Wealthy In The First Degree

How many times has the question of prosecutorial misconduct by concealing Brady material been the subject of discussion here? By quick count, there have been 274 posts at SJ. Without vetting them all, my guess is that none of them distinguished the issue by the wealth or race of the defendant denied, but about Wild Bill Douglas’ nastiest joke on the criminal defense, dangling the duty to disclose exculpatory evidence without the minor details of when the duty must be fulfilled or what happens if it’s not.

Now, I learn that all of this discussion about Brady was all wrong. David Oscar Markus wrote about Brady concealment in the prosecution of Lori Loughlin and the defense’s effort to have the indictment tossed as a sanction.

Loughlin has said from the beginning that she never thought that her money was going directly to a coach; instead she thought she was making a donation to the school or to the athletic department, which would be entirely legal. The prosecutors openly scoffed at this defense, saying that they had recordings of Loughlin and her husband which demonstrated that they knew the money was going to bribe the coach.

Pretty damning, if true, making Loughlin’s refusal to take a quick plea all the more curious and, if the prosecution was right, arrogant. But the key words are “if true.”

The defense just learned — a year after the charges were brought — that Singer kept notes of his discussions with agents before he recorded his calls. Those notes, it turns out, seem to validate exactly what Loughlin and her husband have been saying all along. Singer wrote in one note, for example, that FBI agents got “loud and abrasive” and “continue to ask me to tell a fib and not restate what I told my clients as to where there money was going — to the program not the coach and that it was a donation and they want it to be a payment.”

In other words, Loughlin’s defense — that she thought she was making a donation to the program and not bribing a coach — was confirmed contemporaneously by the main government witness. That’s powerful exculpatory evidence.

On top of that, the feds pushed their snitch, Singer, to make recorded phone calls to push Loughlin into agreeing that she had knowingly paid bribes when it was “bending the truth.”

The defense filed a motion to dismiss the case. The judge recently said that what occurred is “serious and disturbing,” and has ordered prosecutors to explain in more detail what happened before ruling on the defense motion.

Will this result in the sanction of dismissal, giving meaning to a Brady violation, or a harsh tongue-lashing, where the AUSAs bow their heads, shuffle their feet and mumble “sorry,” and the case goes on as if it never happened?

See, that question is what the issue looks like from the perspective of someone focused on Brady, on the duty to disclose exculpatory material and the mechanism to compel the prosecution not to conceal it. That’s what David wrote about. That’s what I wrote about all these years. That’s what some of us thought this Brady thing was all about. Boy, were we wrong.

For the lawyer focused on Brady, which would matter as much to the poorest and blackest as well as the richest and whitest defendant, there is a principle at stake. In the 433 comments following David’s post, the range of concern runs the gamut of whether the wealthy are inherently evil to whether the rich are inherently evil Trumpsters.

These aren’t the badgelickers, the tough-on-crimers, the right-wing kooks who believe that any defendant arrested must be guilty and prosecutors, like Preet Bharara and the ubiquitous Joyce White Vance, are now the darlings of social justice, the tens of thousands of black and Hispanic, and white, caged for life plus cancer forgotten. No, these are the passionate social justice warriors, the woke, the Trump-hating moral and decent people. These are the righteous, as they will happily tell you at every possible opportunity.

Except they aren’t skeptical about prosecutors. They don’t believe in the presumption of innocence. They couldn’t care less about the rule of law, about concealment of evidence, about the government fulfilling its constitutional duties to the defendant. They will claim they are, but only when it serves their end game of aiding those defendants they favor. If a killer is black, he’s either innocent or has a sad story that ameliorates his guilt, unless his crime was against a woman, in which case he can rot in hell.

And if a defendant is wealthy, white or Aunt Becky, every ounce of their being will fight for her guilt.

As lawyers and judges, we’ve spent an enormous amount of time and effort arguing about the efficacy and application of rules of law, the same rules that apply to the rich as well as the pauper, to conduct rather than identity. Was it “not worth the time and effort“?

And these are the people we would keep on the jury, only to learn after trial that they had already convicted the defendant for being wealthy in the first degree.