James Gill: Ray Nagin’s creative legal argument suggests he should have retrial _lowres

Advocate staff photo by MATTHEW HINTON-- Former mayor C. Ray Nagin leaves court with his wife Seletha Nagin and attorney Robert Jenkins after being found guilty on 20 of 21 counts in New Orleans, La. Wednesday, Feb. 12, 2014.

Imagine you paid off a public official only to find he would have done what you wanted anyway.

Shoot, that money could have been used to meet some other cost of doing business in Louisiana. And what if another politician showed up with his hand out? There might not be enough money left in the kitty to keep him sweet. As if that weren’t frustrating enough, your needless bribe could still land you in prison, as Frank Fradella’s story illustrates.

Fradella, one of the crooked contractors who flocked to the side of Ray Nagin when he was mayor of New Orleans, is now doing a year and a day. He qualified for that relatively lenient sentence after his testimony played a played a big part in Nagin’s conviction. Nagin got 10 years, which was universally regarded as extraordinarily lenient.

Indeed, the trial had revealed him as such an arrogant scumbag that he should have curled up in the pen and thanked his lucky stars that he had found, in Ginger Berrigan, a federal judge with the heart to go below sentencing guidelines.

Instead, Nagin wants his convictions thrown out, and the appeals court in New Orleans has agreed to hear oral arguments the week of Oct. 5.

According to Nagin’s appeal, Berrigan misstated the law when she instructed the jury that a defendant could be convicted of bribery although he “would have lawfully performed the official action in question even without having accepted a thing of value.”

Nagin argued at trial that several of the payments he accepted made no difference because the City Charter, public bid laws or a veto-proof council majority left him no room for maneuver. Contractors may have been paying for special favors, but all they got was good government.

In his appeal, Nagin,who was convicted on 20 counts, maintains he should, therefore, have been acquitted on nine. The rest should be thrown out, too, he argues, on account of the “prejudicial spillover” from Berrigan’s allegedly erroneous instructions.

The feds will maintain that Berrigan was right and that a public official accepting moolah for a corrupt purpose is guilty of bribery whether or not he went on to earn it.

Berrigan, a former head of the Louisiana ACLU, is at the opposite end of the political spectrum from your typical member of the appeals court, but there is no taint of liberalism in her stance on the issue. Besides, Nagin’s appellate attorneys are not just asking the appeals court to overrule her. They want the court to overrule itself, noting that, in another case, it had found “ ‘no error plain or otherwise’ in a jury instruction like the one challenged here.”

That opinion was unpublished, meaning it does not constitute a precedent, but it is still a tall order to ask the appeals court to come down on a trial judge who followed its lead. Besides, it is much more difficult to win a reversal on an issue that was not raised at the time, and Nagin’s trial attorney Robert Jenkins made no objection to the jury instructions.

Indeed, court veterans were surprised that Jenkins, an old warhorse in the state criminal courts, hardly raised an objection to anything. That feeble performance means that Berrigan can be reversed only for “plain error,” which happens very seldom.

In any case, judges compile jury instructions only after consultation with defense and prosecuting attorneys. We must therefore assume that Jenkins thought Berrigan read the law correctly. Otherwise, even he would have been stirred to protest.

The appeal also challenges Berrigan’s order that Nagin forfeit more than $500,000, although that issue seems somewhat academic. He is destitute and his appeal is being handled by public defenders.

Absent from the appeal is any denial that Nagin was on the take. Indeed, at trial he seemed to suggest that he was entitled to a little extra, because he took a “300 percent salary cut” when he became mayor. That outlandish calculation certainly made a mockery of Nagin’s claim, in his first campaign, that he was a CPA.

Maybe now he can do some more math and work out the odds against his winning a retrial and an acquittal. He would have to come up with a very large number.

James Gill’s email address is jgill@theadvocate.com.