Ed. Note: Below is part two of the debate, with Miami criminal defense lawyer David Oscar Markus‘ response to Atlanta’s Andrew Fleischman’s post, In the Criminal Justice System, Wealth Is A Huge Advantage.

The criminal justice system crushes people.  Men and women.  Black and white.  Rich and poor.  A federal criminal case impacts your liberty, your family, your finances, your mental health, and every other aspect of your life whether you are rich or poor.  Each broad category of defendants faces their own hurdles in the system.  There is no question that poor defendants face enormous challenges in trying to mount an effective defense again a government with unlimited resources, what Andrew rightly calls “a bit like [fighting] a grizzly bear.”  There’s an unfortunate perception out there, however, that the governmental grizzly bear isn’t as interested in gobbling up the rich.  But that perception is wrong.  This particular bear loves plump and shiny prey.

Let me briefly explain some of the disadvantages that rich, well-known defendants face in the system:

1. Prosecutors target rich, well-known defendants. Prosecutors love making headlines.  They love being seen as tough on everyone. Take the case of John Edwards, for example.  Abbe Lowell explained during this episode of my podcast For the Defense that Edwards was prosecuted for committing the sin of adultery and not really for any federal crime.  Andrew perpetuates the false narrative that campaign contributions can get the rich out of being prosecuted.  I’ve never seen that happen.  Typically it’s the campaign contributions that are used as an excuse to prosecute, as in the Edwards case.  I could cite example after example of weak cases that were only brought because of who the defendant was, not the supposed crime.  Prosecutors also love to get doctors, lawyers, and politicians because it gets them awards and praise.  F. Lee Bailey discussed exactly that regarding his defense of Sam Sheppard.
2. Speaking of making headlines, prosecutors publicize cases against the rich and famous much more than other cases.  Here’s a piece I wrote about the phenomenon, explaining DOJ’s chutzpah in plastering the presumed innocent defendant all over the news and complaining when that same defendant tries to fight back. Andrew questioned whether this is also true in state cases.  It is, especially where prosecutors are elected and are trying to make splashy headlines to obtain name recognition.  Take, for example, the Duke Lacrosse case as an example of an absurd case brought by an elected prosecutor against the rich in an effort to make headlines and get elected.  Any state practitioner will be able to rattle off other election-driven prosecutions in their jurisdiction.
3. Courts oftentimes deny bail to wealthy defendants because they are wealthy.  (And even when they are going to get bail, prosecutors enjoy arresting wealthy defendants to force the perp walk instead of letting them surrender.) It’s wrong. For starters, when is the last time some rich defendant was able to run and not get caught?  Even El Chapo got caught, for goodness sake.  Pretrial detention is way overused for the rich and the poor.  Unless the defendant poses a real and current danger to the community, it’s hard to think why someone presumed innocent should be kept in a cage while trying to fight the government.  It’s one of the reasons trials have dropped from 20% to less than 3%.  And to top it off, high profile defendants, like Michael Avanetti and Ghislaine Maxwell, often end up in solitary confinement before trial, unable to effectively prepare a defense. The prison system says it’s for their own protection, but that’s absurd.
4. Prosecutors love to use evidence of wealth to prejudice a jury.  It’s a common theme in every white collar trial.  And jurors eat it up.  Take the upcoming trial of Elizabeth Holmes, CEO of Theranos.  The government, over defense objection, will be able to present “wealth evidence” even though as the defense points out: “That Ms. Holmes enjoyed a certain lifestyle – one that is commensurate with the lifestyle of many other CEOs – says nothing about whether Ms. Holmes committed fraud to obtain or maintain that lifestyle.” Prosecutors routinely introduce evidence of fancy homes, cars, planes, and boats that have nothing to do with the case other than to evoke schadenfreude from the jurors.  Andrew allows that this point is “interesting,” which is quite a bit of progress from his first reaction to my article.
5. White collar defendants are receiving huge sentences traditionally reserved for terrorists, murderers, and child pornographers.  As Walter Pavlo explains in this article: “The fact is that the Federal Sentencing Guidelines are out of line and the sentences that many white collar defendants receive are much harsher than they might appear because of inflated guidelines that few believe in.” Sentences for federal drug cases are trending lower (as Congress rightfully has started to fix things like the crack/powder ratio) while white collar sentences for first-time non-violent offenders continue to trend higher.

These are just a few examples.  You get the point.  The system does not take it easy on wealthy defendants.

Andrew cites two reasons why the poor have it harder than the rich.  Let me say right off the bat that I didn’t mean this to be a competition.  I don’t dispute for a second that the poor suffer greatly in our system.  And they suffer in ways that the rich do not suffer.  My point is that the perception that the rich get off easy is wrong.  That said, there are flaws in Andrew’s argument.

First, he argues that “choosing the correct lawyer” is critical.  Well, of course, that’s true.  But as a former assistant federal defender and Criminal Justice Act Attorney, I can tell you that in most federal cases, indigent defendants get better representation than the defendants who try to hire a private lawyer.  And there are plenty of lawyers who charge an arm and a leg who are pretty terrible while the defenders are consistently the best law firm in town.  Nevertheless, no one would honestly dispute that it’s a great advantage having resources to fight the government in a criminal case.  No argument from me there.

But when a wealthy, well-known defendant puts together his dream team, the government will not treat that defendant like any old defendant.  Take the Kaley case that Andrew references.  I know that case well, as I was her trial lawyer.  Forfeiture sections of U.S. Attorney’s offices have become hyper-aggressive.  Because she wanted to fight, the government tried to take her money and her home, upping the ante significantly over a less well-to-do defendant. So too with so many other examples.  I pointed to the Lori Loughlin case as an example.  The prosecution was an absolute stretch and the government really tried to bully her into pleading guilty.  The allegations of prosecutorial misconduct were breathtaking.  Why did the government go to such extremes over a case of alleged college cheating?  You got it – once a high profile case is brought, there’s enormous pressure on the prosecutor to win even if the case stinks.  Not so much with a case that isn’t making headlines.

Second, Andrew says that “a good lawyer might … talk[] to a detective and investigators ahead of trial.”  Again, no dispute here. The more resources you have, the more you can do and the better defense you can mount.  But in my article, I was focusing on how the government and the system treat the rich and famous.  My point, which Andrew doesn’t really address head on, is that the rich don’t get a pass from the feds because of their money or fame.  Instead, that money and fame typically leads to the government employing additional resources itself: experts, jury consultants, paralegals, trial presentation software, and so on.  Being able to employ resources against the government is, of course, one advantage that wealthy defendants enjoy, but it is wrong to think that they will be able to level the playing field against the government, which has unlimited resources.

Andrew also asserts that the rich don’t have to worry about finding makeup to cover up their tattoos like gang members do and concludes that “jurors seem to hate almost all criminal defendants on some level.”  Perhaps.  The intrinsic dislike of our clients probably should be the subject of another essay; however, the feds love pointing out the wealth and fame of defendants when they can because it immediately turns jurors off.  I rarely see, on the other hand, prosecutors pointing out the difficult financial situation of a criminal defendant unless they can use it to show motive.  The gang member is not targeted because he’s poor or because he has tattoos. On the other hand, federal prosecutors absolutely target people who drive fancy cars, live in big houses, and make headlines.

Thanks to Scott for hosting this debate.  I love being a criminal defense lawyer and representing the rich and poor alike. My hope in engaging in this debate and writing on the issue is that people start to realize that the rich do not enjoy get out of jail free cards.  The grizzly bear will eat them just as quickly as anyone else, and if that bear is looking for a big meal, it will seek them out.