Monday, August 06, 2018

"Prosecutors will decide..."

That was the catch-phrase in John Oliver's take on why the criminal justice system is in shambles. He ticks through a bunch of the problems that result from letting prosecutors control the system: the trial tax, what discovery is produced, no accountability for misconduct, and so on.  One example:
“Prosecutors typically get to decide whether something is relevant to the defense, which seems inherently flawed,” said Oliver. “You can’t just count on an adversary to voluntarily expose all of their weaknesses. In Star Wars, the rebels had to steal the Death Star plans. The Empire didn’t just email it to them with the subject line FWD: GIANT STUPID WEAK SPOT (VERY DUMB, GO TO TOWN).”
It's below and definitely worth a watch.

In the Manafort trial, the judge is actually standing up to the prosecution team and trying to limit irrelevant evidence. But the prosecutors aren't used to someone else deciding. So they have resorted to disrespect and anger. From Politico's article "Manafort prosecution's frustration with judge leads to fiery clashes":

For days, U.S. District Court Judge T.S. Ellis has been cracking the whip at prosecutors in the Paul Manafort fraud trial, prodding them again and again to keep the case moving forward and to drop matters he considers irrelevant.

Prosecutors’ frustration with those exhortations spilled out publicly Monday in a series of prickly clashes in which Ellis snapped at one of special counsel Robert Mueller’s prosecutors, Greg Andres, and Andres sometimes lashed back at the judge — something lawyers rarely do.

The day’s first significant altercation came as Andres sought to question Manafort’s former deputy, Rick Gates, about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.


Ellis said he wanted to give Andres an “opportunity to educate me” about the usefulness of the testimony about Ukraine’s political system and why wealthy individuals were paying millions of dollars to back Manafort’s work as a political consultant.

“I don’t see any earthly relationship” between testimony about “political contributions” and the alleged tax evasion on Manafort’s part, the judge said.

Andres took issue with calling the payments political contributions, and he appeared to fault Ellis for minimizing the significance of the payments in his comments in front of the jury

“These people are not making political donations,” the prosecutor said. Calling the donors “oligarchs” — a term Ellis banned the government from using in front of the jury last week — Andres explained that their livelihood was completely dependent on government-granted monopolies.

“That makes it even clearer to me” that it’s not relevant, the judge interjected. “It doesn’t matter whether they’re good or bad or oligarchs or crooks or mafia or whatever. … You don’t need to throw mud at these people.”

At that point, Ellis noted that Andres was looking at the lectern. “You’re looking down as if to say, ‘This is B.S.,’” the judge complained.

Andres seemed angered by the accusation and said the judge was leaping to conclusions. “We don’t do that to you,” the prosecutor said.

When the judge mentioned an earlier complaint he made about lawyers rolling their eyes, Andres interrupted again and the atmosphere grew tense. “I find it hard to believe I was both looking down and rolling my eyes,” he said.

Andres pressed on with his argument that the payments to Manafort were not political contributions, this time adding the charge that every time the government tried to elicit testimony about why the payments were made, “Your Honor stops us.”

“The record will reflect I rarely stopped you,” Ellis insisted.

“I will stand by the record,” Andres snapped.

“And you will lose,” the judge shot back.


Anonymous said...

Why do you say the evidence is irrelevant? The judge is abusive like so many others.

Anonymous said...

From afar, and without having closely monitored this, it seems that the judge is right. During the government's case in chief, what does the source of money have to do with whether it was reported or not? If memory serves, the claims being tried are tax evasion charges. Either: a) you reported the money, or b) you didn't. Now, if on the defendant's case in chief, the defense says that the government witnesses are lying about the amount of money, and that the defendant reported all of the money - now, on cross, as a matter of impeachment for the purpose of getting into issues of credibility, you can go back to the source of the money and say that the defendant received the money from an illegitimate source.

The source of the money is not an element of the government's claim, therefore, it is irrelevant and should not be admitted during the government's case in chief.

Elements. Elements. Elements.

Anonymous said...

Because part of the evasion was to conceal the fact that he was an agent for a foreign government. He was making too much money from very bad people.

Doesn't matter anyhow, can't fight with the will always lose, and the jury will never side with you unless it is a one way judge beating on the lawyers for no reason. The jury will assume all of the judges rulings are right and that the lawyers are being disrespectful for not abiding by them.

Anonymous said...

Oliver should have said

“Prosecutors typically get to decide whether something is relevant to the defense, which seems inherently flawed,” said Oliver. “You can’t just count on an adversary to voluntarily expose all of their weaknesses. The FBI had to deal with the Clinton emails. Clinton didn’t just provide them it to them with the subject line FWD: GIANT STUPID WEAK SPOT (VERY DUMB, GO TO TOWN).”

Anonymous said...

Abuse by a judge is not right no matter whether it's directed at the government or defense. He should be removed from the bench.

the trialmaster said...

This judge sounds like a real dick. Reminds me of another Virginia judge I tried a big drug conspiracy case in front of a Judge Hand. An old geezer who sided with the Government and actually met with and had lunch with the Prosecutor during the trial. And he freaked out when I called him on it.

Anonymous said...

The whole Oligarchs references and wardrobe expose of the first day is DOJ 101: demonize the defendant, even if only by association.

He is not charged with money laundering, the source of the funds is immaterial.