The Strawman Defense

Over at Nancy Grace’s favorite blog, Crime & Consequences, my old pal Bill Otis is busy inventing the “future of law” defenses for us.  While it’s very thoughtful of Otis to put in so much time and effort on our behalf, it’s like the judge interrupting cross to question the prosecution’s main witness; if you’ve going to do it, at least do a decent job of it.

In a post cutely entitled “Criminal Defense, The Bracket Game,” Otis writes:

No, I did not say, “Criminal Defense, the Racket Game.” That wouldn’t be very nice.

Nor, to be honest, would it be fair. The old fashioned criminal defense (“I didn’t do it”) has all but disappeared. It’s been displaced by, “OK, well, maybe I did do it, but you should let me off because I have ___ mental problem.”

Bet you didn’t know that the old-fashioned criminal defense (“I didn’t do it”) has all but disappeared? And here, you’ve been using it case after case, trial after trial, as has everyone else.  Who knew?  How much does it suck to find out that something everyone is using all the time has disappeared. Now don’t you feel silly?

Of course, the old-fashioned defense goes hand in hand with the new-fangled “and you can’t prove I did” defense, but that’s not what Otis is talking about either.  I’ll let him explain in his own calm, deliberate and thoughtful way:

You can put pretty much anything you want in the blank, because you can always hire a shrink to come up with something or other out of the Diagnostic and Statistical Manual. And if nothing there fits, just invent something. This will, in addition to enhancing the shrink’s fee from the defense lawyer, get him invited to some academic symposium, where, despite the odds that otherwise would be imposed by common sense, he can get taken seriously.

Invent something?  What a cool idea!  Like, oh, excited delirium, the favorite cause of death immediately following use of a Taser? Oh wait, that’s my issue, not Otis’, and I would hate to steal his thunder.

What’s he talking about? So he hates psychiatrists and defense lawyers who manufacture psychological defenses that don’t exist so that defendants are “let off the hook”?  Where did he come up with this epiphany? Was it at his job as an adjunct at Georgetown Law School?  Did he stumble into a little-known subreddit where only people with tin-foil hats are allowed to enter?

Apparently, someone takes this tripe sufficiently seriously to have created, wait for it, actual brackets!


Why it’s Gawker! Hamilton Nolan is running the privilege tournament:

Privilege: so sweet to have. But even sweeter to not have. Privilege has its benefits, but the lack of privilege confers that sweet, sweet moral superiority. With that in mind, we have decided to determine who, exactly, has the least privilege of all.

The problem for Otis is that it has absolutely zero to do with either his thesis, that the old-fashioned criminal defense has disappeared, or that claims of suffering for lack of privilege has become a defense, whether of choice or otherwise.  In other words, Otis adopts Nolan’s rather disingenuous privilege post for his own purposes, utterly without basis and contrary to Nolan’s smarmy goal of ridiculing the fact that not everybody gets to enjoy happy, well-to-do, white boy college graduate life.

In a comment to a post about not having a duty to fight with every person in the bar about their ignorance of the legal system, Jeff Gamso makes the point that stupid stuff floated “out there” by voices that some people inexplicably believe create dangerous misconceptions about the criminal justice system:

But criminal law and procedure in general terms (I’m assuming the things that were driving her nuts weren’t specific stuff like whether the level at which the mandatory minimum for possession of cocaine in the federal system changes from 5 to 10 years) aren’t like a belief in unicorns or a misunderstanding about “SU carbs” (whatever they are, and should I eat more or fewer of them).  Nancy Grace isn’t dangerous because she spouts outrageous stuff.  She’s dangerous because people believe it.

Is this what Otis is trying to do?  Is he taking something so outlandish and ridiculous, so utterly untrue, and trying to pawn it off on those who are inclined to buy into his bias as if it’s real?  Is he dangerous because people believe it?

It’s hard to know who believes something as absurd as this, since people inclined to regularly read a blog like Crime & Consequences are already of the view that jaywalking deserves the death penalty and every criminal skates on some technicality because of their lying, sleazy criminal defense lawyers manipulating overworked hanging judges and fabricating claims of misconduct about the cops, who risk their lives daily for our protection.  Well, you know the spiel.

But to create a narrative so far-fetched as this takes a special talent, which is of the sort latched onto by commenters at PoliceOne and occasional members of Congress.  It requires its writer to ignore the basic premise of legal publication, not to make readers stupider.  And it’s just totally off-the-wall crazy, which could explain why Otis doesn’t make the tiniest effort to claim a source for his wild delusion.

And yet, as Jeff says, there is a possibility that someone, somewhere, will either read this or hear about it from someone who saw the cool bracket chart and believe that this is how the system works. For this reason, I write this post to make one thing absolutely clear: this is complete, utter nonsense, and simply false.  It has nothing to do with criminal defense, but is a strawman view of criminal defense that exists only in Bill Otis’ head.