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.
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You read all 433 comments?
Jesus.
Maybe you’re “tu quoque” should be applied to your insults about Reddit. I bet you’re on Reddit law now
Since you obviously can’t contribute anything intelligent, and aren’t funny, do you at least contribute to the financial maintenance of SJ. Even if you can only afford $1 a year, at least it’s something, which is more than what you contribute otherwise.
So, basically you’re saying I see nothing and know nothing.
I never did like you in Hogan’s Heroes.
As to funny, well, Scott is merely indulging my future self . My memory has been failing for a few years and I sometimes find a comment I made on a site and start laughing before realizing I wrote it.
It’s enough for me.
You miss, or at least downplay, a significant component of the analysis. It ain’t just Bharara or Vance who’s down on this. When’s the last time a judge, having gotten lied to (again) by a persecutor, got particularly exercised about this? The phrasing common to criminal defense attorneys usually sounds like “what if I’d’ve pulled that kind of shit?” Yeah, as if any of us still would have a license.
Indeed, one of the biggest changes for ex-persecutors is adapting to the differing terrain, and not merely perspective, imposed upon them by becoming a CDA. All of a sudden their word ain’t worth jack. So they tell me. Alex Kozinski may have had his flaws, but they were not with his ability to see the obvious, and the Youtube video of the Johnny Baca oral argument from like 2015, calling out Kamala Harris and her office with an offer to write an opinion in the case, is priceless. He called it an “epidemic” of Brady violations in the land, but all we heard about in the media was his interest in putatively kinky sex. Well, duh, he’s a judge and a guy, so none of this is new — or news.
So now we know why the judges who act and feel this way are so isolated that we can name them off the cuff, and why is it that they act so infrequently or at best intermittently to redress such issues? I call it the Big Brother syndrome — we WANT to believe our all-knowing solons of justice and right are just and righteous, whether he’s a persecutor — or a cardinal. Because if we cannot believe this, the system’s entire foundation is compromised, and the next stop, we are told, is anarchy and revolution.
Coupling that with the fact that the wronged criminal defendants (unlike Loughlin) seldom have any sort of pulpit, bully or not, and it becomes pretty obvious that there are two forms of justice in our courts, criminal and civil. Doubt you this? So, tell me that a civil party (say, Microsoft) would get so routinely railroaded by putative “scientific” evidence as criminal defendants do, like bite marks and fingerprints and other specious “expertise”? Nope, the adversarial testing we take for granted in civil matters, indeed the very basis to the 700-series rules of evidence, somehow vaporizes when there’s a criminal in the dock. And we all know it, and don’t do enough about it, whether attorneys, judges, reporters, anyone else who could shed the necessary sunlight. Shame on us.
There are some people here who think that I should reach through the computer and smack the living shit out of those assholes who are new here, unaware of what I’ve written in the past and feel it’s their right to ignore the narrow topic of a post in order to raise what they feel should have been the point, at substantial length, bad writing and limited coherence.
I, however, do not think that because I am not a violent person, even if the commenter is a clueless yet lazy dolt who feels entitled to riff off my topic as if this was their platform and they need not be constrained by the same limits as everyone else here.
But you could probably get Cher in here to take care of it. Her calendar should be pretty open.
Maybe the prosecutors believe in the utilitarian theories of punishment.
John Danaher.
(1) If utilitarian theories of punishment are true, it is right and proper to punish people if doing so will serve one (or more) of the following goals: (i) preventing repeat offences; (ii) deterrence; (iii) moral education; or (iv) emotional catharsis for victims of crime.
(2) It is possible that punishing innocent people could help us to achieve goals (i)-(iv).
(3) Therefore, if utilitarian theories of punishment are true, it could be right and proper to punish the innocent.
Prosecutorial motivation isn’t the problem. That’s why we have judges.
But the judges aren’t doing their job. If they were and really sanctioned the misconduct, then the violations would stop, or at least lessen.
Or is this a non-lawyer missing the point again?
The “solution” to judges not doing their job is judges doing their job, not coming up with excuses for why prosecutors suck.
Well, that, and still being elevated to the next judicial rung, rather than having their own bells rung by them that control said elevation and having to stay on the trial bench as a punishment.
When you have young judges, you have ambitious judges.
“. . . a preponderance of evidence that is beyond a reasonable doubt . . .”
Huh?
“Clear and convincing” got in there too. Like a 1-L regurgitating words in a blue book exam, but not understanding which are applicable.
All animals are equal, but some are less equal than others..
Are you saying the “rules’ are broken?
If so.. WTF are you waiting for?
You could be the founding father of the new guild association.
It never ends esteemed one!
P.S. Writing bylaws is fun! If you need any help let me know,
P.S.S. There are no original thoughts in this post. C-
C- is still passing. I can live with that.