Like a lot of my posts, this one builds on previous work. In my last post I suggested you NOT go back and read my previous work on the subject. This time around I can strongly recommend you do the opposite, that you reread my previous post. And the reason is simple. One of the two people I am featuring in this post is someone most people have forgotten about. His name is Lance Ito. Who? My point exactly.
Mr. Ito was the presiding judge in "the trial of the century". The century in question is not our current one but the one that immediately preceded it, the twentieth century. Specifically, the trial ran from November of 1994 to June of 1995. The trial was a murder case that was handled by the State of California and the defendant was one Orenthal Julius "OJ" Simpson. He was acquitted even though most observers, including myself, thought he was guilty.
The trial was "the trial of the century" on one sense. It was covered more extensively and more intensively than any other trial from any century. The cable news landscape was quite different at the time. CNN had been founded in 1980 but both MSNBC and Fox News only date back to 1996. There were a couple of "business news" channels around (CNBC, founded in 1989, and Bloomberg Television, founded just in time at the beginning of 1994). But the business news channels covered business, And the OJ trial had no "business" hook. And CNN considered itself a "serious news" channel at the time. They devoted a lot of coverage to the OJ trial but did not go "wall to wall".
But the trial, and the events leading up to it, were covered intensively, not only in southern California, where all the events happened, but nationally. All of the network affiliated TV stations in my market (Seattle) broke in to cover the infamous "Bronco chase" (see my previous post for details). This left the local stations no alternative so you could literally flip from channel to channel to channel and see roughly the same feed on all of them.
Okay. That should give you enough information to convince you that you should definitely read my previous post. So here's the link: http://sigma5.blogspot.com/2014/06/the-oj-trial.html. These events happened long enough ago that even people who were paying attention at the time have forgotten the details. In my previous post I covered many aspects of the trial. Here I want to focus on only one of them.
Judge Ito is still alive, although he retired from the bench a few hears ago in 2015. Going into the trial he had a good reputation. He emerged from the trial with his reputation in tatters. It never recovered. The OJ trial is a prime example of the influence, for good or ill, that a judge can have on judcicial proceedings.
And the OJ trial was unlike most trials in one aspect, an aspect that turned out to be critical. The state of California gives judges the option of letting proceedings be televised. Judge Ito okayed television coverage. So literally everyone could effectively sit in the courtroom and observe the proceedings.
Courts have been experimenting with TV coverage as long as TV has been around. A couple of early experiments led to a circus atmosphere. For one thing, the lights had to be extremely bright for the TV cameras of the time to work. For another, lots of people played to the cameras rather than observing standard courtroom decorum. That led to most courts banning TV cameras most of the time.
But by the time of the OJ trial those sorts of problems had been ironed out. TV cameras had gotten a lot better so lighting did not need to be especially bright for everything to work. And everybody had gotten used to the process. Judges had developed effective techniques for keeping everyone in line. So the presence of TV cameras did not have a direct effect on the proceedings.
What did have an effect was that the audience could see and judge the behavior and effectiveness of the various players. And they did. And the score card had a profound effect on several of the key players. As I reported in my previous post, the reputation of F. Lee Bailey, up to this point considered a superstar lawyer, plummeted. He just didn't seem to have a good grasp of what an effective defense strategy would be. The person who did was Johnny Cochran. He went from being someone that no one had heard of to having the kind of superstar reputation that Bailey lost.
Bailey lost the most but Judge Ito was also a big looser. Again, as I laid out in my previous post, Ito received a failing grade from most observers for the way he managed his courtroom. Rather than rehash my previous post let me make two observations. The key prosecution witness was a cop named Mark Furman. It turns out Ito's wife had been his supervisor at one point and Furman was on record as having said derogatory things about her.
Th other observation I want to make is that Ito's behavior had a substantial negative effect on the prosecution's case and a substantial positive effect on the defense's case. This is probably a good thing in many cases as the prosecution has substantial resources and most defendants have few or none. The prosecution should be forced to make their case. On the other hand, if the prosecution has s solid case they should be allowed to put it on. Ito really didn't let the prosecution do this.
And that's not the worst of it. Furman entered Simpson's property even though it was secured by citing a combination of "probable cause" and "exigent circumstances". It is likely that they didn't exist. If the evidence obtained this way had been thrown out then it is not clear that the prosecution had a case. In my opinion, ruling that the evidence, and all evidence that followed from it, was inadmissible, would have resulted in the prosecution losing fairly.
Finally, Mr. Simpson was not a normal defendant. He was well known, had many powerful friends, and had substantial financial resources. In these cases there is no justification for the judge being anything but even handed.
Now let me move on to the second person named in my subject line, Mr. Ellis. He is Federal Judge Thomas Selby Ellis III. He is a "Senior" judge, which means he is semi-retired. This is appropriate because he is close to eighty years in age and has been a Federal judge for more than thirty years. What has brought Judge Ellis to my attention is that he was the presiding judge on one of two cases recently brought against Paul Manafort. It turns out that there are a surprising number of similarities between the Manafort and the OJ cases.
In both cases the Judge was much harder on the prosecution than on the defense. In both cases the defendant had the wealth and power to mount a substantial, well resourced, defense. And in both cases the prosecution was burdened with putting on a complicated case while the defense had a much easier time of it.
The venue in which Judge Ellis serves is notorious as being the home of the "rocket docket". Judges try hard to move cases through quickly. They try hard to get both sides to pare their cases down to a few key items in dispute and to provide a minimum of support for their view of the issue.
Again, in the abstract, this is a good thing. It is unjust to force defendants to wait long periods of time, often in jail, simply waiting for their case to come up. If cases are short then more cases can be heard in a year and the backlog can stay short and cases spend minimal time in scheduling limbo.
But again it is incumbent on the Judge to let the prosecution prove their case if they can. In the OJ case a serious argument can be made that the prosecution did not make their case. This is definitely not true in the Manafort case. The prosecution presented substantial and compelling evidence to support each and every aspect in their case. And, unlike in the OJ case, the Manafort team provided little or no reason to call any of the prosecution's case into question.
In the OJ case, Judge Ito was a fan of Johnny Cochran, the eventual lead defense attorney. In the Manafort case, the Judge regularly expressed the opinion that the crimes Manafort was being charged with were "chicken feed" (not his characterization but equivalent to what he did have to say). He also opined that the only reason Manafort was in front of him was because he was as a stepping stone to bigger fish. And not all of this happened out of the hearing of jurors.
And a case can be made that the Judge was right. It has long been the case that white collar crimes, anything illegal perpetrated by men in suits and not using violence, does tend to result in a light sentence. It is probably true that the Judge could find earlier cases prosecuted in his district that had resulted in sentences being handed down that were roughly in line with the sentence Manafort received.
But that's the problem. Lots of people have received far harsher sentences than Manafort's for crimes most of us would characterize as far less serious, There are lots of people serving hard time in the Federal Prison system for non-violent drug crimes. But that just makes it worse.
And the decades long effort to make sure that sentencing is uniform and appropriate is a response to this. That's why the federal sentencing guidelines exist. They can get it wrong. But this only comes about if there is something in a particular case that is not appropriately handled by the guidelines. There was nothing like this in Manafort's case.
The guidelines start with the "type" of each crime the defendant has been convicted of and assigns a score. The scores are added up to produce a preliminary sentencing range. Then adjustments are made based on "mitigating" and "aggravating" circumstances. This is an entirely mechanical process of so much for this and so much for that.
If a defendant does this (i. e. enter into and execute a "cooperation agreement" with the authorities, demonstrate an understanding of his crime and show true remorse, etc.) then then based on the type of mitigation, the sentencing range is adjusted down. If a defendant does that (i. e. is a repeat offender, attempts to tamper with a witness, etc.) then a similar process is used to adjust the sentencing range up.
This process was done in the Manafort case. In short, there were several aggravating factors and no mitigating factors. The defense team did not challenge any of the findings that went into the sentencing recommendation. The Judge had spent the entire trial haranguing the prosecution to speed things up and don't take any detours. So the prosecution kept is short and said "we agree with the sentencing guidelines as is" rather than spending a lot of time on the subject.
So what did the Judge do? He in effect threw the sentencing guidelines out the window and, on his own, issued a sentence that was roughly 20% as long as the guidelines. Judges are given wide discretion to reduce sentences but they are expected to provide justification. Technically, the Judge did provide a justification. But the justification was wholly inadequate.
The first thing he did was ignore or grossly mischaracterize facts entered into the record as the case proceeded. He characterized Manafort as having led a "blameless" life. The trial record says differently. Evidence was introduced of Manafort engaging in various criminal activities over at least a decade. These crimes were perpetrated solely to increase the wealth and power of Mr. Manafort. In short, they were the kinds of things a Mafia kingpin would do.
He made a lot of money promoting the activities of various thugs and criminals who spent a lot of time and effort in opposing the interests of the United States. So Manafort was manifestly anti-American. These people also spent a lot of time undermining and subverting the institutions on which civilization depends, things like the very court system that Judge Ellis is a key part of. This is hardly the behavior of a blameless man.
And then there is all the lawlessness he engaged in after he was convicted of eight crimes and pled guilty to a slew of others. He then chose to enter into a cooperation agreement with the authorities and violate it repeatedly.
On the other hand, the Judge assigned heavy weight to a number of routine letters of support. Anyone as rich, powerful, and well connected as Manafort would have no trouble wrangling such letters. I'm sure Mafiosi could too. And they would be similarly effusive. And similarly meaningless.
The only thing that sticks in this whole sorry mess is the Judge's contention that white collar crimes usually result in light sentences. This, unfortunately, is true. Horrible damage was done to the economy and the lives of many thousands of people by the wretched excesses of Wall Street that led to the crash of '08. Nobody, with the possible exception of a single low level flunky, went to jail. There were almost no prosecutions.
And that means that there is little reason for the people who perpetrated that great disaster and similar other lesser disasters have any reason to change their behavior. And they get paid outrageous sums to keep doing the same thing. We should not be surprised that rich and powerful people often engage in bad behavior. They have every reason to do so and, thanks to people like Judge Ellis, there is little likelihood that they will pay a heavy price for their bad behavior even if they are caught and convicted.
The reforms that led to the sentencing guidelines that the Judge ignored were one feeble attempt to put things right. And the Manafort case is the poster child for why prosecutors are reluctant to bring these kinds of cases. They are hard to develop. They take a lot of hours of work by skilled people to put together. They require the prosecution to place a complicated case before jurors, keep them from getting confused, and prove all the elements.
That is very hard to do. It is particularly hard if a Judge Ito is permitting the defense to throw in interruption after interruption. Or if a Judge Ellis is disparaging the fact that you even brought the case in the first place while simultaneously saying "move things along" and " stick only to the essentials".
And you have the results in these cases. OJ gets off completely. Manafort gets a ridiculously light sentence. And the Manafort case in particular was a slam dunk. The prosecution had extensive documentation (which they were repeatedly told to keep to a minimum) and compelling witnesses like "salt of the earth" employees of small businesses that Manafort did business with. The OJ case could have been a slam dunk if the LAPD had done high quality police work. But they didn't. Even so, that case was still pretty compelling.
In many cases white collar crimes are much messier. Multiple bad actors can be blamed. This is definitely true in the crash of '08. It wasn't caused by a single individual but by a whole corrupt system. But cases normally need to be brought individual by individual. The Manafort case involved substantial, voluminous, and substantially complete documentation. (Manafort's number two, Rick Gates, flipped and was able to provide invaluable assistance). In white collar crimes the record is often far from complete.
But white collar crimes are often more damaging to society than other types of crimes that are routinely dealt with far more harshly. And the Manafort case brought the dual nature of our justice system into sharp focus. There is one system of justice for Manafort and others with wealth, power, and a network of well connected friends. Then there is an entirely different system of justice for the poor, marginalized, and powerless.
Those people do not have the resources to mount the kind of defense Manafort did. His defense was incredibly weak. They did not seriously challenge a single aspect of the government's case. They certainly had the resources to locate and exploit any weaknesses. The only thing I can conclude is that there were no weaknesses in the prosecution's case.
But in the end what they did do was effective. They said Manafort was a nice, well educated, and successful man who had not been caught before and who knew a bunch of people who would attest to the fact that he was a family man and the kind of guy they liked to be associated with. That turned out to be enough to get 80% of Manafort's sentence to go away.
Ultimately the OJ case accelerated the change in the "news" away from news and toward sensationalism. It had no impact on how the LAPD did business or how courts, either at the state level or anywhere else, operated. OJ is out of jail, finally, but he is now an old man.
It remains to be seen what impact this particular case will have. I think it will not have much. Manafort was convicted of crimes in two jurisdictions. The sentencing phase has not yet taken place in the second jurisdiction. More importantly, "Manafort" is only a small star in the much larger galaxy of scandals that is the Trump Administration. If substantial change is going to occur, it will most likely be a consequence of the gravitational pull of the black hole that is at the center of this large assemblage.
Finally, both cases make even more clear that "justice" is in the eye of the beholder. There are lots of people that feel that the OJ case was decided correctly. There are lots of people that feel that the Manafort case was decided correctly. It no longer matters much what the facts in either case are. All too often today beliefs are held not because of the facts but rather in spite of the facts. That, more than anything else, needs to change.
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