A question every criminal defense attorney gets from time to time is, “How can you defend people you know in your heart are guilty?” The answer is that the most clearly guilty are often the easiest – from a personal/emotional standpoint – to defend. Our job is, in part, to be quality control for the criminal justice system. We ensure government attorneys and police are coloring within the lines in their investigations and prosecutions, and that the crucial constitutional limits on the power of the government are respected, as they must be if we all are to keep our freedoms. I’m a competitive person and don’t like to lose, but when the investigation is done correctly and the evidence is overwhelming, I at least feel satisfied that our clients got a fair shake and that the system worked the way it is supposed to.
The hard ones are where you come to believe that your client isn’t guilty, or at least is substantially less guilty than the D.A. believes. We’re supposed to presume innocence, but the human brain jumps to conclusions easily, and the real crooks lie often enough to make the protestations of the truly innocent fall on cynical ears of the public, judges, potential jurors, readers of newspaper police blotters…(If you doubt me, spend five minutes in a comments section of any newspaper story about almost any arrest of any significance.) The pucker factor when you’re the last line of defense for a person erroneously or falsely accused is very, very real.
In those situations, you pray that the process is respected, and that through a dogged insistence that judges and juries follow our centuries old principles of due process – evidentiary rules, the right to remain silent, the presumption of innocence, and all the rest – a righteous acquittal will follow. The system isn’t perfect, but it’s the least imperfect yet devised, and worth fighting to protect. But for it to work, the process must be prime, and jumping to conclusions is the biggest sin.
In theory, agents of the government face a high and heavy burden before they can deprive you of your life, liberty, or property. This is as it should be, and as it is in most criminal cases. But the government has means other than a criminal prosecution to take away your fundamental rights, and sometimes the process is frighteningly flimsy.
I thought about all of this when I read this week of the efforts by the Gaming Control Board to have casino magnate Steve Wynn declared “unsuitable” to hold a Nevada gaming license, for not being “a person of good character.”
I found the headlines alone chilling. The government can determine that you aren’t moral enough to earn a living in your chosen profession? By whose standards is your character good enough? Donald Trump’s? Harry Reid’s, who famously and unapologetically levied a false allegation of tax evasion against a political rival on the floor of the Senate? Any given Clinton’s? I think I can count on one hand the number of elected officials I’ve met who are qualified to judge anyone else’s moral character.
And how do you define good or bad character? Does infidelity disqualify you? Being rude to a waiter? Going to church often enough, or too often? Having certain political opinions? Committing crimes? Traffic infractions? Being a Green Bay Packer’s fan? Must it have anything to do with the actual industry being regulated?
And let’s be honest – Las Vegas isn’t called Sin City for nothing. The official marketing slogan for the city was, for a long time, a call to do all the immoral things you wouldn’t get away with back home. Expecting casino/resort owners or managers to live monkish lives seems more than a little bit absurd.
The accusations against Steve Wynn involve multiple sexual misconduct allegations, detailed in a Wall Street Journal article, accusations which Wynn has categorically denied. Most of the accusations resulted in some sort of settlement agreement, sometimes to the tune of several million dollars, and a non-disclosure agreement, which is very standard in such situations. No criminal charges relating to sexual assault, as far as I know, have ever been pursued, much less proven in open court. The victims in those cases felt sufficiently empowered to make the accusations and obtain settlement agreements, and presumably were satisfied with their pounds of flesh. And Wynn no longer leads the company which bears his name.
The gaming board justifies using these allegations to banish Wynn from the industry under their regulatory authority by saying that because of the media attention, Mr. Wynn’s actions have brought discredit upon the State of Nevada generally and our gaming industry specifically, which is frankly absurd. I’d love to meet the mythical individual who decided to go to Atlantic City instead of Vegas because one casino company CEO was accused of fraternizing with his employees in the midst of a bitter divorce.
Even more offensively, one of Wynn’s sins was to not appear to testify as a witness against himself. If you just thought to yourself, “If you got nuthin’ to hide, you got nuthin’ to fear from a little interrogation,” congratulations – you are the reason we have a Fifth Amendment in the first place. Once you have seen (as I too often have) the inexplicable phenomenon of people confessing to things they didn’t do, or the even more common one of statements taken out of context to imply confessions that aren’t, you understand the importance of the right to remain silent in the face of government attempts to abridge your rights, no matter how innocent you are. The Gaming Control Board and Commission have an enormous amount of power over the people they regulate. NRS 463.1405 gives the Commission “full and absolute power and authority” to determine whether one is “suitable” to have a gaming license, or ought to be allowed to keep it, and the Board has “full and absolute power and authority” to essentially prosecute those cases. They may revoke or deny a license for “any cause deemed reasonable” – deemed so by the Commission itself, of course.
No government body in a free society should have “full and absolute power” over much of anything, particularly over things like “suitability” to run a business that are impossible to define, and therefore lend themselves to whatever definition regulators may wish to impose. If there is a better description of “arbitrary and capricious,” I don’t know what it is.
There is an allowance in the law to appeal decisions of the Commission, but such review is not available for those seeking gaming licenses. Moreover, the Ninth Circuit has held that the Board and Commission enjoy absolute immunity from lawsuits accusing them of due process violations. Under its regulations, the Board doesn’t have to prove Mr. Wynn committed any crime, or even that he broke the law. They can make up their own cause, deem it reasonable in their own minds (“He made us look bad on CNBC!”), and drum him out of the industry on account of their own post-hoc definitions of character and suitability.
Even assuming that Steve Wynn is the creepiest SOB ever to own a casino, that’s not right. And a process that allows such unfettered government power over anyone’s livelihood is worse than any wrongdoing of any single individual.
It’s easy to not feel sorry for Steve Wynn – he has plenty of money, it’s easy to believe a Las Vegas casino magnate took liberties with his staff, and if you’re one of an increasing number of blind tribal partisans, he’s evil for giving money to Republicans and gets what he deserves. With all the demonization of millionaires so popular in some quarters these days, it’s no wonder he’s just assumed to be guilty of whatever he’s accused of. Personally, if he actually did some of the things he’s accused of, I think he should be facing criminal prosecution, not a regulatory kerfuffle.
Whatever shortcuts government takes with people you don’t like, they can also take with you. Whatever deprivations the government feels empowered to heap upon the rich and powerful, you had better believe they’ll be visited tenfold on those who can’t afford a team of lawyers to defend them. Process must be prime, no matter how important or historically mobbed up an industry. It’s time to revisit the idea that any government body ought to have “full and absolute power and authority” over anyone’s ability to make a living.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected]