* 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?