Lori Loughlin case should be dismissed if the prosecutors cheated

Putting aside whether we really want cheating on a test or lying on a resume to count as a federal crime, we can all agree that prosecutors should not be able to cheat to obtain a conviction — especially in a case about cheating.

Yet it now appears that federal prosecutors and agents in the Lori Loughlin case may not only have been cheating but then suppressing the evidence of their cheating until after they failed in trying to get her to plead guilty.

Recall that Loughlin and her husband are accused of bribing coaches at the University of Southern California with $500,000 to get their two daughters admitted. The money, according to the prosecutors, would go through the mastermind of the whole affair, Rick Singer, and then to the coaches. Loughlin has said from the beginning that she never thought that her money was going directly to a coach; instead she thought she was making a donation to the school or to the athletic department, which would be entirely legal. The prosecutors openly scoffed at this defense, saying that they had recordings of Loughlin and her husband which demonstrated that they knew the money was going to bribe the coach.

They did so even though there was documentary evidence that appears to back up exactly what the defense was saying.

The defense just learned — a year after the charges were brought — that Singer kept notes of his discussions with agents before he recorded his calls. Those notes, it turns out, seem to validate exactly what Loughlin and her husband have been saying all along. Singer wrote in one note, for example, that FBI agents got “loud and abrasive” and “continue to ask me to tell a fib and not restate what I told my clients as to where there money was going — to the program not the coach and that it was a donation and they want it to be a payment.”

In other words, Loughlin’s defense — that she thought she was making a donation to the program and not bribing a coach — was confirmed contemporaneously by the main government witness. That’s powerful exculpatory evidence.

There’s more. Singer wrote: “Essentially the [agents] are asking me to bend the truth.” The agents were trying to get Singer to “ask each p[arent] to agree to a lie I was telling them.”

It’s bad enough that agents apparently pressured their star witness to “lie” and “bend the truth,” but then the prosecution concealed these notes from the defense for over a year. The defense filed a motion to dismiss the case. The judge recently said that what occurred is “serious and disturbing,” and has ordered prosecutors to explain in more detail what happened before ruling on the defense motion.

The Loughlin case — of what appears to me to be prosecutorial misconduct — is not an outlier. Such things happen all the time — because typically, nothing happens to the case itself or to the prosecutors who committed the misconduct.

If the Loughlin judge wants to deter cheating — and isn’t that the whole point of this prosecution in the first place? — then he will dismiss the case.

If he simply scolds the prosecutors and allows the case to go forward, as so often happens, then we will continue to see this type of conduct again and again. Enough is enough.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.