Cosby’s Release from Prison Had Nothing To Do With Guilt or Innocence

When the Pennsylvania Supreme Court reversed Bill Cosby’s conviction for sexual assault and ordered him released from prison, the reaction was immediate, vociferous, and often wrong.

Over the last few years, allegations about Cosby have arisen with such frequency that his public persona no longer bears any resemblance to Cliff Huxtable. His trial and subsequent conviction for sexual assault effectively put an end to a reputation tied smilingly to JELLO commercials.

As a general rule, a state’s supreme court will overturn a conviction based on some flaw that occurred during trial. These flaws cover a large variety of problems, ranging from bad legal representation to improperly admitted evidence to jury misconduct. The Cosby conviction had none of these. So why was the conviction reversed and what does it way about his guilt or innocence?

To understand what happened here, we need to talk about something called “prosecutorial discretion.” Prosecutors are given a tremendous amount of leeway in deciding whether or not to prosecute someone and to decide what charges, if any, should be brought. 

When a prosecutor declines to bring charges, many factors come into play. There may not be enough clear evidence of the crime. The witnesses may not be reliable. The alleged criminal may be cooperating in another investigation. Considering the prosecutor’s workload, the case may simply not be as important as others that are pending. The list goes on and on. 

The decision about whether to bring charges may also change over time. Cold cases may be resurrected with newly discovered evidence or charges may be dismissed when it becomes clear that the defendant was not really guilty. 

The Cosby case put a spotlight on prosecutorial discretion in the context of one’s right not incriminate yourself. 

At the time that prosecutors were considering bringing criminal charges, Cosby was also facing lawsuits brought by some of his sexual assault victims. These were “civil” lawsuits looking for money damages.  The plaintiffs in these cases had a problem. The only person, other than the victim, who could describe the circumstances of the alleged assaults was the defendant, Cosby. Cosby was refusing to testify in these cases, claiming that whatever he said in the civil cases could also be used against him in a criminal case. On other words, his right against self-incrimination in one arena (the criminal court) meant that he could refuse to testify in the civil cases.

Here is where prosecutorial discretion came in. The prosecutor told Cosby that he would not be charged in a criminal case. Thus, with the threat of self-incrimination removed, he had no option but to testify in the civil cases. Although Cosby ended up paying significant money in the civil cases, at least he was not charged as a criminal. 

Years passed and a new prosecutor came onto the scene. Using the prosecutorial discretion discussed above, the prosecutor determined that there was now enough evidence to bring Cosby to trial—that evidence being his testimony in the civil cases. Cosby was convicted and sentenced to jail. 

Cosby appealed the conviction (while serving time). He said that even though prosecutors have wide discretion, they may not later change their minds after I have incriminated myself. Cosby had relied on the good faith of the prosecutors and suffered for it. The state’s attorney countered that if a concern about self-incrimination was really that important, you should have gotten the agreement in writing at the time. 

The Pennsylvania Supreme Court reversed the conviction in a 79-page opinion.  It was not an easy decision to make. 

We do not dispute that this remedy is both severe and rare. But it is warranted here, indeed compelled. … Society’s interest in prosecution does not displace the remedy due to constitutionally aggrieved persons. 

What makes this case so unique is that there is nothing in the opinion that talks about Cosby’s guilt or innocence. There was no claim that the jury erred in finding Cosby guilty of sexual assault. Rather, the Court emphasized that prosecutors, even with all of their discretion, may not take away one’s Constitutional rights by later deciding to bring charges.

This case illustrates why justice is never an easy matter. Cosby’s new-found freedom does not come with innocence. And we should take solace in that.

It Helps if You Actually Read the Indictment

There is a lot to unpack from the indictments Thursday of Allen Weisselberg and the Trump Organization. As I always say, remember that an indictment is not proof of guilt. That is why there are pre-trial motions and ultimately a trial on the merits.

At this stage of the proceedings, you can expect a lot of posturing. Remember that none of what the lawyers and political pundits say is relevant to the proceedings. In particular, you should disregard “whataboutism.” If I’m a line of 20 speeding cars and I’m the one who gets pulled over, it is no defense to go in front of a judge and say “others were speeding too.” It is also no defense to say that I’m a Democrat and the arresting officer was a Republican. The correct, and only, defense is that I was not speeding.

Much of the initial defense and media focus is on the treatment of “fringe benefits.” The argument is that this a gray area in the tax code and a great many businesses reward their most valued employees in the same way. Therefore, the defendants here are being singled out for doing what a lot of others are also doing.

If these fringe benefits are, in fact a gray area, would you, as a large organization want to take the chance (over a period of more than 10 years) that you and your employees could be criminally liable?

Assuming that you wanted to avoid potential liability, there is a mechanism in place to protect yourself. It is to request a private letter ruling (PLR) from the IRS. These letters are issued all the time and offer specific protection to the individual or company requesting them. Most non-lawyers have not even heard of PLRs, mostly because they get little media attention and appear to be tediously dull and boring. Naturally, I enjoy reading them.

Weisselberg and the Trump Organization did not go the PLR route to protect themselves.

Back to the title of this article, it helps if you actually read the indictment. The most clearly illegal conduct, if proven, has nothing to do with fringe benefits. I’ll focus on just one of those allegations here.

Weisselberg was obviously a long-term employee of the Trump Organization. So, whether you include or exclude some of the fringe benefits, we know that he received a wage statement (W-2) that reflected his earnings during the year.  However, he also received checks as a NON-employee from Mar-a-Lago and other Trump organizations. In other words, he, as an employee of the Trump Organization, simultaneously claimed he was an independent contractor as far as Mar-a-Lago was concerned. As a non-employee, the money he received from Mar-a-Lago was reported on tax form 1099.

Why was it beneficial for Weisselberg to simultaneously be an employee and an independent contractor? The answer has to do with a special tax benefit available to independent contractors that is not available to employees. As an independent contractor, he was able to contribute to a KEOUGH plan, which is a tax-deferred pension plan.

Thus, in one pocket Weisselberg was collecting benefits associated with employment, and in another pocket he was collecting benefits for being an independent contractor. You can’t do both for the same organization.

As next steps, you can expect a number of preliminary motions from the defense. It would also not be surprising the see additional charges against Weisselberg (and perhaps other defendants) coming from the grand jury.

Regardless, this process will unfold over a series of months, not weeks. 

Fifth Circuit upholds Sanctions Against Democratic Voting Rights Activist Marc Elias.

 Marc Elias is probably the preeminent Democratic lawyer in the field of protecting voting rights. His reputation is well deserved, particularly in the context of post-election litigation. These post-elections cases were decided almost universally in his favor. Since that time, he has changed his focus to challenge a variety of state laws that, he claims, are designed to disenfranchise voters. In one of these cases, he sued the Texas Secretary of State.

Texas courts have a long and well-deserved reputation for being staunchly Republican. The Fifth Circuit Court of Appeals, which includes Texas, also leans strongly Republican. The reality, then, is that any Democratic challenge in that state begins as an uphill battle.

Elias fared poorly in the early stage of his lawsuit. It makes little sense for me to get into the weeds about the process and arguments here. Unless you understand how a court’s specific local rules can affect a proceeding, any attempt at explanation would be fruitless.

Suffice it to say that Elias not only did not strictly comply with the local court rules, but his attempts to “correct” the issues violated others. The Court determined that Elias’ filings and legal arguments lacked the candor required by the court and he was subsequently sanctioned for his actions. (Sanctions here meant that Elias had to pay the other side’s attorney’s fees and court costs.)

Elias appealed the sanctions to the Fifth Circuit Court of Appeals which today upheld those sanctions against him personally but reversed them against his junior associates (who apparently did not have enough experience to know better).

It is not relevant whether or not I believe the sanctions were warranted. What IS important is something that all lawyers know. Not every court you appear before is a friendly one; some might be outright antagonistic to you.

When faced with an unfriendly court, you must be sure to scrupulously follow the court’s local rules. Failure to do that will ensure that any arguments you make, regardless of their potential legal validity, will fall on deaf ears. Technical violations are violations nonetheless and give the court an easy way to dispose of cases that could otherwise be problematic.

I write a lot about lousy lawyering and many of my articles have been about deficiencies by Guiliani, Powell and Wood, who are unabashedly Republican. Frankly, they are easy targets. I thought it particularly important to discuss the failing of a Democratic attorney, if for no other reason than to show that my analysis is intended to be legally rather than partisan based.

The My Pillow Guy Has a Bridge to Sell You

About the time you think that Mike Lindell’s comments cannot be further removed from reality, you get his most recent screed. The latest is that Donald Trump will be “reinstated” as President by the fall (previously April, then August, but who’s keeping track). He says this will happen because of a 9-0 vote from the U.S. Supreme Court that will set aside the 2020 election.

It takes a delusional approach to the judicial system to come to this conclusion. There is simply no mechanism for the Supreme Court to even hear this case, much less to decide it 9-0. Zero. Zip. Nada. As a physician once told me: “there is no miracle without a mechanism.” And here, there is no mechanism to generate the miracle he promises.

So what we have here is simply a lie. One of the first things we are taught as a child is that sometimes we lie unintentionally. These lies, once discovered, are corrected, both a matter of personal integrity and to avoid harm to others. The principle is beautifully encapsulated in the tenth step of Alcoholics Anonymous. “Continued to take personal inventory and when we were wrong promptly admitted it.”

Whether due to ignorance or pathology, some people cannot admit to a lie. Instead, they double down or make even more egregious claims. When a personal who hawks pillows for a living does this, rational people will simply tune him out.

My main thrust here, though, is not to excoriate Lindell as much as he deserves it. Rather, it is to contrast his actions with that of lawyers who have a much higher duty of care to speak and act honestly. Many in our profession have a bad reputation, and deservedly so. We take an oath to act with utmost integrity and candor. When we violate that oath, in some cases by doubling down on lies, the public rightfully expects that lawyers should police ourselves and punish those who violate the public trust.

Legal sanctions that are being currently directed at lawyers like Rudy Guiliani, Sidney Powell and Lin Wood are not only legitimate but required in order to protect an unsuspecting and often gullible public. Most lawyers facing discipline will be contrite and apologetic. We have no use for the others.

Schrodinger’s Conspiracy – the Dog Ate My Evidence

Back in February, I wrote about a lawsuit in Texas where the lawyer claimed massive conspiracy and fraud to prevent Trump from a second term of office. The defendants included the current President, Vice President, all members of Congress and others.

The fraud was so pervasive, he alleged, that the only viable remedy was to essentially abolish two of the three branches of government and replace them with a temporary “steward”. The situation was analogous, he said, to the Lord of the Rings trilogy where, and I’m quoting from the complaint here:

[T]he rightful King of Gondor had abandoned the throne. Since only the rightful king could sit on the throne of Gondor, a steward was appointed to manage Gondor until the return of the King, known as “Aragorn,” occurred at the end of the story. This analogy is applicable since there is now in Washington, D.C., a group of individuals calling themselves the President, Vice President, and Congress who have no rightful claim to govern the American People.

In legal circles, this lawsuit has been lovingly referred to a “Gondor I”. That complaint was subsequently dismissed and refiled as Gondor II. I noted at the time that this suit had zero likelihood of success.

Six months have passed and now the lawyer has approached the court stating he has a problem. From his pleading:

Essentially, Plaintiffs are requesting time to reevaluate and the chance to get a fresh start with an amended complaint that is workable under the circumstances.

Unfortunately, Plaintiffs have suffered severe setbacks in this case over the last few weeks as the result of a bad actor and saboteur in their own camp. Plaintiffs and counsel were assured many times over that financial resources and a cadre of co-counsel and legal staff were on the verge of being provided to give Plaintiffs the ability to litigate their claims against the vast array of Defendants in this case. Unfortunately, these assurances turned out to be empty promises presumably designed to lead Plaintiffs on and discredit their legitimate claims in this case.

To make matters worse, the same individual responsible for leading Plaintiffs on was also responsible for managing, reviewing, and summarizing much of the evidence being presented to Plaintiffs’ counsel from various witnesses to support many of the factual allegations in Plaintiffs’ pleadings. This individual has now parted ways with Plaintiffs’ legal team after being confronted on various suspected deceptions and is now refusing to turn over this evidence that was in his possession and that supports many of Plaintiffs’ claims in their pleadings. 

Yep. The dog ate my evidence. The Court is unlikely to have much sympathy for a lawyer who filed not one, but two, cases without having the evidence in his possession and is seemingly unable to obtain it elsewhere.

The lawyer has asked for a 90 pause in the proceedings to figure out what to do next. He has another problem not revealed in his pleading. He had sued more than 500 defendants who were supposed to receive legal service of process of the complaint. All of these attempts to comply with the service of process provisions were … defective.

So what we have here is what one commentator has called “Schrodinger's Conspiracy. Stop the steal is a widespread conspiracy with hundreds of people aligned to sabotage Trump. But it's simultaneously so surreptitious that evidence doesn't exist or was stolen.”

I said earlier that his lawsuit had zero chance of success. If anything, his odds have further diminished.

Guiliani learns that ignoring the Code of Professional Responsibility has consequences

Today, Rudy Guiliani’s license to practice law was suspended for numerous violations of the Code of Professional Responsibility. It is highly unusual for a license to be suspended before formal disbarment proceedings are completed but, according to the court, Guiliani’s total disregard for his responsibilities as a lawyer warranted the suspension.

They were being kind.

The ruling was replete with misstatements and outright lies made by Guiliani in a variety of public forums.

Before getting into some of those, we need to talk about gross stupidity. If you or I knew that our license was in possible jeopardy, we would make the strongest possible case in our defense. Guiliani had the opportunity to do just that in his brief in opposition to the suspension—and didn’t. A footnote to the Court’s decision lays out some of the deficiencies.

In opposition to this motion, respondent refers to affidavits he has not provided. He also relies on a “confidential informant”. We do not understand, nor does respondent explain why, as a private attorney seemingly unconnected to law enforcement, he would have access to a “confidential informant” that we cannot also have access to. At yet another point respondent claims he relies on a Trump attorney who chooses not to be identified. Respondent also refers to hundreds of witnesses, experts, and investigative reports, none of which have been provided or identified and an Excel spreadsheet, also not provided, purportedly listing the names of thousands of deceased voters who allegedly cast ballots in Michigan.

If you are trying to defend your license, this is not a good start.

The court made a special point of noting that lawyers have a heightened responsibility to tell the truth and not to purposely mislead the public. This is particularly true when you are regularly appearing on radio, television and at public events.

Guiliani had a demonstrated history of using inaccurate numbers and “facts” to support his claims of fraud in the presidential election. These ranged from wrong absentee voting numbers in Pennsylvania to wrong “dead voter” numbers in Georgia. When he was proven wrong in every case, Guiliani defended himself by saying that he received bad information from, among others, his legal staff, bloggers, websites and “experts.” Guiliani provided no excuse for perpetuating those lies even after the truth was presented to him.

Lying to the public is one thing. Lying to the court is another entirely. Guiliani did that too. You may remember his disastrous oral argument as the attorney for Trump, et al in the United States District Court for the Middle District of Pennsylvania. There, Guiliani argued that this was a fraud case, even though there were no fraud allegations in the complaint. The court went into some detail:

[Guiliani’s] mischaracterization of the case was not simply a passing mistake or inadvertent reference. Fraud was the crown of his personal argument before the court that day. In his opening remarks, respondent claimed that the allegations in the complaint concerned “widespread, nationwide voter fraud of which this is a part…." He persisted in making wide ranging conclusory claims of fraud in Pennsylvania elections and other jurisdictions allegedly occurring over a period of many years. Respondent argued that the plaintiff’s fraud arguments pertained to the canvassing claim, notwithstanding that there was neither a fraud nor a canvassing claim before the court. Respondent’s fraud argument spanned pages 12 to 31 of the transcript. 

These violations of the Code of Professional Responsibility are easily enough to sustain a disbarment. However, since this is what is called an interim proceeding, the Court needed evidence that Guiliani should be immediately suspended because his conduct threatens the public interest.

Often, these interim proceedings go no further because the respondent demonstrates a change of conduct. In other words, they’ve learned their lesson. As the court record indicates, Guiliani continued to promulgate lies even after the disciplinary proceedings began.

The court made its decision clear.

[W]e conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee.

Now consider the response of Guiliani’s lawyers to the 33-page decision.

"We are disappointed with the Appellate Division, First Department’s decision suspending Mayor Giuliani prior to being afforded a hearing on the issues that are alleged. This is unprecedented as we believe that our client does not pose a present danger to the public interest. We believe that once the issues are fully explored at a hearing Mr. Giuliani will be reinstated as a valued member of the legal profession that he has served so well in his many capacities for so many years." 

Well, they had to say SOMETHING.

Guiliani’s license will remain suspended until the full disciplinary process is completed.

The Lion, the Witch Hunt and the Wardrobe

Following the issuance of the Mueller report on Russian interference in the 2016 election, Attorney General William Barr reported to Congress that there was insufficient evidence to charge then-president Trump with obstruction of justice. Trump then declared himself exonerated and that the entire process was a “witch hunt.”

The difficulty from the point of view of Congress and the public at large is that we were asked to simply take their word for it. To the minds of some, the conclusion of exoneration simply did not meet the smell test. Robert Mueller himself stated:

The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions.

What Barr had done with his report to Congress was brilliant. There were actually two distinct questions to address: whether the president had acted in a way that obstructed justice and, if so, whether the president, by virtue of being president, could be charged. Rather than answering both questions, Barr combined the two to arrive at his conclusion that the evidence was insufficient to charge the president. In other words, if the president, as president, could not be charged, it made no difference what he actually did. Unfortunately, based on Barr’s report and the highly redacted Mueller report, there was no way of determining whether obstruction of justice had actually occurred.

Enter the Freedom of Information Act (FOIA). By federal statute, government agencies may be compelled to release records upon request, subject to documents that fall within nine specific exemptions. In many cases, this requested information helps us understand the conclusions that agencies make.

Citizens for Responsibility and Ethics in Washington (CREW), who describe themselves as “a nonprofit 501(c)(3) and nonpartisan U.S. government ethics and accountability watchdog organization” asked the Justice Department for release of the underlying materials that supported Barr’s conclusions. Much of the information was released, enough to establish a timeline of communications that predated and postdated Barr’s report to Congress.

One critical document that was withheld was the analysis prepared by the Office of Legal Counsel that Barr said supported his conclusions. CREW sued the Justice Department in the Federal District Court to obtain that document.

The Justice Department defended the withholding of this document under one of the exceptions to FOIA, specifically that it was “pre-dispositional” -- “the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including . . . the executive deliberative process privilege.” Translating that into English, you do not need to release information that was put together to help you reach your decision., especially if that information falls within the attorney-client privilege.

Judge Amy Berman Jackson, under her authority as judge, reviewed all of the documents in private (called an in camera review). This review allowed her develop a timeline of events. What she found was perturbing to her. Even though the Justice Department (and through it Attorney General Barr) said that the Office of Legal Counsel memorandum formed the basis of Barr’s conclusion, it was, in fact, not delivered to the Justice Department until AFTER Barr’s report to Congress. In other words, Barr lied.

After extensive legal analysis, Judge Jackson determined that the document was not part of the decision-making process and did not fall within the exception to the production rules. The Department of Justice was ordered to release the document (subject to further objections and proceedings).

The court’s decision is, of course, more complex than the summary here and I have intentionally omitted portions that do not relate to his specific issue.

Reading between the lines of the opinion, one thing becomes clear. Even though Barr’s report to Congress combined the issues of obstruction of justice and whether a president could be charged, the memorandum apparently unpacks the two. If that is the case, we may finally find out how much evidence there was of obstruction of justice.

One side note: some right-leaning pundits have suggested that CREW may not be as non-partisan as they claim. This is a red herring that obfuscates the true issue. Regardless of the motives underlying the request for information under FOIA, we as the public have a right to information. What we do with it is another matter.