“God save the United States and this honorable court.”  With this traditional blessing a hearing on the case titled United States vs. Alvin Clay began at the Thomas E. Eagleton courthouse in St. Louis.

Just how honorable is the court?  Time will tell.

Defendants always face an uphill climb in the appeals process.  They don’t call it United States vs. Alvin Clay for nothing.  To win in this game, Alvin Clay and his attorney, Shirley Lobel, have to convince a panel of three judges to side with a convicted felon against “this honorable court”.

Courts are honorable by definition, no matter what they do. 

As Shirley Lobel argued this morning, if Donnie McCuien had done what he promised to do, there would be no case to prosecute against Alvin Clay.  At trial, McCuien swore that he never intended to do rehab work on five properties, that he had never done a lick of rehab work in his life, and that Alvin Clay knew all of this.

As Ms. Lobel repeatedly stated this morning, this is a case about knowledge.  Records demonstrate clearly that Alvin Clay had no direct knowledge of the fraudulent loan agreements Ray Nealy sent to loan companies or the get-rich-quick schemes Donnie McCuien sold to gullible investors.  Clay just knew he was subcontracting rehab work to Donnie McCuien in exchange for a portion of the proceeds.

Alvin Clay and Assistant US Attorney Steven Snyder don’t have much in common.  Clay is young, black and  big; Snyder is older, white and on the small side.  Snyder is still licensed to practice law; Clay, thanks to Mr. Snyder, has been forced to surrender his law license.

But Snyder and Clay are united in one particular: both men were scammed by the same street hustler. 

“Trust me,” McCuien told Alvin Clay, “I’ll take care of the rehab work on the five properties.” 

“Trust me,” McCuien told Snyder, “I’ve never done a lick of rehab work in my life and Alvin Clay knew it.”

Snyder and Clay have learned to their eternal regret that Donnie is a pathological liar.

Clay eventually discovered that no rehab work was completed (and precious little was initiated).  Snyder ultimately realized that Donnie McCuien had performed rehab work on dozens of properties over the years.  Sometimes Donnie finished the job, sometimes he quit half way through the project and sometimes (as in the five deals he worked with Ray Nealy) he did no work at all.

Knowing what he knows now, Steven Snyder couldn’t possibly convict Alvin Clay.  But he doesn’t have to.  Clay is already convicted and appeals courts don’t care about issues of guilt and innocence so long as the prosecution was procedurally impeccable.

That’s right.  Even if the entire basis of a prosecution is found to be bogus, defendants have little recourse from the appeals process once a jury reaches a verdict.

Shirley Lobel was the only person in the courtroom this morning talking about Donnie McCuien’s credibility.  Steven Snyder wasn’t going to bring it up and the panel of three judges expressed zero interest in the subject.  They spent most of their time asking who, exactly, was defrauded in this case since it appears the five buyers recruited by Donnie McCuien were, to a large extent, in on the scam.  This is a legitimate issue, but it begs the question in this case: what do you do with a conviction based on perjured testimony?

Leon Holmes, the federal judge who presided at Clay’s June 2008 trial, once believed Donnie McCuien.  Holmes believed Donnie because his testimony was being sponsored by Steven Snyder, an honorable representative of the United States and this honorable court.

At the end of trial, Holmes still believed McCuien.

Then things began to fall apart.  At the end of the day, it was clear to Snyder, Holmes and God in heaven that poor old Donnie was a psychopathic liar.  Holmes could have vacated the verdict and ordered a new trial.  But he didn’t.  Instead, he passed the buck to the 8th Court of Appeals. 

My great fear is that the judges who heard the case today will pass the buck back to the jurors.  “If the evidence was good enough for twelve white folks in Arkansas,” they may reason, “who are we to argue?”

Who are you?  You are officers of “this honorable court”. 

I am write this petulant screed from the airport in St. Louis.  When my computer fired up I noticed that the SEC is suing Goldman Sachs for fraud.  The evidence will undoubtedly show that scads of bright young men and women with ivy league degrees intentionally scammed deep-pocket investors into buying portfolios of toxic assets and then bet that these investments would fail.  Of course there was no way of knowing, for sure, that the investments would go south.  So long as the real estate bubble was expanding everyone was getting rich off deals that defied logic. 

But the wise guys at Golden Sachs knew the second shoe was bound to fall and they were prepared to cash in when it happened.

Meanwhile, the Department of Justice was asleep at the wheel.  They were too busy depriving Alvin Clay of his law license to notice the mammoth fraud spreading like a malignant cancer through the financial sector. 

As street hustlers go, Donnie McCuien is pretty accomplished; but he can’t hold a candle to the folks who got rich demolishing the American financial sector.  Let’s see how many of these people lose their professional credentials or spend a day in jail.