Tongue Holding, Blawgosphere Style
Last weekend a story lit up around the legal blogosphere about a troublemaker named Carlos Miller.By "troublemaker," Turk was being facetious, a term of endearment.
This is true. Every word a blawger puts on the internet is a potential disaster waiting to happen. Turk writes of the "what if" when it comes to a juror who disagrees with his opinion. Clearly, his client on trial doesn't care about Turk's right to express his opinion. Oh no. He cares about the verdict a jury will render in his case, and if that verdict is negatively impacted by something Turk does in his spare time, he won't be a jolly fellow.
But I held my tongue, or in the case, backed slowly away from the keyboard. The story broke January 21st, and I was picking a jury in a medical malpractice case the next day in an upstate (read: conservative) county.
While it wouldn’t take me long to type up a post on the subject, what would happen if a juror (impermissibly) Googled me and saw the post? What if I had a different opinion about troublemaker Carlos Miller than the juror?
Ouch. So us criminal defense guys have it easy? We can be "a bit more colorful"? Well, isn't it great to be us.
I have the burden of proof at trial and need five out of six jurors to agree with my presentation to return a favorable verdict. And that post would be the very first thing that a juror would see.
The criminal defense bar gets the opportunity to be, well, a bit more colorful if they want. They only need one juror on their side, giving them more leeway.
I hate to be the one to tell this to Turk, but his rationalization isn't quite on target. It's not just about getting one juror to get a mistrial. First, a mistrial isn't a win, but just the prelude to retrial. If we want to win, it takes 12 jurors, not the measly five that he needs. But that isn't even the issue.
The players in our system all have the potential to cause criminal defendants much grief. From the cops, who can lie and manufacture evidence, to the prosecutors whose discretion can be colored by how much they hate us or want to make us look like chumps, to the judges who decide critical motions or, if it comes to it, the length of time our clients are guests of the government, we have far more people, and far more powerful people, to deal with than any civil lawyer can imagine. And they're all easily angered. And they tend to get miffed pretty easily. And they tend to take it out on us in ways we can never prove.
So we can be more "colorful" without risk, eh? Not quite.
I wrote about Carlos' latest arrest, and did so without reservation. Granted, things like arrest are clearly within my wheelhouse, and I should write about it. So did others, some of my ilk and some not. But this had nothing to do with it being risk-free.
Here's the 411: Blawgers who take a stand on anything real open themselves up to retaliation. We make ourselves targets. We take risks. Huge risks. And sometimes, we get spanked hard for what we do.
More than once, while I'm sitting on a hard bench waiting for my case to be called, will a clerk come from behind and whisper in my ear that the judge didn't appreciate what I wrote last week. More than once has a prosecutor greeted me with a sly smile and "I saw your blog the other day," just to let me know that he can't wait to take me down a few pegs.
Readers have no clue the risk blawgers take with every post.
Not all "blawgers," mind you. I see the criminal defense lawyers on twitter whose bio says they're blawgers, though I've never read them. I sometimes stop by to see what they write, and cringe at the insipid blurb from the paper with nothing remotely approaching thought or insight. Just words murdered without purpose, exactly as their marketer told them to do. They take no risk. They take no stand. They serve no purpose.
But those of us who try to write something that provokes thought and challenges the powerful take risks every day. Sometimes I think I'm nuts, putting things online that will almost certainly anger someone who I will someday have to stand before. I ask myself, "what am I thinking, taking the risk of stating an opinion publicly that will come back to bite me in the ass?"
You, dear readers, couldn't care less about the risk I take. You just want to see how controversial I can be, whether I skewer your enemy in a way that pleases or amuses you.
While I can certainly understand and appreciate Turk's concerns, and the choices he makes in order to serve his client, don't tell me that criminal defense lawyers have it easy and are free to write whatever they please without consequences.
Criminal defense blawgers make choices too, and the ones who stand for something have made the decision to do what they can to make our system better for everyone, even if we face personal consequences for what we write. Kris Kristofferson wrote "freedom is just another word for nothing left to lose." We've got everything to lose, yet we stand up anyway. And we do it for freedom.