EDITORIAL >> No justice for Tucker
We do not have much quarrel with that idea. And Tucker, indeed, suffered grievously even if he served no jail time. He lost the highest office in the state, a bright political career and almost his life to a rare liver disease.
But even the most politically actuated among us should be repelled by the miscarriage done Tucker by the special prosecutor with the active connivance of elements of the federal judiciary. Last week, a three-judge panel of the 8th U. S. Circuit Court of Appeals at St. Louis said Tucker could not now change his guilty plea to a charge of bankruptcy fraud after discovering that the government had tricked him into the plea seven years ago by withholding the information that the law he was supposed to have violated did not exist. The judges said that whatever the strength of the charge against him, if he pled guilty he had to stay guilty. That was that.
Tucker’s case is perhaps the most Byzantine to be brought through the federal courts in Arkansas. Let us recapitulate for those whose Whitewater memories are overloaded.
The office of independent counsel, outside the Justice Department, was created to investigate President Bill Clinton’s connections with James McDougal and a couple of his Arkansas business interests, Whitewater Development Corp. and Madison Guaranty Savings and Loan, back in the 1970s and ’80s. Until Kenneth Starr, the special prosecutor, latched onto Clinton’s dalliance with a White House intern in 1998, none of the many investigations hatched out of the Whitewater inquiry turned up any misdeed by Clinton or anyone in his administration in Washington or Little Rock. We omit Webster Hubbell, a Justice Department official who was turned in by his law firm for cheating the partners, including Hillary Clinton, out of hundreds of thousands of dollars in the ’80s and early ’90s. But McDougal put the prosecutor onto Tucker, who although he was a bitter adversary of Clinton was a prominent and sitting Democratic official. That was good enough. Tucker would become the only significant pelt that Starr’s 10-year investigation could claim.
Eventually, Tucker, McDougal and McDougal’s wife were convicted of fraud in their dealings with Hale, who ran a crooked small-business lending company that accommodated prominent Republicans and some Democrats with fraudulent loans.
But Tucker’s enemies tipped the independent counsel on something else that had nothing remotely to do with Clinton – Tucker’s acquisition of a Texas cable television company in 1988 and a bankruptcy filing. Tucker, his Little Rock lawyer who devised the deal and a businessman were indicted for creating a sham bankruptcy to cheat the government out of $3.7 million in corporate income taxes.
U.S. District Judge Henry Woods threw the case out because Starr did not have the power to investigate and bring charges in anything that was not at least somehow connected with McDougal, Whitewater or Madison, which is what the independent counsel’s mandate said. But Starr sent the 8th Circuit Court of Appeals a few newspaper articles attacking Woods and suggesting he had ties to Hillary Clinton, whom he had once appointed a special master in a school case. The 8th Circuit panel, chaired by a judge who got his job by the intercession of Sen. Jesse Helms of North Carolina, reinstated the charges against Tucker and removed Woods from the case owing to the newspaper clippings, which was unprecedented in American jurisprudence.
Tucker resigned from office in 1996 when he was convicted of the fraud in the Hale case and then had a liver transplant. As Tucker’s trial on the bankruptcy matter approached, Starr’s office refused to divulge its case against him, including the specific statute he was supposed to have violated. The judge, Stephen M. Reasoner, agreed with Starr that since he was charged under a conspiracy law the government did not have to tell Tucker which law he was supposed to have violated until the trial.
On the eve of the trial, Starr’s deputy offered Tucker a deal he could not refuse. If he would plead guilty to something, whatever he chose, Starr would see that he served no jail time and could be free to pursue his business interests, even go abroad. Also, Starr would not seek a new trial if the courts overturned his conviction in the other case. Sick, fearing a prison term and unprepared to fight a case neither he nor his lawyers understood, Tucker told the judge that he was guilty of not telling the bankruptcy judge in 1988 all the terms of the CATV sale contract, although he had supplied all of it to the IRS, which ought to be the same thing.
It was in a presentencing report later that Starr divulged the statute Tucker had violated. The law had been repealed two years before the transaction. Tucker sought to overturn the sentence, alleging fraud and deception by Starr. When Starr’s office finally disbanded and its work turned over to George Bush’s Justice Department, Reasoner held a hearing to determine how much restitution he actually owed the government for the bankruptcy filing. The IRS said at most it would be less than $65,000 under the statute that existed in 1988 and now, and the tax lawyer in Bush’s Justice Department said Tucker well could be entitled to a refund on his personal income taxes rather than a penalty.
Tucker’s panel at the 8th Circuit knew all that when it ruled last week in a brief order that brushed aside all of Tucker’s arguments in a few sentences. The judges erroneously said the U.S. attorney’s office, which never had a thing to do with the case, brought the case against Tucker. Strange coincidence. If it were the U.S. attorney, the case would never have been filed because government rules re-quire IRS approval and participation to file criminal tax cases.
For 40 years, U. S. courts have been bound by the Brady precedent, which says the government must give a man a new trial if it withholds any information from him that might affect his guilt or innocence or his penalty. All the 8th Circuit chair, Judge James B. Loken, said about that was, it doesn’t apply.
The ruling will cost Tucker no fine, no prison time and no loss of future earnings, which have long since been decided, but when justice is meted out politically and not evenhandedly, we are all a little poorer for it.