COMMENTARY | COLUMNISTS | DAN LAWTON

Why judicial review didn't mean justice in 'Strippergate' case

Editor's note: This is the second in a two-part series concerning the San Diego "Strippergate" case.

Prosecutors are quick to say Ralph Inzunza Jr.'s case got a lot of judicial review, including at the 9th Circuit. And they are right. But justice did not follow from that judicial review. This is because of the reality of appellate review, whose rules make it hard for an innocent defendant to get relief from a false conviction.

The "harmless error" doctrine is one such rule. It bars relief even for constitutional violations if the court can find evidence of guilt that supposedly makes the error "harmless." The 9th Circuit invoked this rule in Inzunza's case, holding that prosecutor Michael Wheat's blatant reference to Inzunza's silence at trial, though a Fifth Amendment violation, was "harmless."

An appellate court can't possibly know if such things are "harmless" without being in the jury room and viewing the impact of the violation for itself. This is impossible, of course. And so the court's ivory-tower guess as to the true impact of the violation substitutes for a retrial, or an outright reversal. The upshot is innocent men like Inzunza wind up in prison despite seemingly exhaustive appellate review. They receive the appearance of due process, a sort of assembly-line justice, but not real justice.

Systemic hypocrisy and the damage done

Juxtaposed with our current system of campaign finance, the Inzunza case leaves the public with contempt for that system. Individual donors to federal candidates must abide by a $2,500 cap per election. But, if you're Sheldon Adelson, who cares? All you need to do is set up a super PAC, which can take unlimited contributions, then use the cash to support the candidates you want to win and do your bidding. So-called 501(c)(4) groups need not even disclose their contributors. And so those contributors stay anonymous, with no public scrutiny at all. This is even as they invisibly dump millions of dollars in cash into the candidates of their choice.

This system blinds any prosecutor (and voters) from learning of any quid pro quo between big donors and the elected recipients of their cash. Judge Richard Posner describes it as "legal corruption" — a regime that allows "wealthy people [to] essentially bribe legislators." Whatever your political affiliation, no fair-minded person can view such a system except with disgust.

Disgust is what any fair-minded person should feel for behavior of prosecutors in cases like "Strippergate."

As a college student, I had an idealized vision of all federal prosecutors as professional, honest champions of justice. I know no private-bar lawyer who has that vision anymore. This is because of the government's lying, cheating and win-at-all-costs tactics that have poisoned too many prosecutions (like that of the late Sen. Ted Stevens).

The government pursued exactly these tactics in "Strippergate." Prosecutors withheld Brady material until after trial. They allowed witnesses Michael Galardi and John D'Intino to lie (which they dutifully did), or at least tolerated it. They commented on Inzunza's silence during closing argument, an overt Fifth Amendment violation. The courts supposedly are there to police such misconduct. But instead of policing it, the courts in "Strippergate" told us, "Never mind — Inzunza was probably guilty anyway." It is too bad.

Nine years ago, then-U.S. Attorney Carol Lam piously pronounced her office the guardian of "open and honest government" in San Diego. Today, Lam works as general counsel to Qualcomm, a local company that makes cellphones. I wonder if, in her new role, Lam counsels her bosses on the pitfalls of plying government officials with large sums of cash in exchange for favorable action on matters affecting Qualcomm business.

After all, Qualcomm and its political action committee, QPAC, donated hundreds of thousands of dollars in "campaign contributions" to U.S. representatives and senators in the most recent election cycle. These included Zoe Lofgren (who got $2,000 from QPAC in the most recent cycle). I wonder if it is coincidence that Lofgren is the sponsor of a bill called the Wireless Tax Fairness Act of 2011, which would prohibit state and local governments from imposing taxes on cellphones for the next five years.

Earlier this year, the bill passed the House with strong support, including that of House Speaker John Boehner. Boehner got $6,000 from QPAC. Sen. Orrin Hatch is a ranking member of the Senate's Finance Committee, which now has responsibility for the bill. He got $7,000 from QPAC.

I also wonder if Lofgren's, Boehner's and Hatch's support of the bill possibly came "at or near the same time" as their receipt of QPAC's "campaign contributions." If so, then maybe all three of them (and Qualcomm) should be the next targets of local federal prosecutors, for taking Qualcomm money in exchange for favorable action on the Wireless Tax Fairness Act.

Such a case will never be brought, of course. Qualcomm is a Fortune 500 company. It operates a respected cellphone business, not a chain of sleazy strip joints. An indictment of the politicians who take Qualcomm's money and vote for its bills would lack the pizzazz of "Strippergate." Where's the sex appeal in that?

Companies like Qualcomm, which pay to play in our current system of campaign finance, can rest easy. But no one who honestly looks at Inzunza's case will ever rest easy. This is because, in the end, the only thing that mattered was the government's desire to ruin him and his colleagues at any cost — and the courts' indifferent complicity in the government's cheating and hypocrisy that made it possible.


Lawton is the principal of Lawton Law Firm in San Diego. He specializes in intellectual property litigation and appellate litigation.

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