It is unlikely that the U.S. Supreme Court will agree to hear former's Maryland governor Marvin Mandel's appeal of his political corruption conviction, according to several leading court scholars interviewed yesterday.
But one lawyer who has followed the case's long history noted that "the bizarre has become the norm" in U.S. vs. Mandel, and with that history it is impossible to say with certainity what action will be taken by the Supreme Court, Mandel's last hope for econeration.
If the court indeed refuses to hear the appeal, the earliest Mandel could begin serving his four-year prison term is next spring.
If the court does take the case, according to one scholar, the decision could be based on the fact that the Mandel prosecution has been interpreted by some as an unwarranted federal intrusion in the affairs of a state. Four justices in recent years have shown themselves to be vitally interested in this issue, and defense lawyers must convince only four of the nine justices that the case is worthy of review.
On Tuesday, the federal appeals court in Richmond set the stage for this final legal skirmish by rejecting Mandel's bid for a rehearing of his mail fraud and racketeering conviction. The decision not to rehear the case left the conviction standing on the basis of an earlier tie vote by the same court.
According to his defense attorneys, Mandel's main argument in requesting a Supreme Court review of the case will be tht the appellate court erred by ruling that it 3 to 3 tie vote upheld the conviction.
Several scholars predicted yesterday, however, that the Supreme Court is unlikely to take an interest in an argument over what the tie should have meant because such deadlocks set no legal precedents.
"The Supreme Court would be called upon to do justice in a single case, which the court has repeatedly said it is not in the business of doing," Georgetown Law Center professor Dennis Hutchinson said of the Mandel case."It is in the business of settling major legal question."
Mandel and his five codefendants also are facing incredible odds in seeking "cert" before the high court. "Cert" is legal jargon for having a case heard on its merits. In criminal case prosecuted as Mandel's was by the federal government, the court grants cert in only about a half-dozen case of the hundreds it sees each year, according to a Justice Department source.
But scholars cautioned that the odds mean little when gambling on the unpredictable Supreme Court.
There was little argument among the experts that the case has taken bizarre twists and turns, and that the 3-to-3 tie upholding the convictions was a rare situation.
"This case is an aardvark," sid Harvard law professor Arthur R. Miller. "The odds of this ever reoccurring are terribly low," he said, agreeing that the high court is unlikely to take the case.
Eugene Gressman, one of Mandel's attorneys and a law professor who has written a book that many of his peers call the Bible of Supreme Court practice, said he had difficulty finding legal guidance on the case even in the 19-volume federal procedure law books of noted criminal expert Charles Alan Wright.
"I have a whole set of Wright's books here and I find nothing to enlighten me on the issue. That's because it hasn't come up before," said Gressman, a proffessor at the University of North Carolina Law School.
Mandel's appeal to the Supreme Court is likely to focus on the sequence of events at the 4th U.S. Circuit Court of Appeals in Richmond.
There, a three-judge panel last January overturned Mandel's conviction on procedural grounds. The government then sought and won review by the full court. With six judges sitting, the court by a 3-to-3 split voted to reinsate the convictions.
In court practice tie votes generally uphold the lower court ruling, which in this case, according to the 4th Circuit order, was the Mandel conviction by the federal court jury.
But the defense has argued that actually the tie vote upheld the three-judge panel's decision overturning the convictions.
Supreme Court legal expert Robert Stern of Chicago said that several other federal appellate circuits around the country -- either by written rules or by practice -- have come down against the defense contention. But two state courts and a 1900 Supreme Court decision appear to support the defense argument, he added.
But several scholars said the whole argument is one that appeals courts such as the 4th Circuit could decide themselves. "It is not the kind of issue that is likely to spur the Supreme Court to action," said one professor.
Last January, the three-judge panel overturned the Mandel conviction, citing errors made by the presiding judge at his trial in allowing improper "hearsay" testimony and failing to provide proper instructions to the jury.
Those issues could be raised again before the Supreme Court, but Hutchinson said they are "garden variety issues of criminal procedure . . . that are routinely raised in cert petitions and routinely denied."
"If Mandel were a jockey and not a governor, it's unlikely the court would be interested," Hutchinson said. And several other scholars noted the high court does not accept case based on the importance of the individuals involved. c