Federal prosecutors involved in the case that sent former Faulkner County Circuit Judge Mike Maggio to prison for bribery in 2016 filed a response Monday to Maggio's motion to dismiss "nunc pro tunc" the information and the case in its entirety through entry of an order that would effectively wipe the slate clean.
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, who in 2013 was working as a lobbyist and Republican Party fundraiser, helped arrange contributions from Greenbrier Nursing and Rehabilitation Center owner Michael Morton for Maggio's campaign. The next year, Maggio withdrew from the race after a scandal related to comments he was purported to have made on a Louisiana State University website. Federal prosecutors accused Baker of bribing Maggio as part of a scheme to get Maggio to lower a financial judgment against Greenbrier Nursing and Rehabilitation Center in the 2008 death of patient Martha Bull.
Bull, who had suffered a stroke, died two weeks into what was supposed to be a one-month rehabilitation stint at the nursing home. Her family was awarded $5.2 million by a jury that concluded the nursing home was negligent in Bull's death.
Baker was accused of arranging the 2013 contributions as a bribe to get Maggio to reduce a jury award against the nursing home from $5.2 million to $1 million, which he did after Morton sent $24,000 to Baker that was destined for Maggio's Court of Appeals campaign.
Indicted in 2019 on one count of bribery conspiracy and seven counts of honest services wire fraud, Baker was acquitted of the bribery conspiracy charge after a three-week jury trial in July 2021 before Chief U.S. District Judge D. Price Marshall Jr., who declared a mistrial after the jury deadlocked on the remaining counts. In October 2022, just two weeks before Baker was scheduled to be retried on the remaining counts, government prosecutors asked the court to dismiss the indictment with prejudice, meaning the charges cannot be refiled.
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." Nunc pro tunc is a Latin term meaning "now as then."
If successful, Maggio would regain a number of rights currently denied him as a convicted felon, including the right to own firearms or to run for public office. Also, according to Maggio's motion, if Miller grants the dismissal, he will be eligible to have his license to practice law restored.
Assistant U.S. Attorney Julie Peters, who prosecuted both Maggio and Baker, said in the government's response that Maggio's arguments were a blend of previously rejected arguments and erroneously interpreted case law, and that Maggio had established a history of failed attacks on the legitimacy of his conviction. Peters wrote that Maggio's argument that no link existed between his conduct and federal funds was shot down both by Miller's court and the 8th U.S. Circuit Court of Appeals and that "a nexus between the activity that constitutes a violation and federal funds" is not required as "an element to be proved beyond a reasonable doubt," by the language of 18 USC § 666(a)(1)(B), the statute under which Maggio was charged.
Peters also contended in her motion that under Federal Rules of Criminal Procedure, no procedure exists for him to seek the relief he has requested.
"Maggio has been convicted, served his term of imprisonment, and completed his supervised release," Peters wrote. "Maggio's Motion points to no legal authority that would permit the Court to adjudicate his motion post-sentence. This is because there is none."
Peters also wrote that Maggio's argument to dismiss the information nunc pro tunc because the money or property must be taken from the federal government has already been rejected by the 8th Circuit when he used the same argument in an attempt to have his conviction overturned. On July 3, 2017, the 8th Circuit ruled that Maggio's "nexus theory is meritless" and said Miller had acted within his discretion when he denied Maggio's attempt to withdraw his guilty plea and it affirmed Maggio's sentence.
Peters also assailed Maggio's contention that he suffered from inexperienced legal counsel as a "non-starter." Peters wrote that at the time of his plea and cooperation agreement, Maggio was represented by Lauren Hoover and Marjorie Rogers, saying that Rogers' practice in federal criminal law dated back to at least 2010 and that Hoover had extensive experience representing Maggio before the Ethics Commission, the Judicial Discipline and Disability Commission and in a civil case based on the same conduct as the criminal case.
Peters said Maggio's motion had falsely claimed government prosecutors had declared Baker's innocence by dismissing all potential charges against him just a fortnight before he was to be retried. She wrote that it would be inappropriate to outline the "careful and complex considerations that went in to the decision to dismiss that case," but said of the claim simply, "Maggio is wrong."
U.S. Attorney Jonathan Ross, in an email to the Arkansas Democrat-Gazette, said that the case has been litigated, appealed, and decided and the time had come to move on from it.
"We have a justice system so people can resolve their disputes fairly before an impartial judge," Ross said in the email. "Maggio violated the public's trust in that system by accepting a bribe to reduce a jury's verdict regarding a woman's tragic death by millions of dollars. And, when he did so, he committed a federal crime for which he was rightly held accountable. He should accept that outcome and move on."
Contacted by phone Tuesday evening, Hensley said some changes in the way the law he cited has been viewed in different circuits had given reason to hope Maggio might prevail.
"We'll just have to let the judge decide, and I think we've given him enough that he can do that," Hensley said. "I think Mike is entitled to it because of the changes in the law and the way the sister circuits review such cases now."
Hensley said he believes the case law cited in Maggio's motion has relevance and demonstrates an evolution in how the law is interpreted.
"That's the cool thing about our law and government," he said. "It allows for change ... We believe the law has changed and we believe those changes go in our favor."