WHERE WE STAND — The Amicus Briefs

WHERE WE STAND — The Amicus Briefs

Last week three amicus curiae (Latin for “friend of the court”) briefs in support of Dr. Mark Ridley-Thomas’s appeal were filed before the Ninth Circuit Court of Appeals. These friend of the court briefs merit our attention. They reflect the growing sentiment among Federal public defenders, bipartisan elected officials, civil rights legal scholars and observers alike that MRT’s March 2023 conviction on various bribery, conspiracy and honest service fraud charges should be reversed or, at the very least, warrant a new trial.

We stand by their three respective conclusions. First, the United States Attorney’s Office (USAO) used its prosecutorial discretion to fabricate a unique and unprecedented interpretation of the laws governing honest services fraud and bribery to prosecute Mark Ridley-Thomas. Second, the chilling effect this prosecution represents on legitimate policy making and regular political behavior has far reaching implications for the functioning of representative democracy. Third, the USAO removed representatives of the one demographic group - Black women - in the jury pool whose life experiences could best distinguish a “thing of value” from “optics.”

As understanding of the case expands, the motivations of the USAO are being questioned. Suspicions raised by the arguments advanced in the briefs underscore calls for constraints on government prosecutors’ headlong rush to criminalize basic and essential aspects of electoral representation.

Further, we make note of the fact that these friend of the court briefs come from an impressive and diverse array of advocates. Former Los Angeles County Supervisor Sheila Kuehl and former California Republican Party Chair Jim Brulte, a former state legislator (Assembly and Senate), are signatories to the brief that describes the violation of state sovereignty as well as the “chilling effect” on public policy and democratic representation this case would have if allowed to stand. The government’s theory is unprecedented and we believe unconstitutional. Unless overturned, this decision could open the floodgates to prosecution of routine government operations targeting both elected officials and constituents.

According to the Kuehl-Brulte brief, the prosecution’s interpretation of honest services fraud interferes with the normal, customary representation of elected officials and would subject well-meaning contributions made by politicians to non-profit entities and academic institutions to prosecutorial investigation and indictment. No longer would an elected official freely participate in ribbon cuttings or related honorific events they may have had a hand in supporting (e.g. facilitating meetings, granting a zoning variance, shaping programmatic design, funding and promoting innovative demonstration projects, endorsing grant applications, etc.) for fear that doing so might enhance their “electability” optics, and therefore subject them to criminal prosecution.

This is relevant because MRT was one of the most effective and powerful politicians in California. He enjoyed an unparalleled record of servant leadership before his unwarranted October 2021 indictment. He represented the University of Southern California, a key institutional constituent, for three decades as an elected official, where he received numerous accolades as an alumnus, advocate and public servant. He accessed the university’s academic talent and resources in ways that benefitted and strengthened his district. And most importantly, Dr. Ridley-Thomas adhered to and complied with State and local conflict of interest disclosure and campaign finance laws and regulations.

Because the case involves matters and actions that are at the core of constituent representation, the actions taken by MRT in compliance with relevant State law threaten to place the lawful efforts of other elected officials in jeopardy if this conviction is allowed to stand. To allow this conviction to stand would not only be dangerous, but it would be an unmistakably proactive threat to good government.

“The United States Supreme Court has greatly limited the use of the federal fraud statutes. The verdict in this case is clearly inconsistent with these precedents,” stated Erwin Chemerinsky, dean, UC Berkeley School of Law. “This decision, unless overturned, threatens to give enormous power to federal prosecutors over local governments across the country."

The friend of the court brief filed by current and former Federal Public and Community Defenders in nearly every region of the Ninth Circuit’s jurisdiction, from Alaska to Guam, discusses the danger posed by the unprecedented interpretation of the honest services fraud statutes by federal prosecutors in USA v. MRT. It challenges the government’s definition of “nepotistic optics” as a “thing of value” that can be exchanged for an official act. It amplifies fallacies associated with the conviction that form the basis for the appeal: The “bribe” MRT “conspired” to obtain and received was the avoidance of “nepotistic” optics that posed “reputational harm” in exchange for support of a contract extension he previously supported. No personal enrichment or financial benefit was involved. Lawful actions and representational obligations or opportunities that enhance “electability”, the brief argues, are no more tangible “things of value” than ribbon cuttings and honorific gratuities, like photographs with notables, guest appearances at events, awards and honorary degrees.

Finally, an array of legal scholars, historians and racial justice centers weigh in on the impact the exclusion of Black female jurors can have on jury deliberations by arguing that intersectionality (the distinct ways being Black AND female) can contribute to the evaluation of evidence. Better than most, Black women recognize a “thing of value” when they see it based on real life experience. That something as nebulous and subjective as “nepotistic optics” would constitute the basis for a bribe almost certainly would be met with a greater degree of skepticism. We believe this was the basis for their elimination from the jury pool by the prosecution.

Each friend of the court brief in its own way amplifies at least one of the arguments made in the appeal opening brief concerning the definitions of (1) bribery, (2) things 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.

These friend of the court briefs help us to understand Dr. Mark Ridley-Thomas’s appeal. We stand with MRT’s friends of the court and by the questions they raise about: (1) the value of “nepotistic” optics, (2) efforts to criminalize subjective perception, and (3) understanding the critical importance of the perspective Black women can add to jury deliberations.

We see through the USAO’s anti-democratic attempt to perpetuate cynicism among voters by turning ordinary exchanges critical to representative government into grounds for federal prosecution. We certainly hope the Ninth Circuit Court of Appeals and the broader public will as well.