Tuesday, March 23, 2021


If you're interested, I'm debating Andrew Fleischman over at Simple Justice (Scott Greenfield's blog) on whether rich defendants face disadvantages in the criminal justice system.

Here's his opening post:

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.

Here's the intro to my response:

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.


Anonymous said...

A real estate lawyer is the alternative? He has no credibility.

Anonymous said...

Sherwin referred to OPR for the interview...

Rumpole said...

Can I advertise on my website for “plump and shiny clients “? David has a good point and a hard sell. We’ve all seen rich people buy their way out of cases. We’ve also seen wealthy people finance a successful legal defense that a client of modest means could not afford. But we have also seen prosecutors, especially the feds, target wealthy individuals. A wealthy person under investigation has two crosses to bear. The traditional issues of whether there is enough evidence to support a charge AND then the additional inquiry of if there is not enough evidence whether that decision will play out bad in the press because the target was wealthy.