As Senate hearings opened on Elena Kagan's nomination for the U.S. Supreme Court, Kagan pledged "a fair shake" for every American whose case comes before her. The promise was fitting: One of the court's responsibilities is to serve as the ultimate assurance that lower court decisions have been fair, no matter how unpopular the cause or the defendant.
Last week the justices fulfilled that important duty by limiting federal prosecutors' use of the "honest services" law. This is the 1988 law that makes it a crime to "deprive another of the intangible right of honest services." The court's unanimous ruling threw cold water on the statute, finding it overly broad and vague.
Its use should be confined, wrote Justice Ruth Bader Ginsburg, to cases involving bribery and kickback schemes. If Congress wants to criminalize other sleazy actions by public officials and corporate executives, Congress needs to specify exactly what wrongdoing it has in mind.
One of the three cases before the court involved a particularly high-profile defendant, Enron's Jeffrey Skilling. Skilling is not off the hook, because he was convicted on other charges as well, but his lawyers can now make a case for setting him free. They won't be alone when they knock at the courthouse door.
Losing ticket
In North Carolina, several public officials, including former U.S. Rep. Frank Ballance, former state Rep. Michael Decker and former state Agriculture Commissioner Meg Scott Phipps, were convicted in recent years under the federal honest services law. But because they also pleaded guilty to other violations, the most immediate challenge has come from Kevin Geddings, a former state lottery commissioner imprisoned following his October, 2006 honest-services conviction.
Geddings was found guilty in federal District Court in Raleigh on five courts of fraud. His offense involved not properly revealing his business ties to a lottery industry supplier, Scientific Games, when he was appointed to the fledgling state lottery commission. Geddings failed to disclose on an official form the fact that he'd received more than $163,000 in payments from the company.
Also, prosecutors presented evidence that while on the commission Geddings tried to promote the company's interests, and he remained in contact with company representatives even though lottery commission members are not supposed to do that.
Has to be illegal
At trial, and in an unsuccessful appeal, Geddings' lawyer argued that his client's offense merely amounted to having a conflict of interest. That is a mild view indeed. Given all the circumstances, and the stakes involved - the lottery supplier contract was worth many millions of dollars - the Fourth U.S. Circuit Court of Appeals found that "A reasonable jury could find beyond a reasonable doubt that Geddings deprived the citizens of North Carolina of his honest services."
It could and it did, but now the Supreme Court has sensibly ruled that the law was unconstitutionally vague when applied to cases much like Geddings'. Yesterday, federal prosecutors declared that the ruling means they no longer have a case against Geddings. And if District Court Judge James C. Dever III decides that giving a "fair shake" to all requires that Geddings goes free, so be it.
Congress may decide to clarify the honest services law, and that would be a worthwhile exercise. Regardless, it is state officials' responsibility to make sure that North Carolina's own laws classify blatant breaches of public trust, such as those committed by Kevin Geddings, as the serious crimes they are.
