminated.

    Secondly a reduction in sentence based on good behavior or anything else available to the prison population.


  12. - Ghost - Monday, Nov 29, 10 @ 11:28 am:

    I disagree in part. The law and its sentencing guidlines in my oppinion should be able to consider mitigating factors like the health of the individual or their spouse. This does not mean you have to reduce a sentence, but it should be am option to consider along with the severity of the crime, the danger to the public if the individal is released etc.

    That said, it is rare that we resentence an individual if the law they were convicted under is changed. The Supremese did not absolve anyone previously convicted, so legally the prior conviction and sentence should stand.

    The parol board can consider parolling im, and the Governor could note the change in the law and pardon him.


  13. - Bubs - Monday, Nov 29, 10 @ 12:02 pm:

    Let all who decide to betray us all by engaging in criminal conduct in the highest levels of Illinois government beware: Republican, Democrat or Martian, you are going to do every day of your sentence.


  14. - wordslinger - Monday, Nov 29, 10 @ 12:38 pm:

    –..Governor could note the change in the law and pardon him.–

    Federal conviction, dude. It would have to be the president for pardon or commutation. If it doesn’t happen around Christmas, it probably won’t happen at all.

    Also, I don’t think Ryan is eligible for parole for a while. With the federales, I believe you have to serve about 80% of your sentence, unlike the state where you can get a day off for every good day.

    Time is not on Ryan’s side.


  15. - Okay Then/Will County Woman - Monday, Nov 29, 10 @ 12:40 pm:

    Ryan should have been let go a long time ago. I hope he is let out soon. When political people hold up the Willis Family as why they are so angry with Ryan, I don’t buy it one bit. Besides, blaming him for what happened to the Willis kids is beyond over-the-top.

    As a tax paying citizen, I believe that Ryan has answered for his crimes, and the time that he has served has been more than sufficient. He still has to answer to a much a higher power on all of this, and I think that is as it should be at this point.


  16. - amalia - Monday, Nov 29, 10 @ 12:52 pm:

    that was a very good column, Rich. still don’t think that even by the law that he should get out. here’s another column….let’s stop voting for people by their personality and vote by how they plan to govern/have been governing. lots of people liked Ryan. and they were very wrong about him.


  17. - Way South of the Border - Monday, Nov 29, 10 @ 12:56 pm:

    Ghost hit a key issue: it depends on what the precedent is, when a law like this is changed. Does it apply retroactively, to the already convicted?

    If so, how far back do we go? Should Otto Kerner receive a posthumous “all clear”?


  18. - Anonymous - Monday, Nov 29, 10 @ 1:06 pm:

    Old George Ryan is the poster child for the old political system. Those Willis children died because Secy of State workers were selling Truckdriver licenses to cover the tickets they were given by Ryan. They were selling licenses for cash and using the money (instead of their own)to buy Ryan fundraiser tickets.
    Simple as that. He had no idea a tragedy like that would happen but he is culpable and should remain in prison until the end of his sentence.


  19. - the Patriot - Monday, Nov 29, 10 @ 2:35 pm:

    ===Willis kids is beyond over-the-top==

    The cash from the truck driver who killed those kids helped this man get elected. It was a system he was aware of and a system he profitted from, personally and professionally. Sorry, when people die as a result of your criminal enterprise, you go to jail.

    I note they are asking that he be set free not for a new trial. 6 years was lenient for him. If convicted on a new trial and different evidence comes he, he could do a lot worse than 6 years.


  20. - Rich Miller - Monday, Nov 29, 10 @ 2:37 pm:

    ===when people die as a result of your criminal enterprise, you go to jail.===

    Except he wasn’t convicted of that. Stick to the facts, please. That’s what the column was all about. Your emotions are getting the best of you.


  21. - Bill - Monday, Nov 29, 10 @ 2:39 pm:

    “Those Willis children” died because a chunk of metal fell off a truck. It had nothing to do with George Ryan. The trial has been over for a long time. You can spare us the histrionics.
    To the question,
    To the uqestion:
    Yes,cut him loose. That law always was bullbleep from the time Jim Thompson made it up. It is very ironic now watching him trying to clean up his own mess.


  22. - Ghost - Monday, Nov 29, 10 @ 2:46 pm:

    Word ooops, I mean the president could note the change in the law and pardon him :)


  23. - wordslinger - Monday, Nov 29, 10 @ 4:48 pm:

    –That law always was bullbleep from the time Jim Thompson made it up. It is very ironic now watching him trying to clean up his own mess.–

    So true.

    It’s astounding to me that in an era of the Tea Partiers and the yammering about the overreach of the federal government that folks aren’t up in arms over the the ability of the federales to simply ruin people’s lives as they work themselves up the prosecutorial food chain for bigger fish to put on the wall.

    Chris Kelly wasn’t a Boy Scout, but he wasn’t a big fish, either. He didn’t need to be driven to suicide to go after Blago. Rod was dumb enough that the A-Team could have convicted him without that.

    Nick Calabrese copped to 14 — fourteen! — murders, but the federales put him in First Class because he was willing to testify against other Outfit guys.

    In what universe is an admitted 14-time murderer a witness for “the people?”

    Meanwhile, while the feds are devoting all their resources to chasing Ryan, Blago, and ancient mobsters, the gang bangers of Chicago are mowing down cops on the street. Strange times.


  24. - Ain't No Justice - Monday, Nov 29, 10 @ 5:51 pm:

    Thanks Rich for being the most level headed here today! Say what you will, but even with Gov. Ryan, Blago, and others….nothing has changed. They still do what they have always done, just getting better at hiding it. Quinn is no different with most of the people he put in on “his” watch, same as Blago. Let the courts sort it out. Enough!


  25. - Park - Monday, Nov 29, 10 @ 7:17 pm:

    Is there anyone out there that would have a problem with Obama just commmuting the sentence to time served?? Nixon did that for Jimmy Hoffa for crying out loud. Not like Ryan is going to re-emerge as a political force somewhere.


  26. - been - Monday, Nov 29, 10 @ 8:02 pm:

    Excellent column Rich, and valid point to look at this case without all the emotions (unlike the coverage elsewhere in the media on this LEGAL filing. Geez, if you read the SunTimes and Trib coverage, you would have thought it was just another plea for a pardon/commutation/mercy).

    Here are a couple of responses to above comments, for what they are worth. There is NO federal parole since the feds adopted the US Sentencing Guidelines and truth-in-sentencing provisions in the late 1980’s.

    A defendant must serve all of the custodial sentence, less a max of 54 days per year that can be earned as good time credit. That is, a federal defendant, like Ryan, must serve no less than 85% of the custodial sentence imposed, presuming no violations while in custody. Absent judicial relief then, a Presidential Pardon/Commutation, not parole, is the only other mechanism to reduce a federal custodial sentence.

    Violations of state laws and regulations, of course, can still can be prosecuted by state and local officials– the Supreme Court ruling, attempts, in part, to limit the federalization of these state/local/rule and disclosure violations. Not everything needs to be, or should be, a “federal offense” in our constitutional form of supposed limited federal governmental authority. See, for example, Ryan/Kerner/mail fraud pre-Ryan trial opinion piece submitted to Sun Times in 2006–http://www.jamesmerriner.com/times2_19_06.html
    Retroactivity of “new” judicial rules, procedures and processes, is a very complex area of our criminal laws and jurisprudence. VERY generally, changes in criminal process and procedures, will NOT apply retroactively. New “substantive” rules, however, such as what constitute required elements of an offense, can apply retroactively.

    If the “new judicial rule” is substantive and can be applied retroactively, relief is, again, generally speaking, only available to those currently under sentence and presently serving that sentence (that is, in custody or serving the supervised release period of sentence)–the dead (Gov Kerner’s family tried, for instance, to expunge his conviction following a previous Supreme Court ruling on this statute, see, http://cases.justia.com/us-court-of-appeals/F2/895/1159/46659/) cannot get relief. Will leave out discussion on those alive, but have completed their sentence, but a brief online discussion/post by lawyers on the retroactivity of this Supreme Court decision that covers the gamut in short, is here: http://sentencing.typepad.com/sentencing_law_and_policy/2010/06/anyone-have-ideas-how-and-how-many-federal-fraud-prosecutions-will-be-impacted-by-skilling.html

    Short history of mail fraud statute and “honest services” litigation and some still open issues can also be found here: http://www.SECactions.com/?p=2366

    As to this Supreme Court ruling (Skilling/Black), the Supreme Court has already directly applied it to the Conrad Black (former Sun Times owner) case and he was recently released from custody, pending resolution of the legal issues. In Ryan’s case, the district court will have to decide if he is entitled to relief (his case is not on direct appeal, as was Conrad Black’s case, and Ryan has some factual distinctions to be resolved by the court–public official vs. private individual (no, the law doesn’t treat them the same), etc).

    If the district court rules in favor of defendant Ryan’s pending motion, because Ryan is not challenging all of his convictions (such as the tax charges), the government would have to decide whether to retry him on these mail fraud/RICO counts. Regardless, he would likely be entitled to a new sentencing hearing, and based on the standing/remaining counts, he would probably get a sentence, under the US Sentencing Guidelines, that would equal to or less than the time he has already served.

    The Feds could wait to make a decision on a possible re-trial for the potentially dismissed counts, until after re-sentencing on the remaining tax/fraud counts.

    Bar exam test, later…. Hope this helps. Rich did a much better job in explaining simply, but if you want to dig deeper and apply for a law license…have at it.


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