Uh oh: Does new Varsity Blues discovery release exonerate Aunt Becky?

Could the most notable and arguably notorious couple in the Operation Varsity Blues college-admissions scandal have been telling the truth all along? Lawyers for Lori Loughlin and her husband Mossimo Giannulli had argued in court for weeks that the Department of Justice had withheld exculpatory evidence in their prosecution for bribery and mail fraud. Their payments to Rick Singer and USC to fraudulently push their daughters’ non-existent athletic careers to gain admission were intended as donations, not bribes, they claim.

Newly released discovery information proves their case, the defense attorneys claimed late yesterday:

Lawyers for “Full House” actress Lori Loughlin and her fashion designer husband, Mossimo Giannulli, said Wednesday that new evidence shows the couple is innocent of charges that they bribed their daughters’ way into the University of Southern California.

An attorney for the couple said in a legal filing that prosecutors provided the defense with notes written by the admitted ringleader of the college admissions cheating scheme that support the couple’s claim that they believed their payments were legitimate donations, not bribes.

“This belated discovery … is devastating to the government’s case and demonstrates that the government has been improperly withholding core exculpatory information, employing a ‘win at all costs’ effort rather than following their obligation to do justice,” attorney Sean Berkowtiz wrote.

The filing came on the eve of a status hearing in the case scheduled for Thursday at Boston’s federal court in the sweeping college admissions bribery case. It was expected that the judge would set a trial date for the parents still fighting the charges at that hearing.

The DoJ had just released notes between scam mastermind Rick Singer and his attorneys from prior to his plea deal. Normally, those notes would be privileged, but after cutting a deal, that privilege was waived in regard to other defendants. Why did it take this long for prosecutors to release those notes? It might have just been the necessity of parsing out what could be released. Or, it might have been this complaint from Singer to his attorneys when he was negotiating his deal:

In iPhone notes taken by Singer — who pleaded guilty to racketeering and fraud in connection with the college admission scandal last year — and shared between Singer and his defense attorney before he decided to cooperate with federal authorities, he claims the FBI wanted him “to tell a fib.”

Singer relates a discussion with FBI agents to his lawyer, saying, “Loud and abrasive call with agents. They continue to ask me to tell a fib and not restate what I told my clients as to where there (sic) money was going — to the program not the coach and that it was a donation and they want it to be a payment.”

Hoo boy. That goes right to the heart of the defense case — that Singer duped them into thinking these payments were going to the school as gifts rather than coaches as payoffs. One would have to imagine that prosecutors would need Singer to testify otherwise in order to make a case that Loughlin and Giannulli knew full well that they were bribing school officials explicitly for the purpose of defrauding the school’s admission process. All of the other charges flow from that critical allegation — the wire fraud and potentially a tax-fraud case too. If defense attorneys can impeach Singer on that point with his own notes, then they might not have a case at all.

Lead defense counsel Sean Berkowitz argued that this was not only exculpatory evidence but fully exonerating. He also castigated prosecutors for the long delay in turning this over during discovery:

“This afternoon, less than 24 hours before the status conference at which the Court intended to set trial dates in this mater, the Government for the very first time produced in discovery Brady information that is not only exculpatory, but exonerating for the Defendants the Government has charged with bribery,” Berkowitz wrote in the filing. “That discovery consists of Rick Singer’s written notes contemporaneously memorializing his discussions with FBI investigators about recorded phone calls that they directed him to make to his clients in order to induce inculpatory statements to be used against those clients in subsequent criminal prosecutions.”

“Singer’s notes indicate that FBI agents yelled at him and instructed him to lie by saying that he told his clients who participated in the alleged ‘side door’ scheme that their payments were bribes, rather than legitimate donations that went to the schools,” Berkowitz wrote in the filing.

The timing of this release does seem curious, to say the least. Loughlin and Giannulli defense attorneys accused the DoJ of hiding exculpatory evidence in December. Prosecutors responded in court two weeks ago that they had fully complied with Brady discovery and that they had no exculpatory evidence in their possession. “While the defendants may, understandably, be upset about the lack of exculpatory evidence,” they wrote in a brief to the court, “the absence of such evidence is a result of their criminal conduct, not any government disclosure violations.”

That sounds rather hubristic in retrospect. Prosecutors dismissed the claim that this was exculpatory, claiming that it was a “con man’s interpretation” of the conversation with FBI agents, but that’s going to be another problem for their case. Who would have Singer been trying to “con” in his own notes to himself and his attorneys?  If Singer’s word can’t be trusted in his own notes to himself, why should a jury believe Singer when he testifies that Loughlin and Giannulli knew that the money was a bribe and not a donation? Besides that, discovery requires that the prosecution release any information related to evidence or witnesses, including that which might tend to impeach them — and this certainly qualifies.

The DoJ now might face some tough questions from the judge in the case, especially after the filing earlier this month in which prosecutors essentially accused defense attorneys of making claims about discovery for PR purposes. It raises yet again the question of what the DoJ intended by cutting a deal with Singer to go after his clients. No one’s innocent in this scam, but it was Singer who ran it and he and the coaches and other school officials who profited off of it. Why did they cut deals with the actual scammers to go after the parents? Could it be that prosecutors wanted some celebrity scalps for their own purposes?

And finally, we have the FBI, whose reputation has taken serious body blows over the last few years, especially when it comes to interviews and interrogations. The bureau insists on using handwritten notes of these interactions (known as 302s) rather than audio or video recordings, and relying on people to just take their agents’ word for what transpired. That process needs serious re-evaluation, especially given the ubiquity of objective recording at all other levels of law enforcement. The FBI’s reputation for integrity isn’t what it used to be.

Continue reading at Hot Air