'Varsity Blues' Judge Tells Attys To Prep For Trial Or Withdraw

By Brian Dowling
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Law360 (November 25, 2020, 1:47 PM EST) -- Lawyers for parents in the "Varsity Blues" college admissions case need to be ready for a trial with adequate precautions or else withdraw from the case, a federal judge in Massachusetts said Wednesday, responding sharply to four defendants' request for a seven-month delay amid the coronavirus pandemic.

While U.S. District Judge Nathaniel Gorton did not rule on the request by defendants Gamal Abdelaziz, John Wilson, Homayoun Zadeh and Robert Zangrillo to delay their trial from February to September 2021, he posed a series of blunt questions to counsel, including asking just how many people involved in the case are 65 years old or older.

"The answer seems to be: the judge and perhaps a few attorneys," Judge Gorton wrote. "The judge is prepared to conduct a jury trial in this case with appropriate precautions in place. The attorneys should be prepared to do likewise (or to consider withdrawing their appearances)."

Judge Gorton in August pushed off the four defendants' initial September 2020 trial start date until late February 2021, after prosecutors cited the difficulty of preparing for trial during the pandemic.

The same defendants, on Nov. 20, asked the court to again delay the trial until mid-September 2021, "which will be a firm and final trial date at a time by which all COVID-19 concerns will have subsided." They added that the government saw the request as "objectively reasonable" since it would amount to a one-year delay from the original start date. If mid-September didn't work for the court, the defendants asked for a June 2021 trial date.

Judge Gorton noted Wednesday that the defendants' counsel failed to support their prediction that the public health crisis will have waned by September.

"There is no certainty of that but there is a necessity to conduct a jury trial in this case as soon as it is reasonably practicable which this session of this court intends to do," the judge said. 

The judge also pushed back on the defendants' reasoning that it is too hard to safely prepare for trial given the required in-person preparation.

"Why cannot discovery and trial preparation be adequately accomplished via video conference?" the judge asked, ordering counsel's response to that question and others by Dec. 4. "In this electronic age certainly counsel have access to means of conducting full-blown interviews with documents provided electronically that would be as effective as in-person interviews (and without the incurrence of travel expenses)."

The judge said this virtual prep would "avoid most of the problems mentioned in the defendants' motion, except for the trial itself" and the required quarantine before trial.

Representatives for the U.S. Attorney's Office for the District of Massachusetts and for Abdelaziz declined to comment. Representatives for Zangrillo, Wilson and Zaheg were not immediately available for comment Wednesday.

In October, the other group of "Varsity Blues" parents facing trial — Marci Palatella, William McGlashan Jr., Elisabeth Kimmel, I-Hsin Chen, Gregory Colburn and Amy Colburn — convinced Judge Gorton to delay their trial from January 2021 until April 2021.

But accompanying that order were instructions for the parties to complete discovery by taking video depositions, reviewing documents and preparing witnesses remotely. Judge Gorton also warned that the continuance shouldn't be viewed as "an indefinite postponement of the trial" due to procedural difficulties.

The government is represented by Justin D. O'Connell, Karin M. Bell, Kristen A. Kearney, Leslie A. Wright, Stephen E. Frank, and Carol Head.

Gamal Abdelaziz is represented by Brian T. Kelly, Joshua C. Sharp and Lauren M. Maynard of Nixon Peabody LLP, as well as Robert Sheketoff.

Robert Zangrillo is represented by Martin G. Weinberg of Law Offices of Martin G. Weinberg PC and Matthew Schwartz of Boies Schiller Flexner LLP.

John Wilson is represented by Michael Kendall and Yakov Malkiel of White & Case LLP, as well as Andrew E. Tomback of McLaughlin & Stern LLP.

Homayoun Zadeh is represented by Tracy A. Miner and Megan A. Siddal.

The case is U.S. v. Colburn et al., case number 1:19-cr-10080, in the U.S. District Court for the District of Massachusetts.

--Editing by Alyssa Miller.

For a reprint of this article, please contact reprints@law360.com.

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