Rebels Don’t Hide In The Shadows

A new blog appeared and captured the attention of Mike at Crime & Federalism.  Jeff Gamso is on board.  It’s called Lawyers on Strike with the subtitle, “because the system is broken.”  It says it’s “an experiment – an effort not just to inform, comment or discuss but to act.”

The concept is set forth in its opening manifesto:

This one will attack the problem at its root:  judges.  Judges favor the government in criminal cases.  They favor insurance companies and banks – and the government again – in civil cases.  Put simply, they favor the more powerful litigants and their attorneys over the weaker litigants and their attorneys.  More simply yet, they are the ultimate apologists for the establishment and the status quo, precisely because their whole publicly perceived raison d’etre is the opposite.

So, what to do?  Personally, I’ve had enough complaining, especially when it comes from lawyers. We are players in the system; if it’s broken, it’s at least partly our fault.

I propose to field reports (anonymity protected) from criminal defense lawyers and other disfavored litigants’ attorneys from anywhere in the United States concerning outrageous judicial conduct – not the kind that makes it into the mainstream press, like personal or sexual misconduct, but the routine, everyday dishonest, biased decision making that hurts those attorneys and their clients, resulting in wrongful convictions or other forms of justice denied.

Then, based upon criteria that I may or may not divulge in the future, I will decide if any of those reports justify a boycott of the judge involved by other criminal defense and/or independent attorneys.

I’m not impressed.  Who is this person who will decide for others whether reports justify a boycott of a judge?  He calls himself “Atticus”. 

There is no pseudonym more painfully trite in criminal defense, as “Atticus” is the name commonly adopted by the self-righteous as the keeper of Justice. But the character, Atticus Finch, didn’t hide in the shadows.  He put his body between the enraged mob and his client, prepared to suffer for his beliefs.  Not this “Atticus,” who has set himself up as the arbiter of unworthy judges.  He proposes that others rely on his anonymous judgment, based on criteria that he “may or may not divulge,” to boycott judges.  Others should put themselves on the line, while he hides.

Mike likes the clarion call to action.

A few more blog posts ranting about the latest judicial opinion that gets the law wrong? Most people won’t even criticize a judge by name.

What would happen if people took radical action?

What would happen if people stopped paying their loans, as a giant Fuck You to Wall Street?

What would happen if lawyers refused to appear before prosecutors in robes?

If only one of us rebel, then we will lose everything.

If we all rebel, we will [win] everything.

Granted, our blog posts haven’t quite rocked the world, but those of us who have called out bad judges, called out bad decisions, shine as much light as we can muster on the problem.  Some do so from hiding, but some, like Mike, like me, use our own names.  To the extent a judge will be angered by what we say, we bear the consequences of our statement.  We don’t throw rocks from behind walls where no one can see us.

Gamso isn’t as ready as Mike to sign on.

And now there’s Lawyers on Strike.  A new blog, a new voice.  Urging more.

It’s a little difficult to see how it could work.  I don’t like Judge X so when my case is assigned to him I’ll refuse to litigate it?   I don’t know.

But I appreciate the chutzpah.  And the balls.  And maybe the blogger has an idea of how to do it.

I suspect Jeff is being more than a little kind by suggesting there is any chance it could work, I fail to see any chutzpah, any ball, involved in this endeavor.  None at all.  In fact, I see just the opposite, machismo wrapped in cowardice.  The internet is the greatest place ever invented to be tough as nails without bearing any risk at all.  Write something all he-man from behind a pseudonym, and people will think you brave and bold.  I call bullshit.

As for the idea itself, I’m unimpressed.  I suspect that the stories of judicial wrongs will primarily be the same ones that all bloggers get in their comments, and which I treat as spam.  Individuals complaining about how the system failed them, the judges hated them, they were denied their doooo-process.  Every losing defendant thinks the system is broken and corrupt.  Most are wrong.

Then there’s the concerted activity that Mike sees as the difference between the ineffectiveness of our individual voices and the revolution that could change everything.  Criminal defense lawyers are worse than feral cats, never agreeing about much of anything.  Some focus on being the most effective advocates possible for their clients.  Some cry and moan about the injustice in the world, eschewing competence and effectiveness in fits of self-indulgent emotionalism.  Most fall somewhere in between. 

They all see things differently, and rarely are they inclined to give up their beliefs to be part of the gang. Concerted activity has been tried, and failed, over and over again, even when the call for action came from a known and respected source.  It surely won’t happen because somebody who calls himself Atticus and hides in the shadows makes the call.

But even if it did, consider the efficacy of the concept.  Let’s assume that Atticus can somehow sway all lawyers to follow his lead, accept his choice of bad judge, and stand together.  If we, by concerted action, boycott a judge, the only person to suffer will be the defendant standing alone.  Our boycott won’t mean that cases magically disappear, or that judges are pulled off the bench because criminal defense lawyers won’t appear before them.  It means that we sacrifice defendants on the altar of our cause.

Do you think it’s worth it?  Terrific!  Then you serve the sentence on behalf of the human being you’re too happy to sacrifice.   What?  You don’t love it that much?  That’s what I thought.

Even if we could, by concerted action, have the impact of driving cases away from those we consider bad judges, the implications of doing so would be systemically disastrous.  If we can influence the bench this way, so too can the prosecution.  What would happen if the prosecution refuses to appear before judges who are, in their opinion, too favorable to the defense?  And get real about it, as the prosecution is invariably better capable of concerted action than the defense, as they hold the purse strings over their line.

I can well appreciate both Mike’s and Jeff’s desire to be more effective in creating positive change, and their openness to new ideas.  But shooting off half-cocked isn’t the solution, any more than encourage others with silly, ineffective ideas to announce that they’ve come up with the solution to all our problems.  It’s not easy to have a really good original idea.  Very few come along.  That’s not a reason to embrace the silly ones.

Will there ever be a revolution, an idea that changes everything?  I don’t know.  I tend to doubt it, but then that reflects only the limitations of my own ideas.  Maybe someone will come with something so ingenious, so effective, so viable, that it will bring about the change that Mike, Jeff and I want.  But I guarantee one thing: It won’t come from some anonymous “truth teller” cowering in the shadows while asking the rest of us to trust him and put our ass on the line.  Rebels don’t hide in the shadows.

9 comments on “Rebels Don’t Hide In The Shadows

  1. Carolyn Elefant

    I can’t speak for criminal cases because I haven’t handled them in over a decade nor do I follow them closely enough to opine intelligently. But I’ve had my share of first-impression victories in civil cases representing small companies or individual landowners against multi-million dollar companies or the government. Likewise, many times when I’ve lost cases it’s because frankly, in many of them, the law just wasn’t on my side.
    I know that there are many matters where judges are corrupt – and I have blogged about some of these cases. But there are also cases where lawyers wave the flag of judicial corruption before even making an effort to put forward a sound, well-reasoned and well-researched argument. Just as it’s much more fun to give up the practice of law and go around as a social media consultant, I suspect that it’s more fun for lawyers to gripe about the system rather than tearing their hair out night after night, parsing sentence after sentence of an opinion looking for a passage that might make a difference. I don’t mean to suggest even for second that the lawyer you mentioned like Mike and Jeff fall into that category – they most certainly do not. But I’m not so confident about some of the other folks out there.

  2. Brian Gryth

    Scott,
    I just started reading your blog at the behest of Kevin O’Keefe and Alli Gerkman. Best advice, I ever received in quite some time.

    Thank you for this post. This post, like your post on Animal Abuse registries, point out a fundamental flaw of people and especially people on the Interenet. The answers to questions, especially the simple answers, are not thought through and too often accepted with easy. This reminds me of the H. L. Mencken quote “to every complex problem there is an answer that is simple, clear, and wrong.”

    Cheers, Brian

  3. Eddie

    “They [Judges] favor insurance companies and banks – and the government again – in civil cases. “

    Clearly this person has never entered a courtroom in a civil case in the City of New York.

  4. Lee

    Copied from my comment to Gamso’s original, because you seem to get all the comment love. I do note that California prosecutors actually do this with success every few years.

    “As for the strike idea, its possible in California as both sides are allowed to disqualify one judge in a county without without really giving a reason. The DAs use it more effectively and have buried “defense friendly” judges in civil or probate when they dared disagree. Defense attorneys, as you well know, don’t take direction well and often don’t agree on much, so even with the worst judge in the county, there’s still enough masochists willing to bring their clients there for slaughter that we will never succeed in rendering a judge impotent.

    On the other hand, California also allows either side to remove a judge for cause when actual prejudice can be shown. If there was a systematic cataloging of a judge’s offenses and transgressions, we could at least cause a great stir if we were to begin routinely filing these kind of challenges against a judge as they require a hearing before a judge from another county on the claim of prejudice. Never going to happen, but, you know…one can hope.”

  5. Katie

    This is one of the strongest motivations for me entering the legal profession. I think each players position is equally valuable in beginning this “revolution”– However I’m not too sure it will happen with a big ‘upheaval’ from the way things are right now. I like where Mike stands, I like his position and what he’s doing- The system needs guys like him. But what about team players who believe in the same thing coming in from “the other side”? This is where I’d like to head– Prosecution. I think the one of the best ways to make changes is to be an example for those positions that need to change. I’ve seen a lot of unethical and unjust prosecutors– It makes me sick. We need prosecutors that are not going to abuse their power, that are going to do their job for the sake of true justice, and that are going to regain peoples faith & trust in our system instead of being afraid of it.

  6. Justinian Lane

    Every year, a major tort “reform” group puts out a list of the “best” judicial systems in the country. They develop this list by surveying corporate lawyers as to where they like to litigate. It’s biased and one-sided, but it gets lots of attention.

    Why not take that idea and run with it from the criminal side? Survey criminal defense lawyers in a given area, and have them rank individual judges on things like fairness, competence, knowledge of the law, efficiency, etc. Give each judge a rating.

    Make the surveys anonymous, but the results public. And call bad judges on the carpet by giving them a bad grade.

  7. Fascist Nation

    I suppose this represents a growing resentment–nay, appall–that defense lawyers experience when they realize it is not them against the prosecutor. It is them against the prosecutor AND the “impartial” judge aligned against their client. Well, the minority of defense lawyers actually willing to stand up to the state for their client.

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