Hidden evidence reveals hidden agenda in ‘Varsity Blues’ case

The "Varsity Blues" case in federal criminal court involving actress Lori Loughlin alleged illegal actions to improperly admit her daughters to the University of Southern California as athletic crew recruits, despite never having participated in the sport. As the case continues towards trial, exculpatory evidence supporting the defense position that any monies paid were believed to be a donation to USC has finally been disclosed.

The central cooperating witness, and admitted mastermind William Singer, wrote notes in his iPhone following conversations with the assigned FBI agent detailing the agent's attempts to have Singer lie to more fully implicate the parents he contacted. These notes were known to the government since October 2018 but were only recently disclosed to the defendants. Singer was provided a tracked and cloned iPhone to use to communicate with targets of the investigation, including Loughlin, to gather damaging evidence. The government argues his notes about the conversation were intended for his attorney and should have been written on his personal iPhone.

Putting the notes on the government iPhone made the notes available for immediate access and review by the government. Loughlin's defense is built on her stated belief that the monies paid were a donation to USC, not a bribe. The agent's own notes from the conversation known as "302s" would have been available to the government since the October 2018 conversation and required no vetting prior to disclosure to defense counsel. The memo section of the withheld 302 is the key part. This is a combination of what the agent was able to write down during the interview and his recollection, but may not be drafted contemporaneously to the interview. It may list the questions and the answers or simply be a narrative of what the witness said.

The witness generally doesn't see the 302 or get a chance to correct any perceived mistakes before it is finalized. Agents memorializing their notes must sign the form verifying the accuracy of information contained within it. Although the 302 is no more accurate or thorough than a layperson's recollection of a conversation or notes, it carries a great deal of weight with trial juries and grand juries. The government can weaponize these in several ways including the manner which they have employed in the Varsity Blues cases -- withholding the 302 until they are forced to turn over the information to the opposing party. The government can also use them as weapons of intimidation against a witness by waving the document in front of a jury or grand jury and suggesting that the witness is lying or committing perjury because the agent's 302 form is different from the witness testimony. This is a document the witness has likely never seen or verified. These forms can be drafted days, weeks or even years after the conversation they purport to memorialize.

Several defendants in the Varsity Blues case have pled guilty and been sentenced to prison under the mistaken belief that their defense counsel had received and reviewed all relevant information, especially exculpatory evidence such as 302s in the case prior to entering a guilty plea. It is as much a United States attorney's duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88 (1935).

In this case, the guilty pleas already entered by the co-defendants are "open" pleas meaning the defendants are not promised a certain sentence. The agreement to plead guilty is only the beginning of a long process. The sentencing judge determines whether the defendant goes to prison and for how long based on the information submitted for sentencing including anything exculpatory that may have lessened the culpability of the defendant.

Some of the defendants may have chosen to proceed to trial instead of making the life-altering decision to enter a guilty plea to a felony had they been in possession of those notes. For the government to withhold the exculpatory evidence and accept the pleas knowing the evidence existed is operating in bad faith. In Loughlin's case, the government withheld evidence crucial to her defense then punished her by adding charges when she insisted on going forward to defend herself in trial. The withheld evidence not only supports her defense theory but also reflects on the credibility of the federal agents involved in the case and exposes attempts to improperly influence a key witness.

The ethical canons provide that the prosecutor should not "intentionally" avoid pursuing evidence when he believes it will damage his case or aid the accused. Beyond these minimum requirements, however, a prosecutor has a professional responsibility to investigate his case thoroughly in order to diminish the chance that an innocent person will be charged or that a guilty one will be acquitted. Sitting on evidence that impugns the integrity of the investigating agents impedes justice. The government was aware of this evidence and did not follow up to determine whether the agent had attempted to influence a key witness to commit perjury to bolster the case. 18 U.S.C. 1512 makes it a crime to attempt to obstruct justice by influencing or intimidating a witness. By ignoring the allegations of witness intimidation, the United States Attorney's Office and Department of Justice not only withheld crucial evidence in an ongoing criminal matter but also failed to investigation possible felony conduct by one of its investigation agents.

The government must be held to answer. Dismissal of the additional charges is only the beginning. Any defendant who has already entered a plea should be given the opportunity to withdraw their plea or alter the terms based on the newly disclosed evidence. The attorneys for the government are licensed professionals subject to the same rules of ethics and standards as other practicing attorneys. To allow them to blatantly subvert justice without swift, certain severe consequences is to undermine the integrity of the entire case, and worse, the entire criminal justice system. 