SPECIAL REPORT: Appellate & Amicus Legal Teams Educate MRT Supporters
Prepared by Vincent M. Harris and Brett D. Louie
United States of America vs. Mark Ridley-Thomas is attracting national attention as a result of his appeal to the Ninth Circuit Court of Appeals with the filing of no less than three friends of the court briefs from legal scholars, civil rights lawyers, university-based justice centers, bi-partisan politicians and federal public and community defenders. The briefs underscore the significance these constituencies attach to the issues raised in the case and the threat posed by the expansion of prosecutorial power if the conviction and sentence are allowed to stand. On February 29th, appellate and amicus counsel briefed an interested and motivated group of USA vs. MRT observers.
These friends of the court briefs demonstrate that this case is no longer limited to the conviction of Mark Ridley-Thomas. It prompted a KBLA 1580 Talk Radio Editorial by nationally syndicated host Tavis Smiley that slammed the race and gender discrimination in jury selection process highlighted by a recent Washington Post op-ed.
At trial, the prosecutors resorted to repetitive and confusing arguments shrouded in legal complexities and fundamental misinterpretations of the law in a manner that served to distort MRT’s lawful behavior. In a sign that the Ninth Circuit is prepared to unravel this complexity, the court waived the word count limitations associated with the brief submitted by MRT’s appellate counsel over the objections of the United States Attorney’s Office (USAO).
When combined with MRT’s own Appellant’s Opening Brief, the three friends of the court briefs constitute a compelling counter narrative to the prosecution’s narrative about power and privilege. Each friend of the court brief in its own way amplifies the arguments made in the appeal concerning the definitions of (1) bribery, (2) thing of value, (3) honest services fraud, and (4) the ability to receive a fair trial based on juror exclusion. They support the appeal’s contention that MRT’s conviction was based on a novel misapplication of the law linked to either a fatally flawed, overly expansive, and dangerous legal theory or, even worse, errors made by the trial court that effectively denied him a fair trial. They reveal a much different picture about the use of power and privilege – one that is unfavorable to prosecutors in the USAO.
The issues raised in this case are extremely significant and merit comprehensive understanding by those who care about truth, justice and fundamental fairness.
What follows are excerpts from the presentations given by appellate and amicus counsel:
Michael Schafler: “So we're right around the 6 month mark since we filed the Notice of Appeal and we've had some victories along the way both big and small, but all are important. We started off with a very big victory, which was making sure that MRT would have bail pending appeal and you can see how long this process takes. This is why that was so critically important — to be able to have [access to our client] while this long process takes place; and to have MRT be with us and be part of the team and do all the things that he does. So after we filed the Notice of Appeal (September 11, 2023), the Appellant’s Opening Brief was filed on January 25th. It’s a public document and we are very proud of the product.”
Professor Robert Chang: “My colleagues and I worked on another case before the High Court in New York. In that case, the prosecutor struck dark skinned women of color in a case involving a Black criminal defendant. And so the question was, “What do you do?” In that particular case, they had seated 2 other South Asians, and we actually had to make the argument that colorism was something that they could recognize. So for me, the issue of discrimination in jury selection is one that I've been involved in for over a decade. I must say, it drives me crazy how much discrimination I see in juror selection involving defendants of color. In theory, there is this test, it’s called Batson, based on a case where the US Supreme Court in 1987 said, if the prosecutors strike a prospective juror, defense counsel may ask or make the argument that the person was struck for an improper reason, let’s say, race; as MRT’s legal defense team stipulated during (March 7, 2023) jury selection [regarding the two Black women excluded from the jury pool].”
Miles Pope: “It's wonderful to be here and it's been an education for me to hear from the other presenters so far. It’s really a testament to what MRT has done for his community, and a testament to his character. The best way to introduce the federal defenders’ perspective is with an anecdote from my own personal experience with the criminal justice system dealing with prosecutors professionally. In one instance a prosecutor wryly asserted, ‘I'm particularly proud of how I secured that conviction despite the utter absence of any evidence of guilt.’ Often in presenting their case, they draw on the community’s anxieties and jealousies, and prejudices, and they weave together stories for their own subjective conceptions of justice. I think that's exactly what the ‘thing of value’ interpretation that the government advanced in this case enables them to do in the honest services fraud context. The prosecutor is able to take sort of big, inherently subjective, sweeping standards and pour this sort of toxic mixture of prejudice and kind of insinuation into them and all of a sudden you have a client who's being prosecuted for who they are more than what they did. I feel like it popped up in this case and that's why the federal defenders weighed in, and that's why I think it's quite a righteous appeal.”
BRIEF OF FORMER CALIFORNIA OFFICIALS AS AMICI CURIAE IN SUPPORT OF APPELLANT MARK RIDLEY-THOMAS
Mira Hashmall: “First, I want to start by just acknowledging the exceptional nature of the appellate team working for MRT on this matter. They truly are brilliant and really, really skilled at what they do. And so, our task in drafting an amicus brief in this context is not to retread or reargue issues that are thoroughly and thoughtfully covered in the merits brief, but instead to try to bring a different lens, a different perspective so that we can hope that the three judge panel, whoever it is in the Ninth Circuit, is looking at things from a broader perspective and with the benefit of some common sense. I think about how we all have sort of felt during this journey for MRT and Avis and their family. You know, it's a disconnect between the headlines and corruption and the reality of the facts and the evidence and the character of MRT. What was really a primary focus in our brief was to ground what actually was proven in MRT’s trial with what is permitted, authorized, and addressed in the context of California politics, and more specifically the very, very complex super technical law that governs what politicians can or cannot do with money. With money that they raise, money that their constituents donate – this is not something that California hasn't already thought about. Our legislature has, and there's a very complex scheme that governs what you can do and what you can't do. And so on one hand, you have federal prosecutors who were trying to criminalize a transaction because they say it had some amorphous reputational benefit. And then on the other hand, you have California law that says it was all legitimately documented and structured, in a manner consistent with how we permit our elected officials to use funds of this sort."
Editor's Note: The USAO will submit their response on April 8 and MRT’s reply is scheduled for May 29. Following the briefing, the court will hear oral arguments this fall.