Michael Maggio, the former circuit court judge from Faulkner County, is appealing the most recent decision in his case to the 8th Circuit Court of Appeals.
Maggio, 61, of Conway pleaded guilty to bribery concerning federal program funds before U.S. District Judge Brian Miller on Dec. 9, 2015, and was sentenced on March 24, 2016, to serve 10 years in federal prison. Maggio testified in the bribery conspiracy trial of Gilbert Baker, a former state senator from Conway, who was accused of funneling bribes from a Greenbrier nursing home owner in the form of campaign contributions to Maggio's aborted Court of Appeals campaign.
Baker was acquitted by a jury in 2021 of bribery conspiracy but jurors deadlocked on seven counts of honest services wire fraud. The case against Baker was dismissed the following year.
Last month, Miller denied a motion to set Maggio's conviction aside nunc pro tunc -- a Latin term meaning "then for now" -- which would have effectively erased the conviction from the former judge's record.
Prior to his 2016 sentencing, Maggio tried unsuccessfully to withdraw his guilty plea, arguing that he had followed bad advice from his previous attorneys and that the government could not prove its case against him. An appeal of his sentence to the 8th U.S. Circuit Court of Appeals in 2017 was also unsuccessful, with the court ruling that Miller did not abuse his discretion when he sentenced Maggio to an above-guideline prison term. Requests to the U.S. Supreme Court to hear his appeal in 2017 were rejected.
In a May 1 motion, Maggio's attorney, James Hensley of Conway, asked Miller to place his client "in the same condition as all other defendants or persons of interest in this case" through a nunc pro tunc order that would "dismiss with prejudice the Information against him and exonerate him of any charges." Miller's two-sentence order on July 25 gave no explanation for the denial.
In its opposition to Maggio's dismissal motion, the U.S. Attorney's Office in Little Rock pointed out that during the eight years Maggio's case has been active, he was imprisoned, and motions to withdraw his guilty plea and to dismiss his conviction have been denied, released early from prison and granted an early termination of his supervised release. In short, the government argued in its motion opposing dismissal of the conviction, "nothing remains of Maggio's case or sentence but a courthouse record."
"It is long past time for Maggio to accept that he was properly, legally, constitutionally charged and convicted," the U.S. Attorney's Office wrote.
On Monday, Hensley filed a notice of appeal to the 8th Circuit and on Tuesday, Michael Gans, Clerk of Court for the 8th Circuit, filed a notice of docket activity assigning Maggio's appeal a case number and title. Contacted by phone Tuesday, Hensley said the bottom line is that he and Maggio believe the government is wrong.
"They said he shouldn't be allowed to do this but well, there's cases out there now that say these people should have their cases dismissed," Hensley said. "I didn't say that, the U.S. Supreme Court said it and they just don't agree with it. I understand why but that's what I'm going to be talking about in this appeal, that we just don't agree with their analysis."
Hensley has contended in his filings that the statute under which Maggio pleaded guilty to bribery concerns the receipt of money or property from federal programs, which he said is inapplicable to Maggio's case under a number of recent Supreme Court decisions.
"It's difficult and it's something that's got a lot of emotion tied up in it but it's something I really feel good about," he said. "Judge Miller said that when he was thinking about the sentence, he was concerned at the damage someone like a drug dealer does versus someone who is a circuit judge. The government wanted a few years in prison. We were looking at 36 months. The judge gave him the maximum 10 years. The aggravation of the government is because Mike Maggio was a circuit judge."
Asked why, in the face of all of the unsuccessful attempts Maggio has made to clear his record, he continues to seek dismissal of his case, Hensley said it comes down to a matter of fairness. He said Baker was accused and acquitted of funneling money from Greenbrier nursing home owner Michael Morton to Maggio in the form of campaign contributions in order to get Maggio to reduce a $5.2 million wrongful death award, which Maggio reduced to $1 million about the same time the contributions arrived in Baker's hands.
Baker was acquitted of the conspiracy count and the remainder of the indictment against him was dismissed. Morton, who has said for years he did nothing wrong, was never charged.
"He doesn't believe he's guilty of anything," Hensley said. "There's nobody else found guilty of anything yet he had to pay the price for everybody because he pled guilty based on the law at the time ... We just want to be treated like everyone else. Nobody has any record, nobody went to jail, and even though he did all of that he just wants what the law allows."
Hensley said Maggio's guilty plea notwithstanding, restoring his full rights in light of the circumstances would be the right thing to do.
"Yes, he pled guilty but when you're on one side of the bench ... it's totally different than being on the other side," he said. "You do what your attorney tells you to do. And you know, maybe that was the wise decision at the time ... but ... there's nobody else found guilty in this case of anything ...So why does he want to do this? Wouldn't you want your record cleared if you didn't do anything wrong?"