Disgraced former Mayor Ray Nagin was back in the news last week. His new attorneys asked the U.S. 5th Circuit Court of Appeals to grant Nagin a new trial, arguing that U.S. District Court Judge Ginger Berrigan gave jurors erroneous instructions on the "honest-services" wire fraud counts on which the former mayor was convicted.
Jurors convicted Nagin on 20 of 21 felony counts, including one count of conspiracy to commit honest-services wire fraud, five counts of bribery, one count of money laundering, four counts of filing false tax returns and nine counts of honest-services wire fraud. He currently is serving a 10-year prison sentence.
Nagin attorneys Claude J. Kelly and Jordan M. Siverd — of the federal public defenders office — face an uphill battle on behalf of the former mayor. Nagin's trial attorney, Robert Jenkins, did not object to Berrigan's jury instructions at the time they were given, which means Nagin now has to meet a higher standard of review before the ultra-conservative 5th Circuit.
In her jury instructions regarding the honest-services counts, Berrigan told jurors they should convict Nagin even if they found that he "would have lawfully performed the official act in question even without having accepted a thing of value." Nagin's attorneys say that instruction runs counter to U.S. Supreme Court rulings. The government, no doubt, will argue otherwise.
Normally, when an objection to a legal issue is raised during trial, the appellate court reviews the matter "de novo," treating it as a new issue with no deference to the trial court. Under de novo review, an error will be reversed unless it was "harmless" beyond a reasonable doubt — and the government bears the burden of proof.
When no objection is raised at trial, the standard is "plain error," which means Nagin's lawyers must show that Berrigan's instructions were not only erroneous, but also plainly so — and that her error affected the outcome of the proceedings and "seriously affected the fairness, integrity, or public reputation of the judicial proceedings." In addition, the burden of proving that the error was "not harmless" shifts to Nagin.
That's a high bar. Nagin's lawyers raised it even higher by also asking the 5th Circuit to toss out all of Nagin's convictions, even though they allege no specific defects in them. Nagin's appellate brief argues that a "prejudicial spillover" from the honest-services wire fraud conviction "would have tended to incite or arouse the jury" into convicting Nagin on all counts.
Joe Raspanti, a former state prosecutor who now practices criminal defense law in state and federal courts, says Nagin's chances on appeal are "a real long shot."
"Jury charges by their nature are vetted beforehand by the judge and the law clerks," says Raspanti, who also is the legal analyst for WVUE Fox 8 News. "It's rare but not unheard of for jury instructions to be grounds for a new trial. Unlike a ruling from the bench during a trial, jury instructions get researched and reviewed for a day or more. It's a real long shot for him to get a new trial based on this."
Nagin's defense at trial was pretty feeble, so you can't blame his new lawyers for bootstrapping his appeal. When you don't have much to work with, a long shot often is your only shot.