Wednesday, April 30, 2014

Close call on Jimmy Dimora's appeal, upheld 2-1

Two appeals court judges dismissed Jimmy Dimora as a cliched, corrupt crook today. But a dissenting judge cited Supreme Court decisions about money in politics to suggest Dimora should get a new trial.

Dimora, who charmed countless Democrats during his backslapping reign over Cleveland politics, left Judge Jeffrey Sutton less impressed.

The judge upheld Dimora's conviction while weaving in pithy summaries of Dimora's Vegas romp, hooker dalliances, backyard resort and cheesy affairs.

"Hotel rooms, a public official, sexual favors, help finding a government job: If there is anything to criticize here, it is not that the evidence fails to support the jury’s verdict; it is that the saga is so cliché," Sutton writes.

The big debate in Dimora's appeal is, Dimora wanted to introduce his state ethics disclosure forms as evidence. The trial judge said no. Was that an error that harmed his defense?

Sutton says no -- it was a harmless error.

"The government produced overwhelming evidence against Dimora," he says -- recorded phone calls, testimony from bribers and co-conspirators such as Frank Russo, and evidence about Dimora covering his tracks. "This case had it all," Sutton marvels. The ethics forms didn't prove that the listed gift-givers weren't bribing Dimora, he argues. Besides, Dimora didn't list all his "gifts," which shows he was trying to hide many things.

Judge Gilbert Merritt disagrees.  His peevish dissent seems as critical of the Supreme Court as it is of Dimora's trial judge.

"The influence of money in politics is growing by leaps and bounds, and the subjective intent of the public official receiving the money is perhaps the last and only distinguishing feature between criminal 'quid pro quo bribery' and permissible 'ingratiation,'" Merritt writes.

He cites two big Supreme Court cases about money in politics. The 1976 Buckley decision says buying votes attacks the foundation of democracy, but this year's McCutcheon decision says exchanging money for "ingratiation and access is not corruption," he notes.

The only way to navigate those two decisions, he says, is to look at the public official's intent, including his disclosures.

"The prosecutor promised the jury that she would show a culture of secrecy and nondisclosure shielding Dimora’s corruption," Merritt notes. The judge "said in open court before the jury that 'it’s very important to the government’s case to be able to indicate there wasn’t any disclosure' of Dimora’s political patronage."

This might not be the end of Dimora's legal battle. His lawyers can ask the entire federal appeals court, not just a three-judge panel, to review the case.

Merritt's dissent may be overly clever. Criminal law and campaign finance law aren't the same thing. Still, he has a point. Even as criminal law makes it easier and easier to prove that a gift became a bribe, the Supreme Court is allowing cozy financial relationships between donors and officials to escalate.

To read the full opinion, click here.

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