Law, Integrity and Prestige Whoring

When Justin Peter took over the “crime beat” at Slate, there was both  trepidation and hilarity among criminal defense lawyers. His subjects were trivial and salacious, and the content was ignorant. It wasn’t just that he was ill-equipped to write about the law, but that he stood on a big soapbox and spewed dangerous gibberish. There was too much erroneous information being spread already, and the last thing needed was Slate making people stupider.

The shock of seeing Justin Peters name in the first sentence of George Washington Lawprof Orin Kerr’s post at  Volokh Conspiracy was jarring.  Whether or not one agrees with Orin on any particular topic, no one would deny that he’s a serious person with regard to law, and computer crime in particular. And here he was, touting some no-account slacker on the most serious and controversial (and grossly over-written) topic in computer crime in years.

Orin tipped his hat to Howard Bashman’s  How Appealing for the source. Bashman is a long-standing aggregator of law-related articles, having been firmly established well before SJ arrives in the blawgosphere.  The content reflected there comes from main stream media, major internet media and a handful of blogs that have impressed Bashman as being sufficiently prestigious to be worthy of his notice. It hasn’t changed much in the past five years that I’ve watched, and I can recall only one time SJ was ever mentioned there.  I don’t believe any of the other criminal law blawgs have ever been mentioned. (I have  since been correct by  Gideon that Bashman linked to him recently, and did so in the past, as Gid doesn’t want anyone to think he isn’t sufficiently prestigious.)

The Justin Peters article is very long and detailed.  Surprisingly, it’s quite well written, suggesting that he’s a far better writer (or had a far better editor) than was reflected in his Slate Crime Blog work. Whether his content is accurate about Aaron Swartz’s life can’t be said, as I lack knowledge to opine whether he’s captured the real story, myth or something else. But he repeats, early in the story, the accurate  but irrelevant bit about the statutory max, waiting until the end of the article to mention that it bore no connection to the plea discussions.

From the aspects of the story about which I have some basis to opine, Peters didn’t get it. Much of what he wrote about MIT was wrong, from misunderstanding what “hacker” means there to the open culture. But it’s when he gets to the prosecution that things go seriously awry. Well written, but wrong.

After calling it a “very strong piece,” Orin notes what he sees as worthy of a “small criticism”:

In my view, Peters errs a bit in his reporting about the strength of the government’s case. For example, Peters doesn’t question the optimism expressed by Swartz’s lawyer that he had made strong legal arguments in his motions to suppress. From the motions I have seen, and the arguments referenced in the article, he hadn’t. Also, Peters’ conclusion that Swartz’s expert Alex Stamos had “a strong counter-argument” to the government’s case is overly generous in light of the relevant legal standard (which neither Peters nor Stamos explores in any detail).

Despite this, Orin calls the post “excellent.” Perhaps as a lifestyle piece, but not as an article about a prosecution that resulted in a suicide.

If you can spend the time it takes to get to the end of the piece, there are some huge red flags that are neither recognized nor explained.  Why, in this particular case, did this boy millionaire spend his fortune on his defense, to the point that he was forced to call friends to beg for financial support of his defense?  Why was he on his third attorney at the time of his death? Why did he ultimately pick a lawyer from San Francisco to defend him?  He was pals with Harvard lawprof Larry Lessig, but couldn’t find talent closer to home? He was beloved by so many, but couldn’t find anyone to handle a relatively small case for less than a king’s fortune? 

Most disturbingly, Peters writes:

On Jan. 9, 2013, Peters called Heymann to discuss the upcoming evidentiary hearing. “Toward the end of it,” Peters recalls, “I said ‘Can’t we find some way to make this case go away?’ I remember saying to them, ‘It’s just not right for this case to ruin Aaron’s life.’ ” The prosecutor responded with a familiar refrain: the government would never agree to a deal that didn’t include jail time, and if Swartz was convicted at trial, they would seek a guidelines sentence in the range of seven years. As usual, the defense and the prosecution could reach no common ground. The case—scheduled to go to trial on April 1, barring further delays—would continue.

“As usual”? Plea agreements are the usual. Peters gets it completely backwards. I’m surprised Orin didn’t pick this up. The offer on the table was a few months. Elliot Peters (Swartz’s third lawyer and presumably no relation to Justin Peters, the guy who writes at Slate) was, according to the article, increasingly optimistic about his chances for suppression.

As for the prosecutor, Steve Heymann’s, response, it’s of the sort that defense lawyers shake off daily. This is the game of negotiation, trying to make disagreement more costly than agreement. Both sides play the game. Yet nowhere is there any mention of the fact that the government can seek anything they want, but judges sentence. So what if Heymann will seek seven years (even if it’s true)? And Peters will seek probation. I have to believe that Orin knows this. I refuse to believe that he doesn’t get how these things happen.

While the Slate post is long and detailed, and definitely far better written than anything I’ve read of Justin Peters before, it’s unclear that it does anything more than perpetuate public ignorance and feed the myths surrounding this case and public’s lack of understanding of how criminal law happens.  That it comes from Slate, and more specifically from the hand of Justin Peters, doesn’t surprise me. That a law professor of some renown would call it excellent, or that a respected, if stiff, aggregator would find this more worthy of inclusion than post from credible sources, makes me sad.

The problem, from my seat, is prestige whoring, and it’s a problem that has become  more evident with this case and its aftermath.  There are the big guys on the internet and the small guys. For those of you unaware, the practical blawgosphere, meaning the part of the blogosphere that deals with law, is a tiny, inconsequential spot in an incredibly huge space.

There are a handful of “bigger” blogs that get the occasional notice from those outside the law space, such as Volokh Conspiracy and SCOTUSBlog, when their particular expertise is useful, and my sense is they adore the occasional recognition, perhaps too much.  But the major sources of information, including Huffington Post, Gawker and, sadly, Slate, dwarf the blawgosphere by magnitudes. 

While there doesn’t appear to be much lawyers can do to compel the major players to give a damn and get their information right, as we reflect an inconsequential perspective of accuracy when they’re only concerned with story and eyeballs, it’s problematic when even those of us who are engaged in the blawgosphere, fighting daily to illuminate rather than make people stupider and help sell advertising, are so blinded by the prestige of the big boys that we demure on accuracy, and with it, integrity, and call crap “excellent” in the hope of getting a crumb or a nod.  Are we willing to sell out that cheap?

32 comments on “Law, Integrity and Prestige Whoring

  1. Dr. Sigmund Droid

    Scott, without knowing you but in a tangentially murky virtual sense, I think I understand why you’re so cantankerous much of the time . . .

    Here’s the problem: you set your standards, and thus, your expectations, too darn high . . .

    Now don’t get me wrong, I like high standards – but high standards only lead to high expectations. And I used to set my standards really frickin’ high for both myself and others, which led to constant disappointment. Why?? Because although I have a lot of control on meeting the high standards I set for myself, and can change things about me when I don’t meet my own expectations, others continually disappointed me – my standards for, and thus, my expectations of them were obviously too bloody high!! Disappointment and despair were the norm for me back then; it was a foregone conclusion, given the flawed model I was using . . .

    So I solved that problem. My approach may be counter-intuitive to some, but today I set my standards and expectations of others so stinkin’ low, – lower than a snake’s belly in a wagon wheel rut, – that it is literally impossible to be disappointed by them. Everyone but me is deemed a hot mess and I’m OK with that now. And when others actually do more than waste oxygen, they exceed my expectations and I am very, very pleased!!! It was so simple and the answer was there all along – I just didn’t see it . . .

    The only person I reserve high standards and expectations for anymore is me. And although I do disappoint myself from time to time, it’s not nearly as often as I used to be disappointed by others . . .

  2. SHG

    As much as I anticipate the worst, I hope for the best. A rising tide lifts all boats.  If I say nothing, then I am as much at fault for my silence as are those who make people stupider. So yes, I’m a cantankerous old fool.

  3. Dr. Sigmund Droid

    Oh, don’t misunderstand me; I too must say my peace. But it is really my mindset that’s changed. Although I’ve always spoken up for my beliefs, I no longer expect or care if anyone is listening, or more remote still, that they might actually change, even a little, and certainly not a lot . . .

    As far as you being cantankerous?? Yes; old?? Maybe, it’s all a matter of perspective. I heard Johnny Carson once say that the definition of old is anybody 15 years older than you are and I’ve used this model ever since. It works quite well, IMO; fool?? Me thinks not . . . but I could be wrong, Mr. Wong . . .

  4. David Nieporent

    While the statement is obviously somewhat ambiguous, I thought he meant “As usual, the defense and the prosecution IN THIS CASE could reach no common ground.”

  5. SHG

    That’s certainly a possible interpretation as well.

    My interprtetation is based on the definitional aspect of the sentence: Until there is an agreement, there is no agreement by definition. Thus, if the sentence is meant to compare that final discussion with prior discussions in which no plea agreement was reached, it serves no purpose by definition. If the sentence is meant to compare it to other cases, it’s wrong.  But then, I could be reading more thought into the Justin Peters’ writing process than he gave it.

  6. Pro Se

    Your points are well made and all too familiar with anyone having experience in criminal law.

    To your comments I would add a question that seems to have gone unnoticed. Counsels for the government, and particularly Ms. Ortiz, have been raked over the coals in the blog-o-sphere as being mean and vile persons who set out to make Mr. Swartz an example for their personal, professional benefit.

    At the same time government counsels have been attacked, others who bear some responsibility here for their actions have been given a free pass. Here we have a young, impressionable, idealistic boy encouraged over the years in utopian ideals by various academics and other “let it all be free” individuals. Just my view, but the “Larry Lessigs” of the world are culpable in varying degrees for the tragedy that ensued.

  7. SHG

    I’ve  written before that singling out Carmen Ortiz as being uniquely evil is a mistake, and has served to move the discussion in the wrong direction.  I suspect (though can’t assert since I have no clue what Aaron Swartz thought when he made his decision to commit suicide) that if it was due to this case, there were many influences responsible. 

    As much as those who he felt persecuted him may have been wrong, so too were those who encouraged an unduly Utopian view or whatever perspective caused him to feel persecuted or that life was futile. Does that include Larry Lessig (or the Lessigs of the world)? I dunno. But decisions like suicide are usually the result of a great many influences and experiences, and can’t be reduced to a simple evil being or incident.

  8. CockleCove

    SHG: “Yet nowhere is there any mention of the fact that the government can seek anything they want, but judges sentence. So what if Heymann will seek seven years (even if it’s true)? And Peters will seek probation.”

    Yet nowhere in your own post is there any mention of the other sticking point, widely reported in, e.g., the Boston Globe (based on its interviews with Elliot Peters):
    that the US Attorney’s Office was adamant it would not agree to a misdemeanors-only plea disposition.

    Even if the judge were to agree with defense counsel that probation — not prison — is the appropriate sentence, Swartz would have been (had he agreed to the last-known plea proffer from the government), a convicted felon.

  9. SHG

    It wasn’t a sticking point. The government accuses. The defendant defends. If he wants to fight, he fights. He was charged with a felony, like tens of thousand of people every year, many of whom don’t deserve to be and some of whom are innocent.

    Do you care about the other 4000 or so felonies that arise from regulatory offenses, or only about this one and the rest can burn in hell while the one person you do care about should be immune from the system that all the others endure?  Except most of them don’t get six month offers. They get a felony and a decade. Or they fight.

    It is not that I am uncaring about Aaron Swartz at all. Indeed, quite the contrary. It’s that I’m sick to death of morons who think injustice never happened until it suddenly appeared on their personal radar affecting someone they cared about.  Suddenly, it’s important, because the tens of thousand of others mean nothing.

  10. Pro Se

    I parsed my words precisely for the reason you note…that nobody can fully understand what motivates persons such as Mr. Swartz to act as they do.

    My use of “Lessigs” was to note in a very generic sense that others to varying degrees may have served as “enablers” of an individual having utopian ideals and difficulty coping with life’s travails.

  11. CockleCove

    I guess I was too diplomatic/subtle; I was hoping my comment would some reflection on your part. You denounce others as “slackers”, take others to task for “perpetuat[ing]… [the] public’s lack of understanding of how criminal law happens.” But your OP itself failed to illuminate, foster understanding.

    Let me now add — for the benefit of those who have not yet read the Slate article — that the very next sentence after the quote you chose to highlight begins with
    “On Thursday, Jan. 10, the day after this latest failure to secure a plea deal….”

    So there is no good reason to think “Peters gets it completely backwards.”

  12. SHG

    If the point that you’re trying to communicate is that Peters didn’t get it backwards because the next sentence talks about ongoing unsuccessful plea negotiations, which as noted above is inherently the case because they would otherwise have resulted in a plea, and therefore Peters didn’t get it backwards but merely wrote ambiguously and poorly, that may well be the case.

    But if so, that’s the fault of the writer for being ambiguous, not the reader for reading what was written. More importantly, the lack of clarity is a very good reason to think that Peters meant exactly what he wrote.

    Is it absolutely clear to you? Fabulous. It wasn’t clear to me before. It’s not clear to me now. And apparently, aside from you and Nieporent (who unlike you, recognizes the ambiguity), there doesn’t appear to be any stampede to tell me I got it wrong, and notably neither the prosecutors nor defense lawyers who read SJ are troubled by this.

    That makes a grand total of you who is absolutely certain. Then again, I’m speculating on what you’re trying to convey since your comment is so bizarrely convoluted as to be gibberish.  As I explained to Nieporent, I may be wrong, but I offered my reasons for what I wrote. You have not convinced me otherwise.

    And as for my OP failing to illuminate, that has nothing to do with your agreeing with it. Unfortunately, writing what you, whoever you may be, think I should and illuminating aren’t the same things. I suspect you aren’t equipped for SJ and would do better to spend your time at a blog that confirms whatever you think. You’ll be much happier that way. Me too.

  13. CockleCove

    Speculate no longer:

    * You did not chide Peters in your OP for writing an ambiguous sentence. You derided him for “getting it all backwards” since “[p]lea agreements are the usual.”

    A denunciation — introduced by “Most disturbingly” — that rests on a highlighted quote of your choosing, a quote that conveniently omits the very next words which dispel whatever ambiguity may have been in a reader’s mind.

    * I think that’s sleazy.

  14. SHG

    Finally, some clarity. You are correct, I did not chide Peters for writing an ambiguous sentence, and I remain unpersuaded that he meant anything different than he wrote. As I responded to Neirporent, I can see his point, but I don’t agree. Because I have the capacity to understand a different perspective doesn’t mean I’ve changed my mind.

    You think it’s absolutely clear? That’s great. I don’t. You think the next sentence “dispels whatever ambiguity may have been in a reader’s mind?” I don’t think it changes anything. But you stamp your feet and insist you’re right? Who cares?  I see your argument. I’m unpersuaded and don’t agree. You think it’s conclusive. I don’t.

    And that makes you very angry that I won’t bend to your overwhelming intellectual will? Angry enough to call me sleazy? Got it. At least I now know what you’re trying to say, even if it took you three comments to bring your argument to the point of clarity..

  15. Catherine Fitzpatrick

    I was troubled by Orin’s endorsement of Peters as well, after he turned in two very detailed and thoughtful blogs on Swartz’s case that ruffled the feathers of many geeks who were edge-casing and hypothesizing to get their comrade off.

    But I wasn’t *that* surprised because in his second article, Orin had already, in my view, overlaid his own work on proposing reforms to CFAA over this case — and it certainly wasn’t a match. I confront him on that under his post, and I had the same questions for Berin Szoka, the lawyer and advocate for reform who spoke at Swartz’s DC memorial:

    [Ed. Note: Link deleted per rules.]

    Neither Orin or Berin grapple with the issue that they never mentioned Swartz specifically or generically in their 2011 and 2012 coalition letters about CFAA reform and they never confront the fact that “malicious hacking” is what this case really was about — and would be under even their reformed law.

    It seems to me that in their zeal to appear bipartisan and cooperative and make “progress,” these CATO-style Libertarians are making an appalling alliance with copyleftists who have zero respect for private property and the rule of law over the unruly Internet. And they are doing that in the name of opposing government interference and overreach as Libertarians do, but they are completely forgetting the private property rights and privacy rights that we all should have protected by law — with deterrence — on the Internet.

    Peters was intellectually dishonest, like Declan McCullough of CNET before him in not mentioning the 6 months plea bargain that indeed may have been gotten down to probation, given all the heavy hitters involved from Lessig and Mitch Kapor on down.

    But they stayed away from him because of the taint of crime; Swartz went “too far” according to Lessig and Kapor, who funded his organizations, was silent. There’s a disconnect here.

    As this is the first legal blog I’ve encountered that wasn’t blessing Swartz and demonizing the prosecutor, I would like to ask about precedents. Don’t those count?! Not a single person ever mentions that computer criminals in this country don’t go to jail for 50 years; not even 7 with very few exceptions. They go for 1-2 years at the most, or they get suspended sentences or the Aspberger’s defense.

  16. Steve

    An incoherent anonymous daytripping whack thinks SHG is sleazy because he won’t agree with him. You’ve rocked my world.

  17. SHG

    There are two levels to consider here: What really did (and should have) happened in Aaron Swartz’s case in the context of reality, and what what’s right/wrong with the criminal justice system overall. I do not think Swartz should have been prosecuted for reasons I’ve previously discussed, though the basis for the indictment was real under existing law.

    That said, computer “criminals,” a word I use in your sense as I have many problems with the CFAA, do not generally get particularly severe sentences in the scheme of federal sentencing. Then again, they shouldn’t. Then again, the cries about Swartz’s prosecution need to be contrasted with how the tens of thousand of other criminal defendants are treated, and the press has so fundamentally failed to provide context (and his friends have studiously refused to see it in context) as to reduce any discussion to an abstraction.

    So it depends.

  18. Dr. Sigmund Droid

    The issue might just be that Aaron Swartz’s supporters tend to see him as a Martin Luther King, Jr., of the Internet figure, who was merely expressing Dr. King’s values of “There are just laws and there are unjust laws. I would agree with St. Augustine that an unjust law is no law at all…” Thus, to them, Swartz was only fightin’ the good fight and ended up dead because of it . . .

    Contrasted with others like “drug lords”, “thieves”, “perverts”, and other “criminals” who are left to the capricious whims of the “system”; Aaron Swartz’s team can’t mentally get behind these folks too, because, – hey, let’s face it, – they are “real” criminals and Aaron was not – at least in their minds. And if that is their perspective, I totally get it, while still totally agreeing with you . . .

  19. SHG

    I think you’re right, and that’s the transition they need to make in order to gain perspective. Everyone else isn’t a “real” criminal except Swartz, and (this one will be really hard) even “real” criminals deserve to have their rights honored and be dealt with proportionately.

    The flip side is that if you aren’t on the “Aaron Swartz is special” side, you’re the enemy. They can’t grasp that being supportive of constitutional rights and fair treatment for everyone does not mean Aaron Swartz didn’t deserve far better than he got as well.

  20. Barry Kort

    I’ve read and reviewed pretty much all the news reports, commentaries, analyses, profiles, tributes, and lamentations that have been published online since Aaron Swartz hanged himself on January 11th.

    A lot of people — including those close to Aaron who knew him well — were variously shocked, surprised, angered, grieved, and perplexed by his decision to take his own life.

    By his own admission, Aaron Swartz was on a “crazy roller coaster” in the wake of his indictment by the US Attorney.

    One of the features of being on a “crazy roller coaster” is that one’s emotions rapidly oscillate between both familiar and unfamiliar extremes.

    At times, one has high hopes. The next moment, one has high anxiety that plunges into despair.

    Aaron was known for his mood swings. He could be enthused one day and lethargic the next.

    His life story reads like his own idiosyncratic version of a passion play. He could be passionate about a cause and then undertake a systematic campaign that calls for sustained effort and dispassionate problem-solving.

    If I had to guess what Aaron Swartz was thinking and feeling the day he took his life, my best guess is that he was feeling scapegoated, and perhaps thinking that he was hopelessly ensnared in a long-term, nightmare, no-win, dispiriting drama with the US Attorney.

    When one is ensnared in a lunatic scapegoat drama, there is likely to be a crucial phase where the protagonist feels forsaken. That’s the phase that is most likely to immediately precede a fatal moment of irreversible despair.

    Justice is supposed to be a dispassionate process. But in Aaron’s case it clearly was not. The prosecution has been characterized as over-zealous and vindictive. To an idealistic person on the receiving end of such relentless persecution, the whole system comes off as being arbitrary, capricious, and beyond redemption.

    There are reports that Carmen Ortiz has been shaken by the turn of events associated with Aaron’s suicide and its aftermath. Perhaps now she is also feeling scapegoated, too. That’s the odd thing about passion plays. The extreme emotions of the protagonist become unexpectedly transferred to the antagonist.

    In the end, I reckon all that’s left to feel is remorse.

  21. Barry Kort

    Scott, I was intrigued by this paragraph in your essay:

    Quote: Despite this [“small criticism”], Orin calls the post “excellent.” Perhaps as a lifestyle piece, but not as an article about a prosecution that resulted in a suicide.

    Scott, am I reading you correctly that you affirm the (otherwise controversial) view that Aaron’s suicide was a direct result of the prosecution?

    If so, I would be interested in hearing your elaboration of the elements of this prosecution that most materially led to the result of Aaron taking his own life in the time, place, and manner that he did, rather than taking his chances with the system.

  22. SHG

    Though I’m a bit reluctant to allow your comment, as it’s a cut and paste of your blog post about Swartz rather than a comment to what is written here, I’ve decided to let it slide because I have a soft spot for MIT.  That said, scientists tend to recognize the fallacy of drawing conclusions from one data point.

    Unlike you, I haven’t read “pretty much all” the writings on Aaron Swartz. Much of it was nonsens; assumptive, presumptive, simplistic and emotion-laden. Reading too much nonsense tends to skew one’s perspective. While the fascination with the case, and Swartz’s suicide, is understandable, it’s less of a curiosity to those of us who have spent a career dealing with the criminal justice system.  This isn’t a one-off case, even though it may seem that way using a single data point.  Aaron Swartz wasn’t the first defendant to feel persecuted, or to be persecuted.

    You write “[j]ustice is supposed to be a dispassionate process.” This is a false and naive statement. “Justice” is a rhetorical device, used to suggest to the unwary that the outcome serves a greater good. But “justice” means entirely different things to the various players. It has no objective meaning.

    More importantly, the process is not, and never was, meant to do “justice,” but to determine whether a crime (conduct which has been declared illegal by a legislative body) has occurred, and whether the defendant committed the crime. If so, then a sentence is imposed by a judge in accordance with the considerations set forth in 18 USC §3553. 

    While people talk about the process as being intended to “do justice,” that’s for public consumption, so that people can sleep well at night without worrying that a deeply flawed and imperfect process is doing harm to people in their name, and may do harm to them or someone they care about the next day. It’s a fairy tale we cling to because we don’t want to spend too much time and capital worrying about a system that doesn’t work very well and often punishes conduct that we don’t believe should be criminal, or punished people who may not have committed the conduct deemed criminal, or punished people too harshly.

    Welcome to the world of criminal law. It’s why some of us defend people accused of crimes. We don’t wallow in remorse, but fight to keep the system as honest as possible. Remorse is for people who are only concerned with one data point. Someone has to defend the thousands of others who aren’t scrutinized the way Aaron Swartz is.

  23. SHG

    No, you are not reading me correctly. I’ve written just the opposite, that I have no clue what drove Aaron Swartz to commit suicide, and would never presume to know what goes on in the mind of another person, particularly someone I don’t know.  The quote reflects what I read in the Peters article, where he presumes to know why Swartz committed suicide. Maybe he has mad skillz that allow him to read the minds of others. I do not.

  24. Barry Kort

    Scott, I lost faith in the System of Justice a long long time ago, partly on the grounds of empirical evidence, and partly on the grounds of analytical theory.

    As I see it, there are a number of systemic problems that impede our objective of crafting a peaceable society through the Rule of Law.

    The first problem is that we lack a unified consensus on what to criminalize, what to legalize, and what to regulate.

    The second problem is that enforcement, arrests, prosecutions, trials, and sentences are erratic at best and corrupt at worst. Many thoughtful people have serious misgivings about the functionality, fairness, and rationality of the criminal justice system.

    The third, and most insidious problem is that the Crime and Punishment model is inherently flawed at the conceptual level, and is mathematically incapable of achieving the objective of crafting a peaceable society, because the system’s main tool is the haphazard application of state-sponsored violence under the color of law.

    See, for example, “Punisment and Violence: Is the Criminal Law Based on One Huge Mistake?” by James Gilligan, Harvard University; published in the Journal of Social Research, Fall 2000.

    [Ed. Note: Link allowed despite rules.]

  25. SHG

    Your loss of faith is understandable, and your reasoning is somewhat sound. Here’s the problem: I quite agree that the system is deeply and fundamentally flawed. I share, somewhat, your sense that it’s incapable of delivering on its promise, though it can, and has, happened, though certainly haphazardly.

    Could it be less haphazard? Certainly, and it might even approach being fairly consistent, if those of us involved were better people, more dedicated, harder working, smarter, fairer, most consistent, more…well, more of all the qualities that would make it the best system that humans could produce, given the inconsistency and bias of our nature.

    That said, we have no alternative system that’s any better. The absence of a system is unthinkable. a return to trial by combat. We may hate it. We may work to make it better. We may complain about it bitterly. But we still deal with it. If you come up with a better system, I, for one, would certainly like to hear.

    In the meantime, unlike you who can note (with good cause) all the failings of the system and then walk away, someone has to stand up for the defendant and face down the government. Criminal defense lawyers don’t have the luxury of bemoaning the system and turning away. Someone has to fight on behalf of the defendant. That’s what we do. No matter how awful this system may be, there would be nothing and no one to stop the government from having its way if we gave up the fight.

    And so you know, it’s not a fun fight, but it’s what we do anyway.  For us and our clients, this isn’t theoretical. This is most assuredly real.  So while we may have no greater faith than you do, we still go to battle.

  26. Barry Kort

    It’s the absence of a better system that intrigues me, since I come from a culture where crafting the best possible system was our primary objective from the very beginning.

    Injustice is but one of ten big unsolved problems in our culture. The others are conflict, violence, oppression, corruption, poverty, ignorance, alienation, suffering, and terrorism.

    All ten of these hellish problems have something in common. They tend to reseed themselves, round-robin, from one instance to the next, in a never-ending cycle of recursion.

    Systemic problems call for a systems approach to problem-solving. That’s not going to happen until we elevate our problem-solving skills to near-genius levels.

    I would like to see President Obama convene a national problem-solving congress, staffed with the best and the brightest systems thinkers our society has to offer, to systematically address, analyze, and solve the interlinked systemic problems of conflict, violence, oppression, injustice, corruption, poverty, ignorance, alienation, suffering, and terrorism.

    Nothing short of that will restore my long lost faith in the system.

  27. SHG

    That’s a tall order in a country that’s fighting over whether intelligent design should displace evolution in high school science classes.

  28. Barry Kort

    Thank you for that clarification, Scott.

    I appreciate and applaud your ethic regarding the caution against forming a haphazard theory of mind regarding the psychological state of another person (especially a stranger) in these perplexing adversarial dramas.

  29. SHG

    Thanks, but I don’t deserve any applause. Like you, I find it disturbing that others lay claim to knowing the psychological state of another person, and their readers appear to believe them, or at least accept it. Just trying to keep it real.

  30. Daublin

    I don’t feel that Mr. 3000 drones and no court case yet is a good candidate to lead a commission on law and order. This particular question is going to have to be addressed by the profs, and I’m glad people like Bary Kort are thinking about it.

    Personally, though, I don’t feel our system is awful. It just suffers from a lack of light.

    Police, jails, and courts are fundamentally a poor way to deal with most issues. We should be glad that in our society, they are the minority approach, a back stop against anarchy. By far the common case is that people work out their issues individually.

    That the justice system is a minority part of our dispute resolutions means, though, that most people don’t have insight into how it works. Corruption festers in the dark.

  31. Don Carlson

    ” Someone has to fight on behalf of the defendant. That’s what we do. “

    Great words, Scott. Gamso agrees: (from 11/27/09)

    ” That IS the higher purpose. To stand beside the reviled. To say here I am. You only get to him through me.”

    Thanks to you both.

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