An Exercise of Prosecutorial Discretion
Recently former employees of Bank of America filed declarations in federal court asserting that the venerable bank had instructed them to lie to lull homeowners seeking mortgage adjustments. This, the ex-workers asserted, was systematic:
Employees, many of whom allege they were given no basic training on how to even use HAMP, were instructed to tell borrowers that documents were incomplete or missing when they were not, or that the file was “under review” when it hadn’t been accessed in months. Former loan-level representative Simone Gordon says flat-out in her affidavit that “we were told to lie to customers” about the receipt of documents and trial payments. She added that the bank would hold financial documents borrowers submitted for review for at least 30 days. “Once thirty days passed, Bank of America would consider many of these documents to be ‘stale’ and the homeowner would have to re-apply for a modification,” Gordon writes. Theresa Terrelonge, another ex-employee, said that the company would consistently tell homeowners to resubmit information, restarting the clock on the HAMP process.
Worse than this, Bank of America would simply throw out documents on a consistent basis. Former case management supervisor William Wilson alleged that, during bimonthly sessions called the “blitz,” case managers and underwriters would simply deny any file with financial documents that were more than 60 days old. “During a blitz, a single team would decline between 600 and 1,500 modification files at a time,” Wilson wrote. “I personally reviewed hundreds of files in which the computer systems showed that the homeowner had fulfilled a Trial Period Plan and was entitled to a permanent loan modification, but was nevertheless declined for a permanent modification during a blitz.”
Former employees say they were rewarded with bonuses and gift cards to Bed Bath & Beyond.
Surely we can count on the criminal justice system to address such allegations of fraud, yes? Our investigators and prosecutors will focus on what is important — what is meaningful — and invest scarce government resources accordingly.
Well, no. Prosecutions from the mortgage collapse and its aftermath are scarce. However, you can count on the criminal justice system to punish people for menacing the likes of Bank of America with children's chalk.
In San Diego City Attorney Jan Goldsmith, through Deputy City Attorney Paige Hazard, are prosecuting Jeff Olson for 13 counts of misdemeanor vandalism. Olson wrote slogans like "Stop big banks" and "Stop Bank Blight.com" in children's water-soluble chalk on sidewalks outside of Bank of America branches in San Diego.
Bank of America exercised its right to petition the government for redress of grievances (in this case, the grievance that someone was writing mildly critical things in children's chalk on their adjacent sidewalks) by repeatedly demanding that Olson be prosecuted:
"Any updates on this," Freeman wrote in an email to Miles and Deputy City Attorney Nicole Kukas obtained through a public records request.
Two minutes later, Kukas responded. "Thank you for checking in on this case. It is still under review. I will give you an update by the end of the week."
No update came. Ten days later, Freeman was back on the case.
"Any updates on a filing?"
"I appreciate your patience," wrote Officer Miles just three hours after Freeman's message. "I will forward this to the City Attorney."
Then on April 15, Deputy City Attorney Paige Hazard contacted Freeman with the good news. "I wanted to let you know that we will be filing 13 counts of vandalism as a result of the incidents you reported."
Deputy City Attorney Hazard, in further exercise of prosecutorial discretion, wants to be sure that the criminal trial of Mr. Olson focuses on his danger to the community and his defiance of the interests of the People of the State of California and the City of San Diego, and not on mere fillips and irrelevancies:
Judge Shore granted Hazard's motion to prohibit Olson's attorney Tom Tosdal from mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.
Hazard had explained to the court that Bank of America should not have to suffer the grave costs of chalk removal from its adjacent sidewalks. After all, is there no justice?
Circumventing the rules, without permission, under the color of night, and now waiving a banner of the First Amendment, does not negate the fact that defacement occurred, a private business suffered real and substantial monetary damages, and Defendant is responsible.
Money that Bank of America spends asking its janitors to hose down the sidewalk is money it can't use to buy Bed Bath & Beyond gift cards for its employees who are top performers at defrauding mortgagees.
As we frequently discuss here, prosecutors enjoy astoundingly broad discretion to determine how people are charged and punished, and for the most part face no consequences for their actions. We're told such discretion, and such protection, is a necessary and reasonable component of the criminal justice system, and that we can trust the good judgment and good faith of prosecutors.
Consider Jan Goldsmith and Paige Hazard, and their exercise of discretion. Aren't you filled with warm feelings of trust and confidence in our system?
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