The backstory From an April CNN story:
The rapper Pras Michel was found guilty … of 10 criminal counts related to an international conspiracy reaching the highest levels of the US government.
The Grammy-winning artist and former member of the Fugees faced multiple counts over the failed conspiracy to help Malaysian businessman Jho Low and the Chinese government gain access to US officials, including former presidents Barack Obama and Donald Trump.
Michel was found guilty of conspiracy to defraud the US, witness tampering and acting as an unregistered agent of a foreign government.
Now an excerpt from the Motion for New Trial filed Tuesday in U.S. v. Michel (note that the motion urges many grounds for the new trial, including making many allegations of incompetence on the part of Michel's earlier lawyer):
A new trial is warranted under Strickland because Michel's defense counsel, David Kenner, was ineffective and severely prejudiced the defense.
A new trial is also warranted because Michel's counsel was ineffective in violation of Michel's Sixth Amendment and due process rights, causing severe prejudice. The "right to counsel is the right to the effective assistance of counsel" under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 686 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." …
To establish ineffective assistance of counsel, a defendant must show both that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Prejudice means "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Michel's lead trial counsel, David Kenner, lacked experience handling a complex white collar case, having gained prominence over his five-decade career for successfully representing Calvin Broadus ("Snoop Dogg") in his 1993 murder trial, but lacking any relevant experience for a complex case of this nature. His general criminal practice, which involved defending charges of assault, robbery, homicide, false imprisonment, burglary, drug offenses, DUIs, and reckless driving, did not qualify him for this case. [He] also failed to take the necessary steps to competently represent Michel.
As demonstrated below, Kenner was unqualified, unprepared, and ineffectual throughout the trial, and his myriad errors severely prejudiced the defense and undermined the reliability of the verdict, easily satisfying both prongs of the Strickland test. Kenner used an experimental AI program to write his closing argument, which made frivolous arguments, conflated the schemes, and failed to highlight key weaknesses in the Government's case.
Kenner generated his closing argument—perhaps the single most important portion of any jury trial—using a proprietary prototype AI program in which he and Alon Israely [a family friend] appear to have had an undisclosed financial stake. Zeidenberg Decl. ¶ 5–7 & Exs. C–G. {See EyeLevel, First Use of AI in Federal Trial: EyeLevel's Litigation Assist Aids Defense in Pras Michel Fraud Case, https://www.eyelevel.ai/post/first-use-of-ai-in-federal-trial; Olivier Katz, LinkedIn post, https://www.linkedin.com/posts/olivier-katz_legaltech-ai-ailaw-activity-7063539584009207808-9PNU/.} Far from hiding this fact, Kenner boasted about it after Michel was convicted, stating; "The system turned hours or days of legal work into seconds." {Kenner's reliance on an experimental AI program may also explain why the closing argument misattributed a Puff Daddy song to Michel's group, the Fugees. Kenner asserted that the Fugees had a song with the lyrics, "Every single day, every time I pray, I will be missing you." In fact, those lyrics are by Puff Daddy. He also misattributed Michel's worldwide hit "Ghetto Supastar (That is What You Are)" to the Fugees, when it was actually a single by Michel.} The AI company touted it as the first use of "generative AI in a federal trial." It showed. Kenner's closing argument made frivolous arguments, misapprehended the required elements, conflated the schemes, and ignored critical weaknesses in the Government's case. The closing was damaging to the defense.
For example, Kenner's first substantive statement to the jury appeared to be an admission of guilt: "Ladies and gentleman, this case started back in 2012 when there was, as the government characterizes it, an effort to funnel money to President Obama's reelection campaign." Having admitted to the scheme, Kenner launched into his sole, frivolous defense—that Michel had made the contributions in order to help Low get a photograph with President Obama, and not because he wanted to influence policy:
In 2012, Mr. Michel was trying to arrange to get a photograph for someone named Jho Low. This was not about an attempt to influence the United States Government or its position on anything. I don't really think that it mattered what happened in the election insofar as Jho Low was concerned. Jho Low in 2012 wanted a photograph. That is what this entire case at that time was about. Jho Low is willing again to spend any amount of money to get this photograph. Jho Low had whatever reasons he had for wanting that photo. You could call it a trophy photo. You could call it whatever it is you want. This is a man who had the money, the wherewithal to spend anything he wanted to do or spend – you heard about this man spending a million dollars a day to rent a yacht for 40 days to party in Europe. This $20 million to him was nothing. To Pras, $20 million transitioning into a new life and a new career was incredible for him. He wanted to make that money. He did get that money. And he did try his very, very best to get Jho Low that photo.
Of course, the reason why Low allegedly wanted to funnel money to the Obama re-election campaign was immaterial. But Kenner appears to have confused the conduit scheme with the lobbying scheme, which did allege Low's policy aims. Kenner conflated these schemes again when he argued: "What he did was use what he believed to be his money to further the effort to get Jho Low this $20 million photograph. The question of whether or not Mr. Michel was involved in a conspiracy, willfully and knowingly to funnel foreign money into President Obama's election campaign and another conspiracy to not register under FARA, willfully and knowingly, is simply not true… For the 2012 accounts, as I told you, this was all about a photograph." But the alleged FARA scheme was completely independent of the 2012 conduit scheme, as anyone who read the indictment would know. By focusing only on a meritless defense about Low's reasons for the alleged conduit scheme, Kenner failed to provide a cogent theory of defense.
Similarly, when Kenner attempted to argue why the jury should acquit on the § 951 charge and conspiracy, he failed to make the strongest and most obvious argument: that there was no evidence that Michel or anyone else acted at the "direction or control" of the Chinese government. Indeed, Kenner made no reference to the "direction or control" element central to the charge. Instead, he appeared to believe—incorrectly—that the success of the alleged scheme was an element of the offense, and he also appeared to agree with the Government that Steve Wynn had lobbied the Trump administration:
And then what did Mr. Pottinger do? He called and asked for a representative from White House counsel's office to come and to join the meeting, because he was concerned that the President might be treading in unlawful territory. And he was there when Mr. Wynn again said to the President that it would be helpful to extradite Mr. Guo from the United States. Now, there are several things that are important about Mr. Pottinger and his testimony. What is important is that the President was not being influenced by Mr. Michel. The President was not being influenced by the People's Republic of China. The President was not being influenced by Jho Low. The President was not being influenced by Guo Wengui. The President was being influenced by Mr. Steve Wynn, the casino magnate, as you heard. And you know what I think what is also very, very significant here is … [t]he government says that all of this stuff was done to help the Chinese's People's Republic to influence the government of the United States. Mr. Pottinger says, I didn't allow that to happen with the President.
Kenner appeared to believe it was a defense if the alleged lobbying was unsuccessful. Kenner also appeared to believe it was a defense if it was Wynn who influenced the Government to extradite Guo, ignoring the Government's contention that Broidy used Wynn for this purpose. Kenner did not understand either point and, as a result, his closing offered no coherent rationale for acquittal.
Kenner also failed to address other critical weaknesses in the Government's case, detailed in Michel's Motion for Judgment of Acquittal, filed the same day as this brief, which Michel hereby incorporates herein by reference.
At bottom, the AI program failed Kenner, and Kenner failed Michel. The closing argument was deficient, unhelpful, and a missed opportunity that prejudiced the defense….
Even if there were no prejudice under Strickland, Michel would still be entitled to a new trial under Cuyler because his counsel had two conflicts of interest that adversely affected his counsel's performance….
Kenner and Israely had a conflict of interest when they decided to use an experimental AI program in which they had a financial stake to write the closing argument, resulting in a frivolous and ineffectual closing argument.
It is now apparent that the reason Kenner decided to experiment at Michel's trial with a never-before-used AI program to write the closing argument is because he and Israely appear to have had an undisclosed financial interest in the program, and they wanted to use Michel's trial as a test case to promote the program and their financial interests. Indeed, the press release the AI company issued after the trial that quotes Kenner praising the AI program states that the company launched the program "with technology partner CaseFile Connect." The CaseFile Connect website does not identify its owners, but it lists its principal office address as 16633 Ventura Blvd., Suite 735, which the California Bar website indicates is the office address for Kenner's law firm. Open sources further indicate that the third office address CaseFile Connect's website provides is associated with Kenner's co-counsel and friend, Israely. The reason they used the experimental program during Michel's trial and then boasted about it in a press release is now clear: They wanted to promote the AI program because they appear to have had a financial interest in it. They did this even though this experiment adversely affect Michel's defense at trial, creating an extraordinary conflict of interest.
As demonstrated above, Kenner and Israely's decision to elevate their financial interest in the AI program over Michel's interest in a competent and vigorous defense adversely affected Kenner's trial performance, as the closing argument was frivolous, missed nearly every colorable argument, and damaged the defense. Cuyler therefore warrants a new trial….
It seems to me that it's not ineffective assistance simply to use an experimental AI to write a rough draft—if the output happens to be good, or if it's weak but one edits it into something good (or at least minimally competent). But if the AI produces an incompetent argument and it stays incompetent after the lawyer's editing, then that might be ineffective assistance.
The post Fugees Rapper Pras Michel Claims His Defense Lawyer Ineffectively Used AI Program That Led to Botching Closing Argument appeared first on Reason.com.
