Ed. note: Anatole France wrote “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” But when it comes to federal prosecutions, is wealth always an advantage or can it also be a detriment?
The following post, by my former Fault Lines colleague, Atlanta’s Andrew Fleischman, is the first in a series of posts debating with Miami’s David Oscar Markus the issue, “Is Rich Law better than Poor Law?”
David Oscar Markus recently wrote an editorial on behalf of his clients, the family of Ghislaine Maxwell, in which he said that “the rich do not enjoy enormous advantages in a federal criminal case.”1 If anything, they are greatly disadvantaged.” I’d love to live in a world where this was true. But justice ain’t cheap, and the tools a criminal defendant needs to rebut the presumption of guilt our system heaps upon them often require significant investment.
First off, there’s choosing the correct lawyer. Justice Roberts was not exaggerating when he wrote that a defendant’s inability to pay for their counsel of choice “raises substantial concerns about the fairness of the entire proceeding.”
Few things could do more to ‘undermine the criminal justice system’s integrity,’ than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard.
But the grim reality for Kaley, a woman whose money for her lawyer was forfeited by the State, is a fact of life for the vast majority of criminal defendants who have no say in who will represent them. It can mean an experienced advocate who knows all the local players or a real estate attorney on a side hustle. It’s the difference between a lottery ticket and a paycheck.
Second, there are all the pre-investigatory steps that a good lawyer might take. That can mean talking to detectives and investigators ahead of trial, or, as in the former President’s case, offering substantial “campaign contributions” to elected prosecutors shortly before charges are dropped. Again, a powerful tool for the wealthy made totally unavailable to the poor. ‘
And the list goes on and on. Wealth can buy a cavalcade of experts to counter the State’s usual retinue. It can mean forensic tests, flying witnesses in from other states, and having the means to pursue your case outside of court—with publicists and hired spokespeople. They can comply with conditions of pretrial release without worrying about missing work. In the vast majority of places that require cash bonds, a wealthy person can pay their way out of jail without the usual begging of family members and friends to scrape up the money.
Mr. Markus focuses on some counterexamples, like Maxwell and Lori Loughlin, that received major press coverage and unfair treatment by the system. But unfair treatment by the system is virtually a given. We learn a lot more about the cases of the wealthy and fabulous being charged and treated harshly because those are man-bites-dog stories—the vast majority of people in our jails and prisons were making much less than the median wage before they got locked up.
As Markus admits in a different piece, Maxwell wasn’t targeted for prosecution and locked up because she’s a wealthy person, but rather because she hung out with the most famous sex offender on the planet. Others accused of more serious sexual crimes, but not saddled by the Epstein effect, have traditionally been released on bond. Not only has Maxwell been denied bond, she essentially has been placed in solitary confinement.”
And while her wealth was a factor in the denial of bond, so too was the strength of the evidence in the judge’s view , some arguments that Maxwell had lied to pre-trial services, and the fact that Maxwell could go to France immediately and the government could not be sure they’d agree to extradite her back, even with her waiver agreement in hand. It doesn’t seem likely that a poorer person would have done any better.
One interesting point that Markus makes is that wealthy people face discrimination from jurors. Do jurors feel a natural resentment and dislike for wealthy defendants during deliberations? Maybe. But they tend to feel the same way about gang members, drug addicts, people accused of sex crimes and on and on and on. Any lawyer who has tried to find the funds to cover up a client’s neck tattoos with a makeup artist knows the struggle of making them relatable to a middle-class jury. For the most part, jurors seem to hate almost all criminal defendants on some level, so it’s hard to say that the wealthy get the raw end of the deal—especially since they can always hire jury consultants to help them deal with the problem.
Ultimately, the federal government is a bit like a grizzly bear. When it comes for you, your survival is often more reliant on the bear’s restraint and mercy than the things you do to oppose it. But with the proper tools—a pistol, maybe, or a big frying pan, you can hope to scare the bear off to chase an easier meal, or land a lucky shot that puts it off its lunch. We can acknowledge how much it sucks to be chased by that bear without pretending that the tools don’t matter.
1 I sent a regrettable knee-jerk tweet before reading who wrote the article, and before reading the whole thing, which is typical of how dumb I can be on twitter.