Everyone deserves justice — even Paul Manafort

It is generally acknowledged that poor people face challenges in getting justice in criminal trials in the United States. However, the first few days of Paul Manafort’s trial demonstrates that rich folks too can face challenges — albeit different, but equally troubling.

Manafort is being tried for several crimes related to his lobbying work, including tax evasion, money laundering, and failing to register as an agent for his foreign clients. Yet the prosecution has spent much of the first week of trial trying to present evidence of Manafort’s wealth to the jury as if to suggest that because he is wealthy, he must be a tax cheat, money launderer and all-around scallywag.

{mosads}Poor people often find it difficult to find justice in our system because they lack the resources to pay for legal counsel and other costs necessary to present a vigorous defense. Rich people do not have that problem. But they often face the problem now facing Manafort — prosecutors using wealth and assets to suggest to a jury that merely because a defendant is well-off, the defendant is guilty. Such an argument does not satisfy the laws of logic, but it often succeeds in court.

Courts give prosecutors wide latitude in presenting evidence in criminal proceedings. The test is generally is whether the evidence is relevant. But relevant evidence can be excluded if its probative value, meaning its relevance to make a fact at issue in the case more or less likely true, is outweighed by its unfair prejudice to the defendant.

In cases where the defendant is rich, the defendant’s wealth can be used against them. Judges do not often stop prosecutors from doing this, leaving juries with the impression that “rich equals guilty” resulting in guilty verdicts not based on evidence of actual misconduct satisfying the elements of the crime charged.

As evidenced by their opening statement, the prosecution’s theme of their case against Manafort is that he is a rich guy who didn’t think the rules applied to him. The prosecution argues that his wealth is relevant because it is showing the jury the ill-gotten gains from Manafort’s allegedly illegal activity. Sadly, this has little to do with the actual elements of the charges against Manafort and even less to do with proving his guilt.

The probative value of evidence of Manafort’s wealth is substantially outweighed by its unfair prejudice to him receiving a fair trial on the actual charges. Trying a defendant on such extraneous issues is unnecessary and at odds with the notion of seeking justice rather than just convictions.

In most cases, prosecutors have ample evidence that does not pose an unfair prejudice and risk to a defendant being convicted because of extraneous issues, such as being rich. Rather, a prosecutor seeking justice should want a conviction based on evidence that the defendant committed the charged crime. And if there is not enough evidence to convict without resorting to such tactics, as the late Justice Robert Jackson suggested, the prosecution could do justice by not bringing the charges in the first place.

If Manafort failed to pay taxes on his income, the prosecution could present evidence of his income; the amount of the tax required to be paid by the tax code for that level of income; and evidence of what Manafort actually paid. If Manafort paid less than required, the fact that he used that money to buy expensive suits or a $21,000 watch does nothing to prove that he failed to pay the tax. It only serves to inflame the jury.

Additionally, if Manafort was required by the Foreign Agents Registration Act (FARA) to register as a lobbyist for foreign governments, the prosecution need only prove that he engaged in the type of activities that would have required him to register under FARA and that he did not do so. The fact that he bought a $15,000 ostrich jacket does nothing to prove that he failed to file the required FARA paperwork.

Manafort is being tried in the federal district court in Alexandria, Virginia, often referred to as the “rocket Docket.” Judges of the Rocket Docket take seriously the charge that justice delayed is justice denied — words boldly inscribed above the courthouse entrance. Trials in the Rocket Docket move swiftly and all lawyers, regardless of whether they are prosecutors or defense counsel, need to be on their toes to keep up. And these judges have little patience with either side venturing forth with extraneous evidence or arguments.

Presiding over the trial is Judge T.S. Ellis, III which is a good draw for Manafort. Judge Ellis has already shown that he has little patience for the prosecution’s “rich equals guilty” theme.

During opening statements, Judge Ellis admonished the prosecution. “It isn’t a crime to be profligate in your spending.” He also excluded some of the prosecution’s evidence of Manafort’s lavish lifestyle as it was not relevant to whether he committed the crimes for which he is on trial. He has also repeatedly admonished the prosecution for using the loaded term “oligarch” to describe Manafort’s clients, because the character of those clients is not relevant to whether Manafort paid taxes on his income or failed to register as a foreign agent.

If the prosecution persists with the “rich equals guilty” approach, Judge Ellis will continue to rein them in.

If, however, the prosecutors are smart — and they are — they will dispense with trying Manafort on his wealth, and get on with presenting evidence of tax evasion, money laundering, and failing to register as a foreign agent under FARA. On that evidence, Manafort can receive a fair trial and all sides can find justice.

David A. Warrington is vice president for election education of the Republican National Lawyers Association and Of Counsel at Kutak Rock LLP.