Lori Loughlin,left, and Latham & Watkins partner William (BJ) Trach (right)

As the mother of a current college junior and an incoming freshman, I've had zero sympathy all along for the parents caught up in the "Varsity Blues" sting.

The thought of moms and dads willing to fabricate their kids' college applications, fake their academic and athletic credentials, bribe corrupt SAT and ACT exam proctors and pay off university employees so that their children could gain admission to elite schools still makes me fume. (Though of course who knows if there will even be in-person classes this fall … sigh.)

In any event, I applaud a ruling on Friday by U.S. District Judge Nathaniel M. Gorton in Massachusetts, who refused to toss the case even though the government failed to promptly share potentially exculpatory evidence.

"The government's failure to do so was irresponsible and misguided," Gorton wrote. "It was not, however, willful and is partly explained (but not excused) by the AUSAs' imprudent underestimation of the context, relevance and potential exculpatory nature" of the material.

Gorton also refused to suppress the evidence, rejecting the plaintiffs' arguments that it was tainted by extreme misconduct. 

"The court is satisfied that government's counsel has not lied to or attempted to mislead the court or fabricated evidence," the judge wrote. 

In late March, a whopping 35 lawyers—including litigators from Latham & Watkins; Nixon Peabody; Duane Morris; Mintz, Levin, Cohn, Ferris, Glovsky and Popeo; Sidley Austin; Hueston Hennigan; White & Case; Skadden, Arps, Slate Meagher & Flom; and Boies Schiller Flexner—filed a motion asking the court to dismiss their clients' indictments with prejudice, or at the very least exclude the evidence, based on the government's Brady violations.

Latham partner and executive committee member William (BJ) Trach, who along with colleagues Sean Berkowitz, Perry Viscounty and Roman Martinez represents actress Lori Loughlin and her fashion designer husband Mossimo Giannulli, signed the motion. 

"From day one, a centerpiece of the government's case against defendants has been a series of recordings of Rick Singer talking to his clients between September 2018 and March 2019 about payments they allegedly made to help their children gain admission to various universities. The government has trumpeted those recordings in every iteration of the indictment, and has repeatedly cited them in opposing defendants' motions for various forms of pre-trial relief," Trach wrote. 

"Yet last month," he continued, "the government belatedly disclosed Singer's contemporaneous written notes revealing that those recordings were a sham carefully engineered by government agents in an effort to 'entrap' defendants and 'nail' them 'at all costs.'"

Defense counsel argue that Singer told parents that their payments would be used to fund legitimate, school-related programs, not to bribe to corrupt officials—and the lawyers say the previously undisclosed notes Singer made on his iPhone support this theory.

For example, Singer wrote that government agents "continue to ask me to tell a fib and not restate what I told my clients as to where there money was going—to the program not the coach and that it was a donation and they want it to be a payment."

He also wrote that the agents "are asking me to bend the truth," and that they directed him to ask "each person to agree to a lie I was telling them."

Another nugget: Singer wrote that the feds "want to nail Gordon at all costs"—a reference to Gordon Caplan, the former co-chair of Willkie Farr & Gallagher who pleaded guilty to conspiracy and fraud charges and served a one-month prison sentence last year. 

All along, defense lawyers repeatedly pressed the feds to produce evidence about lack of intent, including evidence that Singer said their clients' payments would fund legitimate school programs.

The government's response? That it had "scrupulously adhered to its discovery obligations in this case, and gone well beyond those requirements." 

Except per defense counsel, at least two members of the prosecution team viewed Singer's notes in October 2018, but waited 16 months to produce them. 

This was definitely not the government's finest hour, but as Judge Gorton pointed out, during the early stages of the investigation when the notes were made, Singer was not fully cooperating. Instead, he "was surreptitiously obstructing the government's investigation by alerting potential targets," Gorton wrote. Indeed, Singer was subsequently charged with and pled guilty to a single count of obstruction of justice.

The government categorically denied that any member of the investigative team ever crossed the line by directing Singer to lie, attempt to entrap suspects or elicit false admissions of guilt. And as Gorton noted, "[G]overnment agents are permitted to coach cooperating witnesses and create ruses designed to elicit incriminating information from willing participants during the course of an investigation."

The feds also said that they initially believed Singer prepared the notes for his attorney and therefore the material was privileged.

In declining to dismiss the indictments, Gorton ruled that defense counsel "will have ample opportunity to cross examine [Singer] if and when he testifies at trial. Whether Singer's calls in October, 2018, were consistent with his prior representations of his 'program' and whether they demonstrate that defendants believed their payments to be legitimate donations rather than bribes is an issue squarely for the jury after a trial on the merits."

He also noted that while the disclosure was tardy, it won't result in a miscarriage of justice.

The notes were "disclosed more than eight months before the scheduled trial and before defendants' deadline for the filing of dispositive motions," Gorton wrote. "Defendants have ample time to prepare for trial with the benefit of the subject note and have not been unduly prejudiced by its late disclosure."