What legal stuff was totally made up in “Inventing Anna” ?

 

Print and online discussion of the Netflix limited series “Inventing Anna” is chiefly about the character of Anna Sorokin, alias Anna Delvey, of high society, high life, big lenders and their lawyers, splashy journalists and the doubtful judgment and ethics of all the above. In these respects the public has been eager to learn how much of “the whole story is completely true,” and what are the “parts that are totally made up.” I am here interested in these latter questions, but not much in the doings and sayings of Anna, her friends, and enablers, or the hotels, restaurants, and resorts of their cavorts. Instead, my interest is in the court case, its investigation, prosecution, and defense.

I was for a year an Assistant District Attorney in the Frauds Bureau of the Manhattan DA’s office, and before that a member of the Career Criminal Bureau where in my first court appearance I second seated our then Assistant Bureau Chief, Cy Vance. So my perspective might have some prosecution bias, although I subsequently defended cases against my old office and in between taught law for several years at NYU.

Indictment Announcement

Nearly the first scene of the series caught my attention: the announcement of Anna’s indictment by the prosecutor who would go on to try the case. Perhaps she was the assistant who sought the indictment. It has been fairly standard procedure in Manhattan for one ADA to pick up a case prior to presenting it to a grand jury and to keep it through trial and sentencing (or, more frequently, plea.) Continuity is a good thing. Some of the most difficult cases I handled as a prosecutor and as a defense counsel involved unwinding problems dating back to before I became involved.

It was the announcement of the indictment that was surprising. It was surprising for such an announcement to be made by the line prosecutor rather than a prosecutor of higher rank, for example, and often, the District Attorney, himself. The elegance of the room in which the announcement was made was also surprising. There was nothing remotely like it in the offices in my time and recent press briefings show there isn’t still. Most surprising, however, was that a public announcement of the indictment be made at all. The top charges were C felonies. A C non-violent, non-drug charge for a first offender has a maximum sentence of 5 to 15 years. (The minimum is 1 to 3 years. For offenses subject to “indeterminate sentences” the lower number is the least time before the offender is eligible for parole and the greater determines the offender’s latest release date without parole. Good time credits can produce a somewhat earlier release, up to one third of the greater figure.)

Several “true bills” with more serious charges would have been voted by Manhattan grand juries on that day. Anna was not then a celebrity. It was not yet a “press case.” So my judgment on the indictment announcement shown in the series: totally made up.

 

The Discovery

The prosecutor was trying to persuade defense lawyer to procure counsel more appropriate for a complex case. (Some ethical issues there. We don’t normally want the prosecution to have any involvement in selection of defense counsel.) The prosecutor announced that she had 11,000 pages of records (in lawyer speak she would probably have said “11,000 documents” but that might have confused those unfamiliar with that argot.) This is not at all an extraordinary quantity of discovery for a financial case. Not very many of those pages, however, would have been paper. Bank, hotel, restaurants records would all have been electronic. The crucial paper documents for example those with Anna’s signature, might possibly have been supplied to the defense as paper copies. High quality scans, however, would probably have been good enough, with the understanding that a defense expert could examine originals as requested. So the actual paper would have been of too little volume fill the many boxes shown in the defense office. It is also unlikely, given that it would have taken a staff of 7 to deal with the electronic records, which would have been in good business order from each provider. So, again, this is mostly “made up.”

 

Rejected Plea

Counsel in June, 2018, said in court that a sentence of 1 to 3 years should settle the case. In December an offer of 3 to 9 was made by the prosecution. It was reported that there was a side condition that would have permitted early release upon Anna’s binding agreement to leave the country. This purported condition aside, the offer by the prosecution was not remarkable. Given the difficulty of the defense, it is unsurprising that counsel should have recommended its acceptance.

Sometimes the accused wants a trial for reasons other than assessment of probable imprisonment time. Some offenders just aren’t good at cost benefit analysis. Others, especially “upstanding citizens,” say they cannot bear the humiliation of conviction or the degradation of prison. I prosecuted a few offenders who accepted that their lives were mostly going to be spent in prison in any event and for whom trial was a rare bit of entertainment. Anna fit into none of these categories. She thought that a trial would be better for her brand. She may well have been right.

It is unlikely, though not impossible, that the Assistant District Attorney assigned to the case would have been present when the anticipated plea was rejected. Cases plead out all the time. Usually, in the interest of efficiency, it is handled by the trial bureau ADA assigned to that court part. The court audience would not have been there for the Sorokin case but for other cases on the day’s calendar. It would have been a less spiffy looking group than shown in the series. Except for these trappings, the series seems to have the treatment of the plea negotiations about right.

No bail

Anna was remanded to Rikers which meant that proper consultation with her counsel to prepare the defense would be impossible. This was a serious blow to the defense, but a no-brainer for the judge. A well-traveled foreign national with no reluctance to forging documents and who is facing significant prison time is already a poor candidate for bail. That she had missed a court date by fleeing to California was the proverbial coffin nail. The judge could not, as she said in the series, have any confidence Anna would reappear for trial if freed on bail.

 

The Courtroom

There is one early scene that showed the courthouse in which the case was actually pre-tried and tried is 111 Centre Street, which has all the charm and dignity of a second rate 1960s office building. Later scenes in the series substitute the building of the New York Supreme Court Civil Division at 60 Centre. (Recall that “Supreme” here means what “superior” means in many states: the trial court of general jurisdiction. The highest NY court is the Court of Appeals in Albany.) 60 Centre looks like a courthouse.

 

Attempts and Dangerous Closeness

You may have been surprised at defense counsel’s emphasis in interrogating witnesses and in summation on the question whether Anna’s actions were dangerously close to obtaining loans from City National Bank and Fortress Investment, Inc. At least you may have been surprised unless you are a New York lawyer. The fact is that the Empire State is something of an outlier with respect to how close one must come to the prohibited evil to make out a criminal attempt. The statutory crime is: “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” NYPL 110.0.  The judge would also have read to the jury from the standard instructions, “Conduct which TENDS TO EFFECT the commission of a crime means conduct which comes dangerously close or very near to the completion of the intended crime.” (Emphasis in original.)

By contrast, The Model Penal Code, followed more or less closely by most states, requires only “a substantial step in a course of conduct planned to culminate in his commission of the crime.” ( MPC 5.01). The parallel element of the Massachusetts  code is “doing any act toward its commission” MA General Laws  Part 4, Title 1, Ch 274, Sec 6 (Emphasis added).

So Anna’s lawyer, Mr. Spokek, would seem to have had excellent reason to argue that neither her solicitation of a 22 million dollar loan from City National nor of a 25-35 million loan from Fortress came dangerously close to success. However encouraging these lenders may have sounded in early stages, and however slowly they got to it, neither loan was going to get ultimate approval without serious due diligence finally getting done. Anna’s applications could never have withstood anything remotely like standard investigation.

So, Anna should have been acquitted on both the attempt counts. She was however convicted for the attempted Fortress loan. (It is pure speculation, but not inconceivable, that most of the jurors wanted to convict on everything but the theft from Rachel Williams – who handed over her own credit card to the Marakesh hotel. The “not guilty” vote on the City National attempt might have been the result of a jury compromise to bring onboard the rumored holdout juror.)

As sound as was counsel’s defense on the attempt counts, he should, for strategic reasons, have gone in an entirely different direction.

 

A Better Defense?

Only two of the five C felony counts were attempts. The others were completed larcenies. So the “no dangerous closeness” line of defense doesn’t apply to them. It does precious little good to get an acquittal on two Cs if the client is convicted on three others. The prison time would be concurrent, and the acquittals would be at most a small advantage on the good time calculation.

The only defense with any hope for the completed larcenies is one that Anna proclaimed all along, and still maintains: that she had no intent to steal from anybody. To commit any larceny you must intentionally deprive someone of property, and for attempted larceny you must intend to deprive. The New York definition of “deprive” is “(a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.” 

Anna would have been happy to testify that she intended and expected to pay back loans, in fact to pay back everyone. Anna’s confidence, to the extent it was real, was founded on her faith that the private art club she was laboring to establish would flourish and that she would flourish with it. Perhaps she also half believed that her father really had hidden wealth that he had gotten out of Russia during the great “privatization” lootings.

Spodek’s “not dangerously close” argument on the attempts was in serious tension with what would have been the best line on intent. In fact, what the defense should, I think, have argued was that Anna was extraordinarily reckless in all her money dealings. She knew the risks she would not repay, but sailed along anyway. Recklessness is inconsistent with intent.

This strategy would have required putting Anna on the stand. When the defendant’s state of mind is at issue, the defendant’s testimony is usually crucial. Sometimes the prosecution just doesn’t have the goods on intent, but normally intent is what the jury would naturally think (and in some instances are told they may presume it if they wish, subject to possible rebuttal.) Anna’s testimony here would have had to go beyond claims of optimistic good intent. She would preemptively (before cross) concede that she had ignored the risks inherent in her plans, big risks, obvious risks. She would explain her reasons for her own aberrant conviction that everything would turn out fine. She would have had to admit that she told lots of lies of the “the check is in the mail” sort to gain time – motivated, always, by the sunny day she never doubted was coming, oblivious as she was to the obvious.

Probably nothing she could say would make the jury like her, but she might well have persuaded them that her deeply held and emotionally locked in commitment to the proposition of ultimate success was behind everything, though dishonest as to little things and reckless as to big ones. When she left the stand, even after cross, the jury might well have thought, at least on the C felonies, “blindly, egregiously reckless, but no intent.”

Defense counsel far too frequently advise their clients not to testify at trial (and far, far too frequently tell them not to testify to the grand jury.) A chief reason for concern about defendants’ testifying at trial is that some or all of their criminal history will then come out before the jury. (Usually the defendant starts out his testimony admitting what the judge has decided to let in. This preempts cross on the point, where the prosecutor could be expected to make much more effective use of defendant’s concessions of prior criminal acts.) This would not have been a problem here, as Anna had no prior bad acts on which the prosecutor would have been permitted to question her.

Even where their clients have no criminal record, however, defense counsel are chary of putting them on the stand. Trial lawyers on the defense side are highly practiced cross examiners. They glow with pride in remembering the many times their cross has caused prosecution witnesses to crumble. The thought of the same thing happening to their own clients strikes terror into their hearts. They may not give enough thought to the fact that the prosecutors’ stock in trade is the direct examination of witnesses. The median prosecutor is much the inferior of the median defense counsel when it comes to cross. A little less terror would be appropriate. Of course, in some cases counsel might be worried that the defendant would depart from the preparation, lie on cross, and get caught at it. Anna’s history and personality would give some cause for concern on this point. However, if Anna were prepared to concede on direct all the bad stuff not going to the “recklessness not intent” point, there shouldn’t have been much left for the prosecution to elicit a lie about.

The big problem with going full bore on the no intent because reckless line is that Anna would never agree. She was happy with no intent, but she would never have admitted that her whole business life for nearly two years had been catastrophically reckless. Even if that was the only decent chance she had to stay out of prison, it was more important to protect so far as humanly possible the image of a knowledgeable, creative, sound businesswoman and a natural candidate for high international society.

That the defense did not, and could not, have followed the best defense because Anna Sorokin would not have tolerated it. As to this, what the series shows of the trial and the lawyer-client interaction may well be “completely true.”