Former Vice President Joe Biden’s reaction to the verdict in the corruption trial of former Rittenhouse Square restaurateur Bill Lipton is emblematic of the failure of our criminal justice system. Biden essentially scolds jurors for exposing Lipton to public scrutiny, saying “if you’re sitting there in the jury box and you’re thinking ‘I don’t like the way he did something’ … you should do that. Not lean in and say, ‘Don’t let him walk.’” That’s morally wrong. In all cases, jurors should defer to the judgment of the government in its case.
Biden is right that the transparency about the government’s case should serve as an effective deterrent to people who might seek to violate the law. But that’s not what happened here. As part of the government’s case, they introduced testimony to a federal grand jury to determine whether Lipton was cooperating with the federal government at the time he allegedly committed the crimes for which he was charged. No jury ever heard any of that testimony.
Indeed, many of the allegations at the heart of the criminal case are barred by D.C. law from ever being made public for a very good reason: public officials are not afforded immunity under federal law, including from the taint of potential future criminal prosecution. The public release of allegations like those in this case — which include allegations that Lipton used the restaurants to advance his political career or to influence votes — could damage prosecutions of other elected officials.
Biden also claimed that jurors “have a job to do, but do it in a very limited fashion.”
This is wrong. Justice, as recognized in our common law, requires that persons commit the crime in question in a limited manner and do so knowingly, and that the rights to a fair trial and a fair disposition are not prejudiced by the disclosure of information regarding an earlier conviction. That’s why when prosecutors present evidence of criminal conduct to a jury — and when an intentional breach of the Constitution occurs — the court should consider it admissible as “sufficiently fresh and real evidence” to support its finding.
Biden implies that because prosecutors didn’t make the inclusion of Lipton’s pending prior convictions an issue at the trial, they shouldn’t have had to disclose the information to a jury about his prior convictions. The testimony about Lipton’s prior convictions was made relevant to a jury’s assessment of Lipton’s guilt or innocence. It was also meant to warn the jury about Lipton’s risk of being a flight risk. And the government never promised that Lipton would be exempt from the law — merely that because of the sensitivity of the evidence, it needed to remain secret. There is no evidence that what was disclosed gave the jury any unfair advantage in reaching a verdict.
The prosecutors handling this case were transparent and thorough throughout the course of the trial. They disclosed as much as they could about Lipton’s prior convictions without revealing them to the defense, and they were promptly subject to U.S. District Court judge Leo Strine’s order to keep quiet about it because of a risk of prejudice. The burdens on the government were simply to ensure that the information would be sufficiently fresh to support a finding of guilt without compromising Lipton’s chances for a fair prosecution. Any claims that the prosecutors were not “open and transparent” about this case are an outrage.
In the wake of these events, Biden should issue a strong statement to all D.C. residents that the criminal justice system works, that the fair administration of justice is protected by the law, and that those who abuse their authority should expect to face consequences. In the long run, it would have been far better for Biden to have simply recognized what should have been obvious all along: Our legal system is broken and the status quo needs to change.