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Crowdfunding Democratizes Justice, For Some


By Brandon Lowrey
March 11, 2019

Deborah Nichols pled her case on the Internet.


She asked strangers for $75,000 to bail out her son Sakai French, who is being held in adult jail in Las Vegas awaiting his murder trial. Arrested last year at the age of 16, he is accused of shooting and killing another teen during a fight at a high school.

Nichols took to a website called Funded Justice, where she told Sakai’s story and posted photos of him: Sakai playing with a dog. Sakai at the beach. Sakai flashing a braces-lined smile in a jail visitation room.

“No matter what’s against him he still keeps his joy,” the mother of three wrote. “Son don’t let them take your beautiful smile away …”

Deborah Nichols turned to a crowdfunding platform named Fund Justice to raise bail funds for her son Sakai French, who is being held in adult jail in Las Vegas for allegedly murdering another student at the age of 16.

Nichols is among a flood of people turning to crowdfunding platforms to pay for criminal defense or when facing deep-pocketed adversaries in civil and family litigation. There, they ask strangers online to chip in with small donations to help them pay often devastatingly high bail or legal bills.

Nichols has not received a single dollar since the campaign went live two months ago.

“It hurts a lot,” she told Law360 in a recent interview. “I feel like me and my son are invisible. That we don't matter.”

The idea of independent fundraising for legal fees sounds democratizing and transformative, and for some, it has been.

However, in the world of crowdfunding, merit and need can take a back seat to publicity, storytelling and viral potential. Well-to-do Trump associates Paul Manafort and Roger Stone have benefited from efforts to crowdfund their legal defenses, but most campaigns are small and fail to reach their funding goals.

Karen North, a professor who studies the psychology of social media at the University of Southern California, likens crowdfunding to celebrity Kim Kardashian’s advocacy on behalf of several people who have been wrongfully convicted.

“It's great, but the thing is, for the handful of people she's freed, how many other people are just sitting in jail or in prison?” North said.

A New Era of Fundraising

Perhaps the most successful legal-industry crowdfunding effort so far is the celebrity-endorsed and professionally administered TimesUp Legal Defense Fund.

It has raised about $24 million in its first year on the GoFundMe.com platform, and spends its money supporting people suing over sexual harassment allegations or defending against retaliation. The fund also had the benefit of generous celebrity support and advocacy.

CROWD FAVORITES

Some high-profile cases have raked in large amounts of cash using crowdfunding:

» George Zimmerman, who in 2013 shot and killed unarmed teen Trayvon Martin in Florida, crowdfunded hundreds of thousands of dollars for his bail, defense and living expenses. His attorneys argued he was not guilty of murder or manslaughter on self-defense grounds. A jury acquitted him following a two-week trial.

» Stephanie Clifford, also known as Stormy Daniels, raised $587,415 on crowdjustice.com in her effort to void a nondisclosure agreement between herself and President Donald Trump. Michael Cohen, the president’s former lawyer, later agreed to void the agreement.

» Marcus Hutchins, also known as MalwareTech, has raised over $27,000 on crowdjustice.com. Hutchins is known for having defeated the “Wannacry” ransomware attack in 2017. The British security researcher was arrested later that year and accused of creating malware that stole banking information in 2014.

Funded Justice and CrowdJustice are two other platforms that cater specifically to those involved with the legal system, for a slice of the donations. Funded Justice takes 7 percent, plus credit card processing fees; the lawyer-founded CrowdJustice takes 3 percent plus processing fees and sends the funds to the attorneys involved in the matter.

CrowdJustice touts several more modest success stories, including raising more than $51,000 in 2017 from 1,068 people for a gerrymandering challenge in Virginia and £170,000 in 2016 for a legal fight over parliamentary procedure related to Brexit.

But the majority of legal crowdfunding efforts aren’t anywhere near as successful.

Elsewhere on legal-expense crowdfunding websites, a mother from Florida asks for cash to pay a lawyer for her divorce and custody dispute with her estranged husband. A 20-year-old college student in North Carolina facing deportation asks for $8,000 to cover legal and filing fees for immigration court. Neither campaign has come close to meeting its goal.

Crowdfunding favors those who already command attention, said Kristina Lerman, project team lead at the University of Southern California’s Information Science Institute. Attention is a highly precious currency in the era of social media; crowdfunders must compete with every tweet, Facebook post and advertisement on the web.

"Almost all messages stop spreading with the first person who posts them," Lerman said. "Facebook has, what, 2 billion active users? Can you imagine if everybody was sharing everything everybody posted? We're already drowning in information."

The American Civil Liberties Union, the National Association for the Advancement of Colored People, and various other organizations have long collected money for donors that went on to fund important litigation. Historically, groups like these have raised funds for litigation physically, from crowds.

But that was pre-Internet.

“Ten years ago, we never thought Blockbuster stores could go out of business,” said Barrett Frankel, manager of customer success management at fundraising platform Classy, which serves nonprofit organizations. “It’s all gone online. We see fundraising being very similar.”

The defining power of crowdfunding is that it tells a story, creates a sense of urgency, and makes donors a part of the story, she said. It’s one of several tools that Classy uses in its campaigns.

In the legal industry, crowdfunding is just another way of lowering the financial barrier to those who want to participate in the legal system, said Maya Steinitz, a University of Iowa College of Law professor who studies litigation finance.

A case’s success shouldn’t ride on the wealth of the parties, she said.

“We have mechanisms throughout the civil litigation process to stop claims if they’re frivolous. We have mechanisms to ask the court to decide that the case shouldn’t move forward. We have safeguards,” Steinitz said. “[The] question of whether or not you have money shouldn’t be such a safeguard.”

How We’re Wired

The success of a crowdfunding campaign can ride on how it interacts with viewers’ ingrained psychological impulses, North said.

People are psychologically wired to hesitate to donate to campaigns that are not already successful, for instance. They’re more likely to scroll right by $0 campaigns like Nichols’ than they would a campaign with $10,000 already in the bank, because that $10,000 buys that campaign credibility in the mind of the typical Internet user.

Another psychological quirk motivates the crowd to donate more to campaigns that have already met their goals, meaning it might be smarter to set a $5,000 goal if you want to raise $10,000, she said.

CROWD CONNING

Despite shining a light on many legitimate cases of need, crowdfunding platforms can also offer con artists a platform to raise money with a story that tugs on donors’ heart strings — but ultimately proves false. Here are some of the most infamous examples of crowdfunding gone wrong.

» In perhaps the most widely publicized crowdfunding fraud case, Kate McClure, Mark D’Amico and Johnny Bobbitt Jr. scammed GoFundMe.com users out of over $400,000 over the 2017 holiday season, according to NBC News. McClure and D’Amico ran the scheme with Bobbitt, a homeless man in Philadelphia, weaving a heartwarming — but false — tale that went viral, according to press reports. The couple falsely claimed that McClure ran out of gas on a highway and Bobbitt came to her rescue, telling her to stay in her car while he spent his last $20 on gas for her. The trio was arrested and face criminal charges, according to media reports.

» A Minnesota man in October pled guilty to faking cancer and spending $23,000 he received in GoFundMe.com donations on “marijuana, liquor, video games, and dart tournaments,” according to the Associated Press.

» A Colorado woman was arrested in September on suspicion of faking serious illness and raising nearly $20,000 on GoFundMe, according to The Coloradoan. Several members of her community had organized fundraising events for her, the newspaper reported.

Those seeking help in criminal cases face yet another barrier: “the just world phenomenon,” a basic psychological tendency for people to assume the world is fundamentally fair. In other words, if someone has been arrested, they must have done something wrong at some point — even if it isn’t the crime they’re currently in jail for, North said.

This allows the rationalization of injustice, or the dismissal of sympathy for those accused of crimes, however complex the situation might be.

There is also the matter of fraud on the part of people running the campaigns.

The lack of regulation in the crowdfunding industry means there is no assurance that the stories are real or the funds are being spent as advertised, experts said. Indeed, some people who have raised funds on GoFundMe have been arrested after their heartwarming, viral stories turned out to be flat-out falsehoods.

Some emerging platforms are taking a different approach, such as Appolition — an indirect crowdfunding app that rounds up credit card purchases to the next dollar and donates the change to established community bail funds. The app’s founder, Kortney Ziegler, said it’s a way to allow people to help out and learn about the economic disparities of bail without much effort.

Ziegler said it was telling that people must turn to crowdfunding to afford things like medical expenses and bail.

"It says a lot,” he said, “about our overall infrastructure and where we are politically.”

Other like-minded organizations are pushing for change beyond what individual crowdfunding efforts can achieve.

In contrast to crowdfunding campaigns, the ultimate goal of the Bail Project — a national revolving bail fund that uses individual donations through its website as well as grants — is not to solve the inequalities caused by the cash-bail system one person at a time, but to effect a systemic change.

The Bail Project collects data on voluntary compliance with court dates for those it bails out in hopes of showing that the cash-bail system isn’t necessary — and, in fact, has been a driver of racial and economic inequalities for generations.

“It’s a two-tier system of justice: one for the rich, and one for everyone else,” said Robin Steinberg, the fund’s CEO.

Representatives for CrowdJustice and Funded Justice did not respond to multiple requests for comment.

Alone in the Crowd

The limits of direct crowdfunding platforms remain clear, at least for now.

It might feel good — and do some real good — to help an individual with a powerful story, but it doesn’t change the system that limits access to justice to the people who have the resources to run a strategic online campaign to bring attention to their causes, North said.

“It levels the playing field for the very lucky or for the strategic players in this space,” she said. “Not necessarily the worthy.”

Roger Stone, an adviser to President Donald Trump’s 2016 campaign and self-proclaimed Republican “dirty trickster” charged in late January with obstructing justice and lying to Congress, is the beneficiary of a successful crowdraising campaign on the popular platform GoFundMe.com.

The fund is set up by Michael Caputo — another Trump adviser and longtime GOP operative who raised more than $358,000 on the same platform for his own legal defense.

As of Feb. 25, Stone’s fund has raised $92,650 of its $100,000 goal.

Nichols, the mother of the teen accused of murder, said that she has already put $25,000 of her own money into her son’s defense. If the case goes to trial, it’ll cost her at least another $25,000, she said.

A Las Vegas judge has set bail for Sakai French, who is charged with murder, at $500,000, and it would cost 15 percent — or $75,000 — to get him out of an adult jail, according to his mother, Deborah Nichols.

She and her three children, all adults, consolidated households in order to save up money for Sakai’s legal fees, she said.

On top of that, a Las Vegas judge set Sakai’s bail at $500,000, and it would cost Nichols 15 percent — or $75,000 — to get him out of an adult jail. Nichols said she worries for him in jail; her son was always a homebody who refused to spend the night at the homes of friends or relatives.

Some nonprofits and bail organizations turned her away because Sakai’s bail was set so high, she said. Others, like the Bail Project, said it couldn’t help her because it doesn’t currently have an office in Las Vegas.

Nichols, meanwhile, said that crowdfunding has not leveled the playing field for her or connected her with generous, sympathetic souls.

It has only shown her how alone she is.

“I remember nights posting, retweeting — my daughter’s friends all retweeting this fundraiser over and over,” she said. “And it’s like, wow, do people not see it?”

--Editing by Pamela Wilkinson.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.