Commissioner Jimmy Dimora (Plain Dealer file photo)
The Sixth Circuit Court of Appeals heard oral argument in Jimmy Dimora’s case on April 16, 2020. In light of the covid-19 crisis and social distancing, the argument was held via zoom video conferencing. You can listen to the audio in the player above. The three-judge panel was comprised of Judge Gilbert Merritt (nominated by President Carter in 1977), Judge Amul Thapar (nominated by President Trump in 2017), and Judge Joan Larsen (nominated by President Trump in 2017). I argued on behalf of Jimmy Dimora, and Laura McMullen Ford argued on behalf of the United States.
This is the context for the argument, from my perspective:
Phil Kushner and I represent former Cuyahoga County Commissioner Jimmy Dimora in efforts to overturn his public-corruption convictions. As explained in this post, we filed briefs arguing that his convictions and 28-year sentence are invalid. Our basic point is that the whole trial largely boiled down to the jury’s assessment of one thing: Dimora’s mindset when he received gifts and other things of value during his time as county commissioner. Was his mindset—that is, his intent—lawful or criminal? Did he commit federal bribery and related crimes or not?
Two things are critical to answering that question about his mindset when he received things of value.
First, public officials have to follow rules when they receive things of value—in Ohio they have to formally disclose the names of anyone who gave them gifts or meals over $75, and they have to file that ethics report every year with the state ethics commission. Dimora did that.
Second, in addition to disclosure, the other way public officials have to follow the rules is they have to ensure that they do not exchange an “official act” for any thing of value received. Officials can do all kinds of things on behalf of constituents and friends and anyone else (arranging meetings, making phone calls for them, helping them with information about county projects, guiding them to the right people for county loans, etc.)—and if you want to say someone bought that “access,” that’s fine. But the official must draw a line in the sand and cannot exchange official acts (things like votes, rigging construction bids, etc.) for the things of value. There is a lot of evidence that Dimora indeed drew this line. He did all kinds of things for people who gave him things of value (and also people who didn’t), but he made it known that he wasn’t doing things like rigging any bids or issuing county funds (loans, federal grants, etc.) when it wasn’t independently approved as legitimate by the county staff. In other words, he wasn’t going to exchange official acts for the things of value.
So what happened at Dimora’s trial on these two critical points regarding Dimora’s intent?
On the first point, the jury was promised during opening statements that it would see his disclosures, but then that evidence was excluded altogether—the jury never saw it and got no further explanation. And the prosecution suggested repeatedly that he never disclosed anything about the things of value he received.
On the second point, the prosecution told the jurors that they should convict Dimora as long as he did “anything” in his role as commissioner in exchange for the gifts he received. The jury was told “anything” is an “official act” that equates to a federal crime when exchanged for any gift. But, years after trial, the Supreme Court in McDonnell v. United States made clear this isn’t true: official acts are limited to formal things such as votes, tracked agenda items, and the like. And official acts are emphatically not just “anything” Dimora did, such as make a phone call or help someone navigate the county to get things done. He did those things all the time for people that gave him things and for people that didn’t—that explains why he has so many counts against him.
All of this meant that Dimora’s trial attorneys, William and Andrea Whitaker, were prevented from being able to present these fundamental points to the jury even though they had repeatedly and effectively tried to do so. The jury didn’t know the truth about the facts (his disclosure) or the law (he did non-official acts).
After McDonnell, Dimora’s appellate attorney Christian Grostic effectively developed and presented this argument to the trial court, but the court concluded that there was no basis to overturn the convictions.
Appealing that decision to the Sixth Circuit, Phil Kushner and I continue to press Grostic’s arguments, arguing that the jury was wrongfully led to convict Dimora even if he committed no crimes. We say he is entitled to a new trial where a jury knows the truth about both the facts and the law.
This is basically what the oral argument at the Sixth Circuit was all about. Were these errors “harmless” in that they did not substantially affect the verdict (as the government contends), or were they “harmful” in that they did substantially affect the verdict (as we contend)?
The day after the argument, the government filed this letter explaining its view of the law regarding “harmless error.” I responded with this letter, explaining our contrary view.
We will see what the Sixth Circuit decides.