In the days following the Texas Court of Criminal Appeals’ ruling that the state online solicitation of a minor statute was unconstitutional, there was an outpouring of appreciation toward Mark Bennett for his excellent work on the case. Whether he deserved it or not, he was called a “hero” for what he accomplished.
One of the most dangerous things in law is the belief that somehow, some way, the law will “right” itself because some White Knight will ride in to save us. It’s the law’s version of the economics concept of the invisible hand, except what works in economics has no analogue in law. As Bennett explained:
Principles? Sure, I’ve got ‘em: freedom is better than safety; knowledge is better than ignorance; love is better than fear.1 If they’re trying to put you in a box and you have the coin to hire me, I’ll try to keep you out. If you don’t have the coin, I might do it anyway. I take a lot cases for free. But not because I have to. I take cases for free when doing so amuses me.
I didn’t take the case that got 33.021(b) tossed out for free.
He was no hero. He was a hired gun. Kid Shilleen. Paladin. Have law, will travel. The hero, if the word has any applicability at all, was the defendant, who chose to fight rather than give in, and was willing to put up the money to retain excellent counsel to fight. He fought at the trial court level. He fought at the first level appeal. He fought to the longest of long shots, the Texas Court of Criminal Appeals. And each fight cost him, yet he fought.
What distinguishes the defendant whose case Bennett won was his willingness to fight and his willingness to pay a great lawyer to fight for him. There were plenty of other potential litigants who could have made the same arguments and taken the case to the top. They didn’t. He did.
That’s unfair, you say? Others don’t have the money. Others have personal issues that change the risk/reward calculus. It’s unfair to point at all the defendants who didn’t fight and remind them that they had the chance?
It is unfair. The system is unfair. Life is unfair. Get over it. In a comment to Bennett, Brian Drake asks a good question:
Having applied for and received a number of grants in the academic world, I wonder if there are similar funding opportunities for these kinds of efforts. A cursory Google search did not reveal anything on point, but when I reflect on the breadth of foundations out there, and the depth of their collective pockets, I’m left thinking that this might be a fruitful avenue.
Are you aware of any organizations that provide the funding for external hired guns? If so, I would be honored to contribute to a grant-writing effort to secure the funds necessary to continue this fight.
It’s ironic that the academic perspective is so similar to that of the person on the street in this instance, that there ought to be some magical funding source that makes law happen. Perhaps if scholars stopped producing law review articles that no one will read at a relative value of $100,000 a pop, the money would be available for the defense of the poor.
But they’re not chipping their salaries in, and there is no foundation throwing money at the million poor defendants our nation produces, and even if there was, the defendant would be long imprisoned before the grant-writing effort came to fruition.
It’s unhelpful to encourage a belief that some White Knight out there will ride to your rescue. It takes the eye off the ball for those who need to stay focused the most. The issue is brought to a head in two instances, happening even as I type.
Carlos Miller of Photography Is Not A Crime will be going to Boston to answer for his crime of urging people to call the Boston Police Department’s public affairs director to redress a wrong. Lacking the wherewithal to retain counsel, he set up an Indiegogo fund. The amount he sought was, shall we say, underwhelming, but contributors have blown through it and are well on the way to funding a defense.
Carlos didn’t lay down and cry, but did what he had to do. Instead of waiting for a White Knight to save him, he sought out a hired gun, and worked the streets for the money to pay for it. But you’re not Carlos Miller, and if you set up the same fund, chances are nobody would show.
In the case of Lavabit, the now-defunct secure email provider that was crushed when the government took interest in its client, Edward Snowden, the United States government has just submitted its respondent’s brief on appeal. The TL;dr version is that, regardless of all the thoughtful and interesting issues raised by Marcia Hoffman on behalf of the Electronic Frontier Foundation, Lavabit’s owner, Ladar Levison, blew it all up front by failing to raise them in the court below. The heading to the government’s first point is soul-crushing:
BECAUSE LAVABIT FORFEITED NEARLY ALL THE ARGUMENTS IN ITS BRIEF BY FAILING TO RAISE THEM BELOW, THE STANDARD OF REVIEW IS PLAIN ERROR AT BEST
The article and the commenters fail to put themselves in Levinson’s shoes. You’re looking a guy who is far from rich who has no contacts with the kind of attorney that he needs.
If he did have the name of a competent firm, their first response would probably be: “Write us a retainer check for $50,000 and we’ll get right on it.”
I think this is what’s called a no-win situation.
See the difference in approach between Carlos Miller and Ladar Levison? See the numbers? Yet there was no arguing the point with the geeks, who were absolutely certain they knew more about law than lawyers.
And why is it that his assumptions were flawed?
Why is it that he (and his small business attorney) didn’t find “a number of fairly well-known and well-regarded lawyers who are easily findable”?
Clearly they are not as “easily findable” as all that.
You seem to be blaming Mr. Levinson for not being a savvy legal customer. You haven’t convinced me. Mr. Levinson knew his business was running an internet service and by all accounts did it well. It was the legal profession’s business to help him find the right professionals to defend him, and it failed.
The fault is ours, members of the legal profession, for not riding up to his door step on our steed to save him from evil. And what makes this even more of a painful story is that the EFF did, in fact, ride in as a White Knight, albeit after the damage was done, because of the significance of the case and issues at stake.
Are the issues raised by Carlos unworthy of the White Knight’s attention? Were the issues in Bennett’s case, resulting in a law being tossed, trivial? The choice is unfair, but it remains the choice. Either put up the fight, pay for the fight, make the fight, or whine about how unfair it is. Only one has a chance of prevailing.