Outside the Beltway

What The YSL Trial Chaos Says About Our Criminal Legal Systems

What out of control prosecutors and judges actually look like and why more people should be treated like former President Trump

Matt Bernius · Friday, June 14, 2024 · 8 comments

If you have not been following the Young Thug/YSL RICO trial, you’ve missed a heck of a week. Here is the tl;dr: During testimony last Friday, Kenneth Copeland, a witness who was testifying for the prosecution began to get squirrely on the stand. He avoided questions and took the fifth at times. Sometime this past Monday morning, the witness, his lawyer, and the prosecution met with the judge in the case, the Chief Justice of the Fulton County Superior Court Ural Glanville. During this meeting, the prosecution threatened Copeland that if he wasn’t more cooperative on the stand, they could send him to jail until the end of the trial. Someone, most likely Copeland’s attorney or someone connected to them, informed Young Thug’s defense attorney, Brian Steel, about the meeting. I’ll let the Washington Post take over from here:

Approaching the lectern after an afternoon break, Steel told the judge that an unnamed source had provided him details of the meeting between Glanville, prosecutors and Copeland, a sworn witness who was jailed Friday for contempt after he refused to testify in the case.

Steel alleged that Copeland reaffirmed his refusal to testify during the Monday meeting and that Glanville and prosecutors told Copeland he could be jailed until the end of the trial if he refused to cooperate. He said the conversation prompted Copeland to change his mind and take the witness stand Monday.

“If that’s true, what this is is coercion, witness intimidation, ex parte communications that we have a constitutional right to be present for,” Steel told Glanville.

“How did you come upon this information? Who told you?” Glanville demanded.

When Steel refused to divulge his source — claiming it violated attorney-client protections and “work product” privilege — Glanville ordered him held in criminal contempt and taken into custody.

https://www.washingtonpost.com/nation/2024/06/10/young-thug-attorney-contempt-brian-steel/

Things spun further out of control from there. Steel was allowed back into the courtroom to continue the trial. He made multiple motions for a mistrial, all of which were denied. He also requested a transcript of the meeting; that, too, was denied. The Fulton County DA’s office also denied any wrongdoing. At the end of Monday, Glanville sentenced Steel to 20 weekend days in Fulton County Jail beginning Friday*. On Wednesday, the Georgia Supreme Court stayed enforcement of Steel’s contempt charge, keeping him out of jail, pending appeal. For more details on what happened, see this Washington Post’s great explainer article.

Did the judge and prosecution really do something that bad? YES, YES THEY DID!
It’s hard to articulate the spiral of bad this was. While the prosecution held that it was ok because the meeting was about a potential contempt charge against Copeland, under no circumstances should a judge and prosecutor be meeting with a witness without the defense present. This is doubly true for a witness still under oath.

Worse yet, there is the fact that apparently, during this meeting, the witness was threatened with an open-ended jail sentence. To add important context here, this trial has been going on for over a year with no end in sight. To be clear, the law does allow that type of incarceration. However, the defense is entitled to know that, just as they are entitled to know if someone is testifying in exchange for immunity (as is the case with Copeland).

Without curative actions (and possibly even with them), these are legitimate reasons to declare a mistrial. Or overturn the conviction on both State and Federal grounds.

So that by itself is bad. The judge then made it all worse by holding Steel in contempt for refusing to answer a question. First, the judge asked for information they had no right to under Georgia statute. Further, my understanding (or rather Ken White, aka Popehat) is that, because this spins out of actions taken by the judge, the issue of whether or not Steel was in contempt should have been overseen by another Judge.

Ok, that sounds bad. Was this collusion between the prosecution and the judge?
Maybe, maybe not, probably not intentionally. Without a lot of investigation, there’s no way of knowing if this was some sort of vast conspiracy. As a humanist, in cases like these, I default to Hanlon’s razor: never attribute to malice that which is adequately explained by stupidity. There’s a very good chance that this started as a simple mistake/oversight. Then egos got involved, and things spun out of control.

Let’s put a pin in that issue and come back to it in a bit.

OK, so it might not have been intentional, but it was that bad! Still, it’s just one trial in one county. Why should we care?
Oh my sweet summer child, where to start? First, this isn’t just any trial in any county. This is a RICO trial brought by Fulton County by the same office that… checks notes… indicted former President Trump on RICO charges. To reiterate a point I brought up a while ago, I side with experts who feel District Attorney Fani Willis chose an overly complex strategy for charging former President Trump. I was willing to provide some benefit of the doubt to her. However, the affaire de Wade and other things around the case continue to call into question her judgment (especially if anyone hoped the case to start prior to the 2020 election). The fact that her office was a party to a, using a professional term here, fuck up this bad, is another strike against the possibility of a successful prosecution. As The Wire taught us, if you come at the king, you better not miss! My faith in her office’s aim, when there is a robust defense at play, is definitely shaken.

That point about “robust defense” gets me to my second point. The only reason we learned that meeting between a sworn witness, the prosecution, and the judge happened without the defense was that Young Thug was able to hire well regarded defense attorney who was willing to get get in a judge’s face about it. In another trial with a lesser defense attorney, or a witness attorney who wasn’t willing to share what happened with the defense, no one would know that such a thing happened.

That’s a great example of how the system is stacked against the defense (and, therefore, the defendants) in most cases. Yes, this was a particularly egregious case. I’m choosing it as a foundation for this article exactly because it demonstrates how much power the judge and prosecution hold and how easy it is for unintentional collusion. And all of that is before we get to cases of intentional collusion. That inherent power imbalance is a part of our system we all need to care about.

OK Bernius, I guess I’m with you. You promised me some Trump stuff in the subhead, were is it some I can violently (dis)agree with you? Does Soros pay you by the word?!
I wanted to write about this to compare what is unfolding in Fulton County to what happened in Manhattan District Court. A caveat before moving forward, though: as I have come to learn, we don’t have A criminal legal system (CLS) in the US. Because of different criminal statutes, we have many, many, many systems: at least one for each state and another one at the federal level (plus military, tribal, etc.). And since everything plays out at the county level, you could argue we have over 4000 CLS. Your treatment in one county can be completely different than in the county next door. This is a huge challenge for those of us who want a fair and equitable system.

Republicans and conservatives (including some commenters here) and their hangers-on (like professional contrarians Jonathon Turley and Alan Dershowitz) have spent much of the past few weeks raging at how unfairly former President Trump was treated by “the system.”

To some degree, they have a point with regard to charging. If former President Trump was anyone else than former President Trump he probably would not have been charged for what he did. That said, we could extend that argument to both what Hunter Biden was charged with and the revocation of his plea deal. For the sake of this post, I honestly don’t care about that. Instead, I want to focus on the treatment of President Trump during his trial.

Once you cut through partisan BS, the reality is the former President and his attornies were treated with kid gloves. If you don’t believe me, I recommend reading the Lawfare article Appellate Issues in the Trump Hush Money Case: The Extraordinary Ordinariness of Justice Merchan’s Adjudication by Lee Kovarshy. Professor Kovarshy is Bryant Smith Chair in Law at the University of Texas and is a defense attorney by practice. Kovarshy looks at many of the most commonly advanced “injustices” in Conservative media and does a thorough job of unpacking the flaws in that thinking, especially in looking at the State and later Federal Appeals process. Because of its density, I cannot easily break it into digestible chunks. However, I stand by the conclusion it reaches:

Even though some appellate issues are nonfrivolous, the media has grossly overstated the conviction’s vulnerability. Many of the mistakes are made in good faith, but many are not. … But Justice Merchan’s trial adjudication was was pretty banal, if you set the identity of the defendant aside.

https://www.lawfaremedia.org/article/appellate-issues-in-the-trump-hush-money-case–the-extraordinary-ordinariness-of-justice-merchan-s-adjudication

On the one hand, I agree that the trial adjudication was generally pretty banal (i.e., commonplace)—especially for those who have engaged in court watching. On the other hand, I would push back on banal to the degree that Trump and his attorneys were allowed to get away with behavior that would (as we see from the case of Steel) easily get them held in contempt in other courtrooms.

There’s a recent illustration of this that comes to mind. A week ago, Judge Merchan sent a memo to both sides in the Trump prosecution that someone had responded to a post to the Court’s Facebook page that “My cousin is a juror and says Trump is getting convicted.” The post most likely was made prior to the verdict being delivered. Some in the conservative info-sphere, including Greta Van Susteren the former President himself, suggested that this “revelation” was grounds for a mistrial. It was later revealed that the person who posted the comment self-identified on their Facebook page as a “professional shit-stirrer.” Barring any new revelations, it appears that the individual was trolling.

Contrast that level of care against what played out this week in the YSL trial and you see the real difference between an out-of-control judge and prosecutor and what played out in New York.

Cute anecdote… why does that matter? And will this post ever end?!
I share the example of the way Merchan handled trolling on the Facebook page for the same reason I used the example of the level of patience he displayed with Trump’s antics within the court. This is, generally speaking, the way that the criminal legal system should play out at all levels across the country.

Do I think the former President was treated this way out of the goodness of the Judge’s heart? No. I think much of this came out of a judge’s understandable desire not to be overturned on appeal. And that concern was there because the judge, correctly, knew that no matter what happened, the results would be appealed. And that means that every “i” was crossed and every “t” was dotted (or something like that).

This gets me back to the point I put a pin in before. It’s highly unlikely that under these circumstances, a judge and the prosecution would intentionally conspire to exclude the defense from a meeting with a witness. It’s also highly unlikely that the judge–or, for that matter, the prosecution (because, trust me, they don’t want to be overturned either)–would have mistakenly allowed such a meeting to happen. More thought would have been put into the meeting. And even if it had mistakenly started, want to believe (and here’s where I may be off the rails) that someone would have realized what was happening. Or retrospectively, it would have been caught and cured (if possible) without holding the defense in contempt in order to protect one’s own ego.

Trump treatment for all!
This gets to the end of things. I’m not advocating that Trump should be treated like Young Thug (or, perhaps more importantly, an indigent defendant).

Let’s face it, that’s most liberals’ baseline on these things is, “If Trump was a [insert minority/oppressed group here], he’d never be treated that way. He should be treated like everyone else.”

I agree with the first sentence. Let’s work on flipping the second sentence on its head! What happens if we work to try to enable everyone to be as fairly treated as Trump was?