Criminal law – looking back and looking forward

No one can accuse criminal law of being boring in 2022. It was a year filled with drama, surprises and reckoning. And it’s looking like 2023 will be bringing even more of it.

Over 2022, Los Angeles crime rates went up. The Los Angeles Times reported that homicides were higher in more than a decade and that gun violence reached a 15-year high. Robberies involving firearms were up 57% from 2020 and 60% from 2019. Property crime is up more than 5% over last year and vehicle thefts are up nearly 44%.

Los Angeles County residents, frustrated with LA County District Attorney George Gascon’s progressive policies, tried to trigger a recall but fell short by 50,000 valid signatures. This followed the successful recall of San Francisco District Attorney Chesa Boudin, Gascón’s successor and ally.

Interestingly, the Recall Gascon Committee collected a record 715,833 signatures, the most ever collected in Los Angeles County. The fight isn’t over yet though. The Committee claims to have uncovered substantial evidence that valid names were rejected, and voter rolls were inflated. Litigation is ongoing and we might see a recall election in 2023.

In response to recall efforts, Gascon changed his policy and is now permitting prospectors to try juveniles as adults and pursue life sentences against defendants in certain cases. The issues of cash bail, weapon enhancements, gang enhancements and strikes continue to be debated. Presumably, once crime rates decline, more consensus will be reached on them. It would be refreshing to see both sides of the table strike a happy medium.

We are also seeing that jurors are willing to convict individuals of sex crimes having taken place many years ago. On Oct. 20, jurors convicted James Mason Heaps, an obstetrician-gynecologist formerly employed by the University of California, Los Angeles, on five counts in connection with the sexual assaults of some of his patients. On Dec. 20, jurors convicted Harvey Weinstein of three charges – rape, sexual penetration by foreign object and forcible oral copulation – which were all tied to a model and actress who testified that Weinstein assaulted her in a Beverly Hills hotel room in February 2013. We saw the beginning of this trend in the Cosby trial. Notably, Pennsylvania’s highest court threw out Cosby’s sexual assault conviction and released him from prison.

Los Angeles Dodgers pitcher Trevor Bauer fared better than Heaps and Weinstein. On Dec. 23, Bauer was reinstated by the MLB to pitch in 2023. The 31-year-old Los Angeles Dodgers star was given an unprecedented two-season suspension without pay for violating the league’s domestic violence and sexual assault policy after a San Diego woman accused Bauer of beating and sexually abusing her. Bauer maintained his innocence from the outset. He won the restraining order hearing and avoided the filing of criminal charges. The court of public opinion felt differently and quickly exiled him. It will be interesting to see if Bauer can rehabilitate his image come the 2023 baseball season. The Bauer saga is an important reminder of just how elusive the presumption of innocence is.

The white-collar crime world perhaps had the most riveting developments in 2022. Theranos founder Elizabeth Holmes was convicted of wire fraud and was sentenced to more than 11 years in prison for fraud after deceiving investors about the purported efficacy of her company’s blood-testing technology. Holmes hoped that the jury would view her as an ambitious entrepreneur who got carried away with her dreams rather than a criminal. The jury was unforgiving because her goals came at the expense of peoples’ health and hundreds of millions of dollars of investors’ monies.

Moving into the billions category, that brings us to former FTX founder Sam Bankman-Fried (SBF). On Nov. 11, FTX – the world’s third-largest cryptocurrency exchange once valued at $40 billion – filed for Chapter 11 bankruptcy protection. Shortly thereafter, the United States Department of Justice indicted SBF and his co-conspirators for perpetrating a scheme to defraud customers of FTX by misappropriating billions of dollars. They allege that SBF used the funds for his personal use, to make investments, donated millions of dollars in contributions to federal political candidates and committees, and to repay billions of dollars in loans owed by Alameda Research – a cryptocurrency hedge fund also founded by SBF.

SBF, who was freed on $250 million bail, maintains that he did not have the intent to defraud investors. He blames FTX’s failures on mismanagement, for which he takes responsibility. Two of SBF’s co-workers have already pled guilty and are cooperating with the government against SBF. This is not going to help SBF’s cause.

The FTX debacle is a perfect example of the law catching up to science. Now there are calls from Washington that the cryptocurrency industry be regulated and held to the same standards as any type of publicly traded security. We can expect to see legislation to this effect passed in 2023.

Finally, who could forget the Aug. 8 raid by 30 FBI agents on former President Donald Trump’s Mar-a-Lago residence in Florida? The issues were whether Trump had the right to take classified documents, or had returned all documents per the National Archives Policies. Trump’s response was, “They even broke into my safe! What is the difference between this and Watergate, where operatives broke into the Democrat National Committee? Here, in reverse, Democrats broke into the home of the 45th President of the United States.”

On Dec. 19, the House committee investigating the Jan. 6 attack on the Capitol accused Trump of inciting insurrection, conspiracy to defraud the United States, obstruction of an act of Congress and one other federal crime as it referred him to the Justice Department for potential prosecution. This was the first time in American history that Congress referred a former president for criminal prosecution. It is premised on the theory that he tried to overturn the 2020 election by inciting a violent mob to attack the Capitol. Trump maintains that he did not direct the mob to be violent and once they did, he ordered them to cease their activity and go home.

If Trump is charged and convicted of insurrection, he could be barred from running for President. Section 3 of the 14th Amendment disqualifies any person from holding federal office “who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Constitutional arguments can be made in support of either argument. At any rate, it would certainly bring us into uncharted territory.

As we look towards 2023, we can certainly say that the criminal justice system is alive and well. But we must always proceed with caution. The integrity of the system rests on sound and objective prosecutorial and judicial discretion. Decisions should be made with patience and thoughtfulness. At a time when conspiracy theories are running rampant, the justice system needs to be all the more deliberate and grounded in principle. I have no doubt it will.