Brett Favre’s welfare fraud lawsuit; Murder suspect to act as his own attorney — TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Terri Austin joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss possible criminal charges facing Alec Baldwin and others in the “Rust” shooting, the Mississippi welfare fraud scandal, the suspect in a Christmas parade massacre representing himself, and the lawsuit alleging Donald Trump made false claims about his financial status for economic benefit.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[0:00:11]
Hello and welcome to True Crime Daily's The Sidebar, taking you inside the courtrooms of high profile and notorious cases from across the country. 'm your host, Joshua Ritter. I'm a criminal defense lawyer based here in Los Angeles and previously an L.A County prosecutor for nearly a decade. We are recording this on Friday, September 30th, 2022. It's amazing that we're already at the end of September.
In this week's episode, we’ll cover possible criminal charges for Alec Baldwin and other members of the Rust Production as Santa Fe prosecutors seek funds to continue their investigation.
We'll also talk about the lawsuit facing former superstar quarterback Brett Favre and possible criminal liability in the Mississippi welfare fraud scandal. As well as the suspect in the Waukesha Parade massacre choosing to act as his own attorney. And finally, fraud allegations facing once again Donald Trump that could have wide reaching implications for his entire organization.
Today, we are thrilled to be joined by Terry Austin, a former trial attorney, adjunct professor at USC and a legal analyst who appears on a number of networks including Law and Crime, Fox News, and many others. Terri, welcome.
Terri Austin:
[0:01:22]
Thank you so much. It's great to be here.
Joshua Ritter:
[0:01:24]
Absolutely. Before we jump in, a lot to talk about lot, a lot of things that we're curious to hear your opinion on. Tell us a little bit about your background and what you're up to currently.
Terri Austin:
[0:01:35]
Well, I'm from Birmingham, Alabama. I came to school in New York in '79 and I stayed here. And I've been practicing law for 30 plus years and now I'm doing legal analyst work on Law and Crime as you say, and ABC, and I love it.
Joshua Ritter:
[0:01:52]
Good, fantastic. Well, because of your incredible background and your expertise, now we’re really excited to hear your thoughts on these cases because they are interesting in their each and their own respect. So, we'll jump right in.
We're moving to Santa Fe, New Mexico. The Santa Fe’s DA's office has asked for emergency funding to continue to investigate the October 2021 onset death of cinematographer, Helena Hutchens. This comes in addition to a litany of civil suits surrounding Alec Baldwin and the Rust Production. The request for funding comes in anticipation of potentially charging, get this, up to four people, according to the request, with criminal charges that may include some variation of the state’s homicide statute.
The DA’s office specified that Baldwin himself could be one of the defendants named. In August of 2021, the FBI released a forensic report of the weapon that was discharged onset, concluding that the gun could not have been fired without the trigger being pulled. A finding directly contradicts the statements that he made, both publicly and to authorities saying that he never pulled the trigger. The Santa Fe Sheriff's Office is continuing their final report on the investigation, but they have expected to hand over the report sometime in October. So, any day now.
Terri, I know you have followed this closely. Does the possibility of actual criminal charges in this case surprise you?
Terri Austin:
[0:03:16]
Well, it does a little bit. I think, when you talk about criminal, you talk about intent. And clearly, no one intended here to have anybody die that day. And it certainly seems as though everybody is remorseful. I do think Alec Baldwin, when he did that interview, was focusing on himself, was trying to give excuses. But at the same time, there's no evidence in my mind that anyone was trying to purposely kill someone.
But, you know, criminal law also has when you're not intentionally trying to kill someone. So, one of the things the DA said is that she's looking at the statutes for all types of homicide, which isn't murder necessarily. When you think of murder, obviously, that's intent. Homicide is just when you have the death of a person.
And so, she's looking to see whether or not there's manslaughter charges, whether or not she can have some sort of negligent homicide. And she's looking at all of the gun laws. So, whether or not people handled those guns properly, purchased those guns, purchased and handled the ammunition.
So, she wants to make sure she's covering her basis and I think it's the right thing to do. Someone died and someone got injured. And so, she has to pursue it. And it doesn't matter that Alec Baldwin is a famous personality. She needs to make sure she gets down to it. And he was the one who pulled the trigger so, of course, he is probably going to be included.
And she actually said yes, even including the most famous person on the set, which obviously was Alec Baldwin.
Joshua Ritter:
[0:04:49]
Yeah, absolutely. That was a wonderful analysis you did of all of this and it reflects my thoughts that I've always had on it is that at first blush, when you look at this, it looks like an accident, right? I mean, there's no evidence that, you know, anybody had any kind of animosity towards her then he was trying to set up even Baldwin to kill her, you know, make it appear as though it's accident.
So, you can put aside all of those crimes that include kind of intentional homicide, you know. And what we're talking about is mens rea, right? We're talking about that mental state. Putting it all of those aside, you're right, that doesn't mean when you say homicide, it includes things like involuntary manslaughter, which might be including acts of kind of just gross negligence or reckless disregard for somebody’s safety. And we don't know all the evidence here, but there could be something along those lines.
Kind of the classic example that's used at least in law school is the idea, and I'm sure you remember reading about this, the idea of throwing a rock off of a freeway overpass and it hits a car and somebody dies, that person throwing the rock could say, “Well, I never intended to killing anyone”, but they have such reckless disregard for the safety of others that they might be held accountable for that death, that homicide, in the form of an involuntary manslaughter.
And who knows, if there's evidence of something like that here or even if they feel that the evidence that they have and we know about is enough for that. But what's amazing about all of this, and I'm going to torture a couple of a movie metaphors here, but this is an uncommon situation that we get a great sneak preview of the coming attractions of this criminal case and the idea that they had to ask for these funds.
And originally, I had the thought that the county required more resources for prosecution of this magnitude. What are your thoughts on why they're asking for the money and why we're hearing this kind of – you know, we wouldn't get this out of a county like Los Angeles. They would just announce that they have charges or not. Why do you think that we had this?
Terri Austin:
[0:06:52]
Yeah, exactly. You know, it's very interesting. This is a small county and they don't have the funds. She literally wrote and asked for more money from the state because she's saying that if she in fact were to pursue, you know, charges against these four individuals, she would run out of money. She could not pay her staff.
And so she requested this money and they had given her some of those funds, not all of them yet, but she said she needed it as an emergency to just look over the materials. She's still waiting on materials from the Sheriff's Office. But theoretically, she is hoping that that report comes soon. And once that report comes, she's going to need the money to review that and have paralegals and other people who can investigate further. So, apparently her small office isn't able to handle it and that is why she needs the money.
And I get the impression that the state is going to give her the funding in full that she's asking for. I think she's asked for some $600,000, which doesn't sound like a lot. And maybe she'll just continue to make those requests as she goes along. But she wants to make sure that she properly funds this case. It's a big case, obviously. It's getting a lot of attention and I think she wants to ensure that she puts the right resources behind the case.
The last thing we want to do is not fund it properly, not get all the right resources and then, you know, possibly not be able to pursue the charges. She wants to ensure to the town and to the city into the, you know, county that she's doing the right thing here. And so, getting the funding I think is going to help.
Joshua Ritter:
[0:08:35]
And I think herself and the county and the state certainly don't want to make it appear as though they got outgunned because they just didn't have the resources. Because we can imagine someone like Alec Baldwin or the other producers or anyone on this set, they're going to hire the biggest and best defense attorneys that they can who are going to give as much trouble to that county in this prosecution as they possibly can.
So yeah, I agree with you. There's a lot of handwringing going on in this smaller county. And I have a question for you on that. Do you think – how do you think having this type of a, you know, prosecuting perhaps a big movie star, you know, the whole country washing, watching, I imagine the cameras of court TV and everybody else will be coming into this small county to record this whole thing, how do you think that's going to affect?
You know, we've seen it in larger cities, but how do you think it's going to affect a small county like this, especially when we're talking about the jury pool of people that they'll be choosing from?
Terri Austin:
[0:09:35]
That's an excellent question. They may even try to, the defense might. And you're right, they're going to get the most expensive lawyers, the most well-versed lawyers, but they could try to move it out of that venue because it's such a small venue and everyone will have known about the case. And it could very well be that, that jury pool might be a bit tainted and be looking against these big movie stars and actors and directors who come in and don't make sure that that set is safe for everyone.
And a lot of the people on that set were people from the town. And, interestingly enough, you know, we're talking about possible criminal charges. But there are at least three civil lawsuits already in progress, and it was brought by people who you wouldn't normally think would be bringing these suits.
Obviously, the Hutchins family has brought a civil suit, but they were the last ones to file. Initially, the first suit was brought by someone who is the chief of lighting. And you know, there was another suit that was also brought by one of the other, I think she was a script supervisor, and they're claiming negligence. And so, there are these civil actions going on by people who were on the set and who were involved to a certain extent, and they're claiming that they had this emotional distress.
So, I do think a lot of people in the area, on the set, living in the town, know about the case. And it might well be hard to actually get a jury who is going to not be biased and not have that local feeling. And these lawyers are going to come in there, they are going to try to get the cases dismissed obviously and you know we'll see what happens. But ultimately, I do think that the county is going to have to combat that the best way they can and get the best people, the best support that they can to deal with the case.
Joshua Ritter:
[0:11:31]
Yeah. Yeah, you allude to that that's not just – that the problems don't end just with this criminal case. There's also some very large civil cases. Miss Hutchins is being represented by a lawyer here in Los Angeles, Brian Panish, probably one of the best plaintiff’s attorneys in the country. They've already put a tremendous amount of pressure on this case.
How do you think possible chart criminal charges – now they haven't said they're going to file anything, they're just anticipating it. But I think we can all read the tea leaves here that if they're asking for this type of money, they've hired a special prosecutor, somebody’s getting charged criminally.
It may not be even homicide. It may just be weapons charges, but somebody’s getting charged criminally. And whoever is getting charged they believe is going to be putting up quite a fight and that's why they're asking for this type of money.
So, my kind of, you know, fortune reading here says it could be a celebrity name and it could be serious charges. But if those charges are brought, how do you think that affects the civil case and the posture of the civil case?
Terri Austin:
[0:12:28]
Well, you know, oftentimes you put the civil cases on hold while the criminal case is going on because you don't want in any way to have those depositions or any testimony in the civil case affect you in the criminal case and have it used against you. So, I'm thinking that perhaps we’ll see that happen here, that those suits that have been brought by the folks who were on the saddened by the Hutchins family might be on hold for a while until this is all ironed out.
And you know it could be some time before we even get charges. So, I think this process is going to take years. I really don't think we're going to see a resolution of this anytime soon. And if I were handling those civil actions, I would definitely want them to be put on hold.
If I were someone like Alec Baldwin at this point, you know he will want that to be on hold because if he sits down for a deposition or if he testifies, all that he says, because he's under oath there, can be used against him, and it would be used. So, he'd have to be very careful.
And most civil courts will stay a case until the criminal action has been completed. So, this is going to be a while.
Joshua Ritter:
[0:13:42]
Yeah, I agree with you. And it has taken a while. I mean for criminal charges and this type of a case where I know it's complex to some extent, but to another extent, it's pretty straightforward. Somebody was shot one time.
There's several witnesses, you know. They're definitely being deliberate. I think there's a lot of handwringing going on. I agree with you. Nothing seems to be moving very quickly in this case, but we will continue to keep an eye on it because it's just fascinating.
So right now, we'll move to Mississippi. The State of Mississippi has filed a lawsuit against Hall of Fame quarterback Brett Favre and others seeking recovery of $20 million in misspent welfare money.
Mississippi is one of the poorest states in the country, with approximately 20 percent of its population living below the poverty line. The director of Mississippi’s Department of Human Resources pled guilty to two federal counts and 18 state counts of embezzling welfare funds, allegedly misusing the money on sham projects where no services were performed.
The plea has increased speculation that others may be implicated in the scandal. Favre reportedly received over 1,000,000 in welfare funds for speeches and appearances that were allegedly never made. Recently released text messages also revealed that Favre may have pressured state officials, resulting in 5,000,000 in welfare funds being used to build a volleyball facility at the University of Southern Mississippi, Favre's alma mater and where his daughter also played volleyball.
Alright, Terri, jump right in. Do you think Brett Favre could be in trouble here from a both civil and criminal respect?
Terri Austin:
[0:15:21]
Absolutely, no doubt about it. I think he is keeping a very low profile right now because he is getting his ducks in order. He's getting his attorneys behind him. He does, I think, have the potential of facing both criminal and civil charges here.
Look, we've already had two people who have pled guilty. Nancy New pled guilty, and she was the head of the nonprofit. And John Davis pled guilty and he was the head of the welfare agency. Both of them have said that they will be cooperating.
And so, in that case, they have all the information, they have all of the contacts by e-mail, texts. They are going to be disclosing that. And in fact, as you mentioned, some of those texts have already been revealed.
One of the texts that, you know, Nancy, Santa Claus came. What does that mean? Now, I think that Brett Favre was probably very careful in what he said and he didn't come right out and say anything that would implicate him directly, but people can read into that.
And we have only started to see what's underneath all of this information. We may see that there is something more direct that points to him. So, he could be sued civilly, obviously, to get the money back, but he could also be sued criminally and serve some time.
This was fraud. And I definitely think that they'll be coming after him and he needs to be careful. There's just too many connections. And it's not just a conflict of interest. This is money. If it turns out these allegations are correct, and according to the state auditor, this is money that should have gone to the people of the State of Mississippi. And it was $70 million. That is a lot of money.
And so, I don't think that they can sit back and not pursue him. And, you know, as I said, I think he's keeping a low profile now because he's really trying to make sure he has his defenses together.
Joshua Ritter:
[0:17:25]
Well, it's the text messages. It's always the text messages, they get you. It kills me. We don't – this isn't 20 years ago where we were unsure what was saved on our phones and not everything saved. And you put this stuff in writing, and I see it time and time again. I'll get clients and they feel like they're in the clear and then, all of a sudden, you know, the prosecution hands over a cellphone dump, and it includes a bunch of text messages that just look awful.
And I fear for Mr Favre. That's what's happening here. To compound his problems, he tweeted in May 2020 that he had, “never received monies for obligations I didn't meet” and “was unaware that the money being dispersed is paid for out of funds not intended for that purpose.”
Okay. Well, evidence suggests otherwise. Do you think that that's going to get him into trouble as well, this kind of comments that he's making publicly that are going to be perhaps contradicted by the evidence as it unfolds?
And to kind of throw this back to the case we just talked about, we saw that multiple times with Alec Baldwin. He made all sorts of statements. One of them in particular is coming into question. I didn't pull the trigger and now we find out there's evidence that gun could have then fired otherwise. What are your thoughts on these celebrities commenting on ongoing investigations before the case has been heard?
Terri Austin:
[0:18:41]
You know, it always gets you in trouble. And as an attorney, you have to make sure you tell your client do not speak in public about an ongoing case because it will come back to bite you. And the fact that he is making a statement that he had no idea where the funds were coming from and you have evidence, hard evidence, you have texts that say look, I don't want people know where this is coming from. It sort of means that there's a problem there.
And if it does show that he knew exactly where the money is coming from, that he knew it was an illegal – and there is a text that says from the governor frankly that this could be illegal. If that is the case, then that's a problem and you know you're going to get a jury.
They're supposed to listen to only the evidence that is in court. And they're supposed to be fair. But oftentimes you get juries who know a lot about the case, and they have seen a lot about the case. And in the back of their mind, they're going to say but didn't you say you didn't know anything about this? And you know, I definitely think that is going to hurt him.
People can't forget once they've heard it and they can say they're going to be fair, but you really have to be careful and make sure you don't make those kind of comments outside of, you know, the case that you're dealing with.
Joshua Ritter:
[0:20:07]
How often have we seen it? It's the cover up that gets you not more than the crime itself.
Terri Austin:
[0:20:13]
That's right.
Joshua Ritter:
[0:20:14]
And I agree with you. I think that, you know, it may be hard connecting the dots of, you know, what he knew and when he knew it, as far as where this money was coming from and what it was going towards. But you start sending text messages saying, you know, is this all on the level and we're not going to get found out, are we? Tthis is – I just don't want this to haunt me.
That's the kind of stuff that just really buries you, especially in front of jurors. They just can't stand that kind of stuff. However, Favre is a very beloved figure, especially in the State of Mississippi. What effect, if any, do you think that will have on this case?
Terri Austin:
[0:20:50]
Well, you know, he's also a Hall of Famer. So, I think that's something that ultimately, if he is charged with either civil or criminal, and it's something I think that people don't have to think about whether or not he's, you know, in the Hall of Fame and his legacy is going to be very different, people really do hold him in high regard because he is such a famous player. He's got so many, you know, victories behind him.
And it is hard to see someone who is so high fall so far. But what I think will be interesting here is to make sure, you know, we've seen other really professional players really be brought down. And you know I'm not in any way shape or form saying you know this is a racial thing, but we do see a lot of black players who have done other things and be brought down as well. They should.
And so, you know, there are some people who are saying that they don't think that this is going to be the same here, that because he is Brett Favre, because he is so famous, because he is such a legendary and popular person that they're not going to pursue him.
But I don't think that's going to be the case. I think he's going to be pursued and I think part of it is because this amount of money was so massive. And he's taking it from the poor people of the State of Mississippi.
And, you know, Mississippi is the poorest state in the country. And, you know, 20 percent of the population is under the poverty line. And so, I think people are going to look at this seriously and think to themselves, how could he possibly do this? This is not, you know, stealing small amounts of money. This is millions of dollars and it's affecting millions of people.
And so, I think they're going to go after him. And I don't think they care what is racist. I think they're going to go after him.
Joshua Ritter:
[0:22:39]
Yeah, I think you may have nailed it. You know, in spite of the things you may have done and the way you may feel about him as a football player, part here that is the clincher is the fact that they're stealing this money from a welfare fund for a very poor state, for people who really need it. I mean it's one thing if this is – I don't know.
I I'm trying to think of an example, but extortion of, you know, Facebook that's just, you know, loaded with money or something, but you're talking about basically stealing from the poor. The optics alone, I agree with you, it's hard to ignore despite his celebrity status. So, we'll continue to watch this one as well.
Now, let's turn to our Waukesha, Wisconsin. In a surprising turn of events, Darrell Brooks, the man charged with murdering six people when he plowed his SUV into a Christmas Day parade in Waukesha, Wisconsin, will be allowed to represent himself in his upcoming trial. The move comes after a contentious in court arguments between Brooks and Judge Jennifer Dorow. We have some of that footage from this hearing. Let's take a look at that now.
Judge Jennifer Dorow:
[0:23:45]
Three of the four doctors all diagnosed Mr. Brooks with a personality disorder. I'm going to quote at length from one of the reports because I think it's important as I make a determination today that Mr. Brooks is competent to represent himself and waived his right to an attorney.
Darrel Brooks:
[0:24:08]
[Inaudible]
Judge Jennifer Dorow:
[0:24:09]
Mr. Brooks, don't interrupt me. It also helps explain some of the interruptions and --
Darrel Brooks:
[0:24:15]
May I ask a question in the trial?
Judge Jennifer Dorow:
[0:24:17]
Not right now. You can ask when I'm done. It also, I believe, help fix – Mr. Brooks, let me get through this. It’s really important that I make a record and honor your request to –
Darrel Brooks:
[0:24:28]
I understand that. I don't understand –
Judge Jennifer Dorow:
[0:24:32]
To represent yourself.
Darrel Brooks:
[0:24:34]
I don't understand why –
Judge Jennifer Dorow:
[0:24:36]
Mr. Brooks, I'm going to explain the relevance, so just stop talking and listen to me.
Darrel Brooks:
[0:24:41]
I don't – I don't understand – I don't understand why Something pertaining to a plea that is not standing anymore has relevancy to the decision that's being made right now –
Judge Jennifer Dorow:
[0:24:52]
Stop talking and listen, because you're going to get the answer, okay?
Darrel Brooks:
[0:24:55]
Okay. I hope so.
Judge Jennifer Dorow:
[0:24:57]
You’ve got to listen.
Joshua Ritter:
[0:24:58]
A pretty incredible stuff. In the end, Brooks was deemed competent to act as his own attorney, and his public defenders were discharged. Brooks faces 77 total charges, including six counts of first-degree murder. It will be an incredibly complex case that I imagine will have dozens of witnesses.
So, Terri, first walk us through what is happening here? Does a person have an absolute right to represent themselves?
Terri Austin:
[0:25:24]
Yes, they do. They have an absolute right to represent themselves, but the caveat is whether or not they're competent to do so. So, and you heard the judge over and over. I thought she did an excellent job. Judge Dorow really had a lot of patience. And it was, you know, two days of her listening to Brooks and asking him questions, but she was trying to determine whether or not he was competent to represent himself.
Did he understand the charges? Did he understand the penalties? And she asked for each and every charge and there are over 77 charges. She asked him, did he understand all of that? And she asked the representative for him that the defense attorney who was assigned to him before she made a ruling, did you explain all of this?
And so, she could deny it, but she didn't. She granted him the right, but you are granted the right if you can demonstrate that you do understand what is going on. And frankly, I was surprised that she allowed him to do it. I think after two days –
Joshua Ritter:
[0:26:31]
Really?
Terri Austin:
[0:26:32]
Yes, I was. Because look, he's not a dumb person. He's got some intelligence. He knows about the criminal justice system. He's been involved in the criminal justice systems before. He's got charges that were pinning him against him. And so, I think he's accustomed to having to deal with charges against him.
But I would not have granted it, and this is why. You know, he is claiming that he's a sovereign citizen, meaning that they believe that the government doesn't have control over them. They don't believe in court processes unless they consent.
So, for instance, when she was going through the charges and asking, do you understand he basically kept changing – he literally physically changed the documents to say I have been informed, meaning that he is not really agreeing or understanding or consenting. He's been informed and that was his way of saying you can't make me say I understand. I'm just telling you I'm informed.
And he was asking the judge questions that she was trying to just get him to listen and answer questions. For those reasons, if I had been Judge Dorow, I would have said you need counsel, because the case is going to take forever at this rate. And it's including whether or not he is going to abide by the process.
And he has a 6th amendment right to represent himself, but I don't think I would have given him that under these circumstances. I think I would have leaned towards not granting it. She basically said at the end of the day, I think you understand, I think you're confident, I think you can represent yourself, but she had to say we're going to start on Monday. And he essentially said, “Well, what if I object?” This is the problem.
Joshua Ritter:
[0:28:26]
Yeah. Yeah.
Terri Austin:
[0:28:28]
What if he does and what if he doesn't come on Monday? So we'll see what happens.
Joshua Ritter:
[0:28:32]
Yeah. The judge was in a really tough spot here and I agree with you. I mean, because what she's trying to do is balance the appellate issues, right? And so, she knows if she denies him this and there's – and he's laid out a record that he's competent to represent himself.
And like you said, the standard is competency, right? He doesn't have to say I'm a lawyer and I've got the experience that my public defenders do in understanding how to defend these cases. But that I am competent, I understand what I'm being charged with, I understand the elements, I understand, you know, the possible defenses on a very, very superficial level.
Because if she – if he is able to establish that, and she denies him, she's denying him, as you pointed out, a constitutional right. That's a huge thing. That's a huge appellate issue. But on the other side of that, think of all the appellate issues he's going to create by representing himself, not to mention that this is not a simple case to begin with. We're talking about 77 different counts, six counts of murder, dozens of witnesses going to be called over several weeks, and he's going to be causing trouble and problems every step of the way.
Who knows how many times he's going to speak out in court, how many times he's going to ask objectionable questions. Think about the fact that he's going to be given the opportunity to cross examine the family members of some of these victims and what kind of a horrible situation that creates.
So, it's going to create a nightmare and probably a nightmare of appellate issues as well. And the judge, you know, was in the tough spot to kind of balance all of that. But I kind of agree with you that I think she should have just aired with caution and said sorry sir, take it up on appeal if you think I'm wrong, but you're going into this with lawyers because I'm not dealing with this circus, especially in a case of this magnitude.
How do you think – I've handled a proper client before or defend him before when I was a prosecutor and it does create a lot of problems because they're – in spite of saying how much they understand, they constantly then the re fingers, well, I didn't get that, I don't understand that. Why am I not being allowed to ask the questions I'm being – that I want to ask? They don't understand the evidentiary rules part of me. I had a tough time with that word.
But how do you think this changes the prosecutions way of handling this case now that they know they're going to be dealing with a proper defendant?
Terri Austin:
[0:30:57]
I think they're going to have a hard time. I think the prosecution is like the judge going to do the best they can with what's going on. It's – you have to almost, even though, the judge told Brooks, look, you're not going to get any extra aid, you're not going to get – by state, you know law, he's not getting any attorney to help him. They just don't have the funding for that and so he's buying stuff.
And the inclination for both the judge, and I even think the prosecutor, is to want to help him because he's not going to know what to do. And so, I think everyone is going to bend over backwards to assist him and to give him the benefit of the doubt. And even the prosecutor I think is going to try very hard because no one, the last thing anyone wants, to your point is to, you know, get reversed on appeal or to get a mistrial.
And so, the prosecutor is trying very hard and will be trying very hard when that case starts, not in a mistrial. And so, I think both the judge and the prosecutor are going to tread very carefully, give him every benefit, give him, you know, the brakes he needs, maybe even assistance. I think that the judge is going to end up doing that, even though she has said look, you're on your own here. I think she's going to really try to help him through the process and explain things. And that's going to take longer too.
I give her credit because she was trying to make sure that he has his constitutional rights upheld, but it's going to make for a lot of extra work for everybody in that courtroom, even the court reporter I think is going to have a hard time keeping up with him because he just, you know, says what he wants to say when he wants to say it.
And you know, one thing I was thinking of though, I do think she could have said because he kept saying he is informed, that she could have gotten off with saying he doesn't understand so he's not competent. But, you know, she air on the side of giving him his constitutional right and we’ll have an interesting trial to say the least.
Joshua Ritter:
[0:33:19]
Yeah, we will.
Terri Austin:
[0:33:19]
Yeah.
Joshua Ritter:
[0:33:19]
Well, I know something that they do here in California and maybe you kind of alluded to this and maybe, you know, so stop me if I'm wrong. But they usually have standby counsel in cases like this where there's an attorney who is not his attorney, can't provide him with assistance, but is in court taking notes, listening to all the issues, understands the facts and evidence so that if for some reason the judge does have to pull the cord and say sorry, you've now demonstrated that you are not competent to handle this case and you're causing way too many problems. And putting in standby counsel to take over so that they don't have a mistrial, don't have to throw out however many weeks of testimony that they're at, at that point, do you – were you aware if they're going to have that in this case or not?
Terri Austin:
[0:34:04]
She specifically said, Mr. Books, I want you to understand we're here in Wisconsin. We have a particular law here that says if you choose to represent yourself, you do not have the availability for standby counsel and that is because the office of, you know, the Public Defender’s Office does not have the resources to provide you with a standby counsel. And if you choose to have an attorney represent you, we can give you that. But we don't have the resources to be assisting all of these people who are asking us.
They specifically implemented that process in the state because apparently, they were having issues with trying to provide these defendants with standby counsel. So, she made it very clear that's not going to happen here. And he, he basically, you know, the reason this took two days – it could have taken an hour, but it took two days, he kept asking I don't understand why I can't have counsel, why can't I have standby counsel.
And she pulled out – she literally asked her assistant to pull out the statute, and she read it to him. And it said, you know, we can no longer provide standby counsel because we don't have the resources. So no, he's not going to get standby counsel here. So, he is on his own.
Joshua Ritter:
[0:35:31]
This – I could just see this turning into a disaster because he – I mean you imagine to kind of – talk about yeah, I understand that the state is trying to save themselves the resources of not – of having an attorney sitting court. Imagine the amount of wasted resources that you put on three weeks of an eight-week trial and have to throw the whole thing out and start all over again because he just can't represent himself or can't contain himself in court enough to put on a trial. This is going to be a disaster.
Terri Austin:
[0:36:03]
Exactly. My thoughts exactly.
Joshua Ritter:
[0:36:05]
Well, finally today, we turn to New York. The New York Attorney General, Letitia James, has filed a lawsuit against Donald Trump, the Trump Organization, and others alleging financial fraud that allowed the company to obtain economic benefit.
The lawsuit is based upon a little known but powerful law to take on what it sees as the most egregious corporate bad actors, including oil producers, big banks, tobacco companies, and even the notorious pharma Bro Martin Shkreli.
The law alleges Trump, along with his children, inflated his net worth by billions with a B and received economic benefits using fraudulent statements regarding his financial condition. The conduct violates New York’s executive law 63, giving the office of the Attorney General special and broad powers to pursue fraud.
The lawsuit seeks to remove Trump and his children from their positions in the organization. Pretty incredible. Bar them from future leadership roles in any New York corporation and also seeks 250 million in restitution for funds they allegedly obtained illegally.
Okay. So, Terri, right off the bat, we should explain this is a civil lawsuit, not a criminal indictment. How will that affect their burden of proof in this case?
Terri Austin:
[0:37:18]
Well, with the civil lawsuit, the burden of proof is less. Now, she could have brought a criminal, but I think she looked at all of what she has in terms of information and she decided, look, let me go under the statute. As you say, she has broad powers here and she will be able to have tons of discovery and it's not beyond a reasonable doubt. It's just the preponderance of the evidence here and there is a ton of evidence. They have thousands of pages of documents and she – the complaint itself was 280 pages long so you know that there's a lot of information there. And she has multiple allegations against him.
I mean the complaint talks about, you know, that he falsely inflated his net worth. He overvalued his assets. He made false reports to get lower taxes. It just goes on and on and on. And it does, to me, seem as though she really carefully decided how to bring this complaint so she would be successful and the lower burden of proof, the fact that she can have deposition after deposition. And unlike in a criminal case, if he sits for deposition and he reads the book which he has already done multiple times, that can be used and implied against him.
So, I think she was wise in bringing a civil suit, bringing in under this law, making sure she can get these documents. And I think it has a very good chance of winning now. Having said that, Trump's main tactic is delay, delay, delay.
And so, we are talking years. This is not something that is going to happen if anybody is thinking, oh gosh, this might be a Christmas present for me if they are against Trump, no. It may be a Christmas present, but not this year, not next year. Just I think it will take years because he will make multiple motions and he will try to delay and stall and appeal. And so, I do think that it would be a long time coming, but it's going to tie him up.
He's going to have to find good lawyers. Lawyers who understand the nuances of this – these are all financial transactions. And so, he's going to have to get a good team behind him to really defend himself. But kudos, smart action. I think it was the right way to go here.
Joshua Ritter:
[0:39:45]
It's interesting, your take on it because I was a little confused because you're right, they do have a huge – it's not an indictment, but a huge complaint that they filed here. They do appear to have done a tremendous amount of investigation already.
If they have all of this evidence, then why are we still in the civil world? In other words, if the evidence is there, do they feel that the evidence is just not strong enough to meet that, that increased burden of the criminal case, or do they feel that perhaps the actions are not egregious enough?
Because obviously, you know, the difference between civil fraud and criminal fraud is there's additional kind of things that need to be proven. Do they think that maybe they just couldn't prove that kind of criminal, additional criminal mindset or involvement to bring it as a criminal case? Or do you think this is just a tool for things to maybe come in the future?
Terri Austin:
[0:40:46]
I think it’s – I think you hit it on the head. I think it's just an indication of what's going to come in the future. And remember, she referred to the U.S. Attorney’s office for the Southern District of New York and also to the IRS, both for criminal investigations. And I'm thinking that she's thinking to herself, perhaps from a legal perspective, they will be able to pursue him more effectively than she could from a state perspective.
I definitely think that she sat down and thought about this long and hard. And it doesn't mean she won't later pursue criminal action, but I think for now she wants to give that and hand it over to the U.S. Attorney and to the IRS. Now, she also said that she's been cooperating with the Manhattan DA's office, Alvin Bragg.
Now, for whatever reason, and you know, I don't think we'll ever really know why he decided not to pursue the case as strenuously as, you know, his predecessor Cyrus Vance, was ready before his retirement.
Joshua Ritter:
[0:41:47]
With a lot of fallback from people inside of his office when he made that decision too.
Terri Austin:
[0:41:51]
That is correct. A couple of his, you know, attorneys resigned. Mark Pomerantz was one of them. And so, you know, I think that she's cooperating with the Manhattan DA's office. She got a question during her press conference, you know, what's happening there? And she was very, I think, discrete and, you know, she didn't say much.
But she said, well, we are cooperating with the Manhattan DA's office. But I think we're not going to see Alvin Bragg bring any sort of charges at this point because if not now, when? They had it all. They were ready to go. And I think it's interesting that they're not pursuing it, but I do think she might later down the line.
Joshua Ritter:
[0:42:41]
Interesting. You know, you can't talk about – this isn't a political show but you can't really talk about Trump without talking a little bit about kind of the political background of all of this. James has not been a fan of Trump from the very beginning. She made that incredibly clear.
Does this, could this – you know, she made a press conference about all of it. Could this appear to be kind of her pushing her own political ambitions? Could it appear to be vindictive on her part? Does it play into Trump’s role as a martyr? There's a whole bunch of questions for you. What are your thoughts on all of this kind of political background?
Terri Austin:
[0:43:20]
Yes, to all the above, no doubt about it. Yes all the above. And she sort of anticipated that during her press conference. She said, look, you're going to say, I'm just going after you, this is a witch hunt but that there's nothing there, that I've been planning this all along and that I campaigned on it.
And all of that is true. All of that is true. But that doesn't, I think, you know, change the situation. And you could say that you know she has – you know, she's like a dog with a bone and she's not going to let it go. That's what we say in the South, you know, dog with bone and never comes out.
But she – even one thing if she didn't have anything there and he was innocent. Look, everyone is innocent until they're proven guilty, obviously. And this is not criminal, this is civil. But my point is, I definitely think that it's a legitimate pursuit. I think she has a very good chance of prevailing. I think there's a ton of evidence. And I think whether this was just something she wanted to do or not, it doesn’t matter.
If he absolutely committed these acts, I think he should, like everyone else, no one is above the law. And she made it clear, this is not a victimless crime. If he is as wealthy as he claims to be, then he should be paying taxes like everyone else.
And so, I definitely think she has the right to go after him. It's just flagrant and you can't ignore that when something like that is going on and she pursues and she has stated, she said in her press conference, look, I go after everyone who is doing what he is doing. It's not just him.
And so, he's not above the law, and despite what he may think and what has been happening in the past. For whatever reason, you know, Teflon Don, this is the town, Don. Nothing has stuck so far. Everything seems to just go away.
And I think she's saying to the people in the State of New York and to the United States and to the world, I'm not going away.
Joshua Ritter:
[0:45:34]
Yeah. Well, I agree with you in that however we get to the bottom of this, it's not going to be quick. It's probably going to drag out for a long period of time. And one little wrinkle I'll add into all of this is it's the Trump organization but if you want to take down actual Donald Trump, you're going to have to point – it's going to have to trace back and connect all the dots to actually him and that might be where most of this fight takes place is how much did he know and when did he know it, right? It always comes down to that question.
Terri Austin:
[0:46:06]
Actually, he is very good. We talked earlier about texts and how you have to be careful and you tell your client you know what you put in writing. He's very good at not putting anything in writing and not leaving a paper trail.
Joshua Ritter:
[0:46:21]
We shall see.
Terri Austin:
[0:46:22]
So, I think that is part of the reason he has been able to evade, sort of, you know, the courts.
Joshua Ritter:
[0:46:28]
Terri, thank you so much for coming on this week. Where can people find out more about you?
Terri Austin:
[0:46:33]
I'm @TerriDAustin and that's my Twitter tagline so you can find me there or Law and Crime, I have a daily Show there. And I'm often on ABC as well and yeah.
Joshua Ritter:
[0:46:47]
Fantastic. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter, @JoshuaRitterESQ. And please check out my new website, JoshuaRitter.com. I'm always trying to update it with new information and it also tells you how to contact me.
And you can find our Sidebar episodes wherever you get your podcasts. And we want to hear from you, if you've got questions or comments you'd like us to address, tweet us your questions with the #TCDSidebar. And thank you for joining us at the True Crime Daily Sidebar.
