Jockisch lawyer to court: Feds didn't prove case

Friday, October 21, 2005

MONTGOMERY -- An attorney for former Mobile County Commissioner Freeman
Jockisch asked a federal appeals court Tuesday to overturn his jailed
client's 2004 fraud convictions, saying government prosecutors never
proved a crime and the trial judge erred in his instructions to jurors.
Mobile attorney Arthur Madden told the three-judge panel of the 11th U.S.
Circuit Court of Appeals that Jockisch's state ethics forms did disclose
the potential conflicts of interests that ultimately led to his
conviction.

Madden also suggested that the commissioner's key votes in question --
moving millions of dollars from county coffers to the county school
system, which eventually funded projects that benefited Jockisch -- were
not illegal because those transfers were required by law.

"There might be state ethics violations here, but that's another matter,"
Madden said at the Frank M. Johnson Federal Building and U.S. Courthouse
downtown. Judge Lanier Anderson presided over the oral arguments. He was
joined by Judge Susan Black and Judge Ed Carnes.

Jockisch was convicted by a Mobile federal jury in May 2004 of 15 counts
of mail fraud for being paid for his involvement with a fire sprinkler
company that worked on public school projects, and for lying about that
relationship on his state ethics forms. He was also found guilty of four
counts of filing false tax returns.

In some but not all of his ethics filings, Jockisch did list the sprinkler
company as a source of income, but prosecutors argued at trial that he did
not adequately explain his relationship with the company or its ties to
public jobs that could be loosely linked to the commission.

Jockisch began serving a 33-month sentence last November at a work camp
next to the Talladega federal prison. Jockisch also was fined $60,000, the
estimated cost of incarcerating him. In September, he was acquitted in a
state trial on a charge of misusing his campaign funds.

At his federal trial, Jockisch attributed most of the problems to a spat
with his business partner and maintained that he was being prosecuted for
political reasons.

His appeal is largely two-fold. First, Madden argued, U.S. District Judge
Charles Butler Jr. did not adequately explain the burden of proof on the
government in regard to how Jockisch filled out his ethics forms.

Madden told the three judges Thursday that because Jockisch did list Reed
Fire Protection on his ethics forms, any "reasonable person" who wanted to
know about the commissioner's potential conflicts could find them. Citing
federal precedent, Madden reasoned in his briefs that Butler should have
told jurors that "not all misrepresentations or omissions constitute a
scheme to defraud" but rather should be "material."

"The failure of the district court to guide the jury with an appropriate
instruction on a central issue of the case -- the materiality of the
omission of information regarding Reed Fire Protection -- seriously
affects the 'fairness, integrity, or public reputation of judicial
proceedings," Madden wrote.

Assistant U.S. Attorney Steve Butler disputed Madden's characterization of
the ethics form evidence, telling the judicial panel the government had
proven the alleged pattern of behavior necessary for jurors to proceed
with the instructions they received at trial. "(Jockisch) was never honest
with his constituents about how much money he made or how he made it,"
Butler said.

For a federal court to overturn a jury conviction on such a claim of
inadequate or improper jury instruction, the appellate judges would have
to conclude that there would have been a "reasonable probability" of a
different result if the instructions had been different.

Said Carnes, "I have no feeling that the jury result would have been any
different had (the) precise instructions you've come up with now been
given" during the trial.

Anderson added, "It's almost impossible" to prove the likelihood of a
different result. "That's why you lose here," he concluded, suggesting
that angle of Madden's argument carried little weight.

Carnes also pointed out that Jockisch's trial attorney did not raise such
an objection to the instructions during the trial. "The burden is on you,"
Carnes said. "If you had objected (at trial), the burden would be on the
government."

The second leg of Madden's appeal is that money transfers from the County
Commission to Mobile public schools were required by law. Further, he
stated, that money was never actually used to fund the Reed Fire
Protection projects. Thus, it cannot be reasoned that Jockisch used his
county office for personal gain.

Carnes peppered Butler with questions about this particular argument: "He
recuses himself, it gets done. He doesn't recuse himself, it gets done. He
resigns the day before the vote ... it gets done. The result is the same.
... I cannot imagine the law of the United States saying you can't vote
for something the law requires if you have an interest in the outcome."
Butler repeated his contention that Jockisch's votes did pave the way for
his own financial gain, which in combination with the ethics form
evidence, reached the level of a federal crime.