The lawyer defending Canadian radio host Jian Ghomeshi did a heck of a job. So why is she catching all sorts of shit for her success? Because she’s a she. A woman. A female. A traitor to her gender.
Marie Henein, the lawyer who successfully represented former CBC Radio host Jian Ghomeshi, is rejecting any accusations that she has betrayed women by taking on the high-profile sexual assault case, insisting that justice was served in the trial.
Is she ashamed of having done her job, and done it exceptionally well? Are you kidding?
“I’m thrilled with the result,” said Henein in an exclusive interview with CBC’s chief correspondent Peter Mansbridge on The National.
“Obviously I think it is the correct result. It was a principled result in a case where people were agitating, I think perhaps not being as measured as we would like.”
Much of that outrage was expressed through social media, and public figures including politicians from all levels of government expressed their thoughts. Many upset with the acquittal embedded #IBelieveSurvivors in their tweets.
“Hashtag I believe is not a legal principle, nor should it ever be,” said Henein.
That the passionately irrational pushed the #IBelieveSurvivors button really can’t surprise many. Plenty of people hate law that doesn’t produce the desired outcomes. But then, when politicians, whether because they believe or enjoy a good pandering opportunity, join in, it empowers the disaffected yet moronic to flex their muscle.
“On a personal level if somebody wants to express their support [to a complainant], that’s their choice,” she added. “When a politician weighs in, that’s a little more concerning to me because you’re a person who’s engaged and should be more knowledgeable about what you’re going on.”
After all, if lawmakers bolster the misguided view that law should be whatever makes you feel better, what chance is there to infuse reason into hysteria? But if there it’s wrong for lawmakers, who obviously ought to know better, at least their ignorance is limited to their reach. What if the same misguided view is promoted by the media, blind to the duty of the defense lawyer and atop a far bigger soapbox than any politician could possibly possess?
That’s what Dara Lind did at Vox, where she took a running leap from a good issue and dove head first into the rabbit hole.
It’s been a quarter-century since a former criminal defense lawyer sat on the Supreme Court.
Since then, crime has fallen by half. Incarceration has risen, then fallen (slightly) again. Americans are becoming more and more critical of the “tough-on-crime” mindset that defined the end of the 20th century, and more skeptical that police and prosecutors will always use their powers for good — in other words, they’re coming in line with how defense lawyers see the world.
Well, it may be a bit inaccurate to say there was a former criminal defense lawyer on the big bench 25 years ago. But then, that’s part of Lind’s problem, seeing Thurgood Marshall as a criminal defense lawyer. He was counsel to the NAACP, and certainly had a significant sensitivity to the concerns of the defense, but that’s not the same thing.
Lind’s post arose from President Obama’s nomination of Merrick Garland, a tactical choice designed to embarrass the Senate judiciary committee for refusing to give him a hearing. The giveback is that Garland sucks for the defense on issues of criminal law.
Garland is a former prosecutor with a tough-on-crime record. The Court already has two ex-prosecutors.
In the scheme of Supreme Court justice, Garland falls slightly to the right of Sam Alito. The reason for the choice of prosecutor background versus criminal defense background is pretty obvious: the former is squeaky clean, easily confirmed, easily digested by the public who can’t quite accept the notion that criminal defense is a necessary, indeed honorable, part of the system.
Federal judges tend to be people who “ticked all the political checkboxes on their career starting from when they were 15,” says Tejas Bhatt, assistant public defender for New Haven, Connecticut. Often one of those boxes is working as a prosecutor.
While Bhatt embodies the solemn duty of Gideon, he is unlikely to ever embody a potential federal judicial nominee. Because he’s represented all those dirty, nasty defendants that everybody loves to hate.
And this is where Lind goes off the rails.
They believe the politics of Supreme Court confirmations has limited all but a very narrow, very privileged slice of America to have a shot at a seat on the highest court in the land. And one of the groups who they fear are locked out is the people whose job it is to stand up for the rights of the marginalized — and those who are on the wrong side of well-intentioned laws. [Emphasis added.]
Criminal defense lawyers, whether private or public, don’t “stand up for the rights of the marginalized.” They defend the accused. They may be “marginalized,” as the word refers to minorities, just as the alleged victims of their crime may be “marginalized” as well. Or, they may be “privileged.” Doctors, lawyers and [indigenous native] chiefs get prosecuted as well as “marginalized” folks. We defend them all, and we defend them all regardless of whether they’re marginalized, their putative victims are marginalized, or anybody is marginalized.
The danger of a Supreme Court consisting of former prosecutors isn’t necessarily that they are, by definition, pro-prosecution. History shows that it doesn’t always play out the way simplistic assumptions would have it. But it does suggest that there is no one on the Court who has a working knowledge of the realities of criminal defense, which might be nice given what the Nine do for a living.
That matters. Like it or not, the justices are more concerned about constitutional overreach by law enforcement when they can imagine themselves, or people like them, as the targets.
This harkens to the teary-eyed social justice view of the world, that it’s all about some emotional connection between judge and litigant. Nonsense. Anyone so insipid that they can’t grasp the implications of issues before the Court if they don’t feel the pain has no business being there in the first place. Only a fool wants judges who can cry with defendants. We want judges who can provide rational, knowledgeable and persuasive opinions that protect their constitutional rights. The kind of opinions that garner a majority of the Court.
That it’s nearly inconceivable for a criminal defense lawyer to be nominated to the Supreme Court these days is, as Lind contends, an unacceptable gap in experience that deprives the Court of the knowledge and experience from the other side of the courtroom. And sometimes, as with Ghomeshi’s lawyer, Marie Henein, they’re hated by the social justice warriors as traitors to the cause. That’s the burden criminal defense lawyers have to bear for being excellent at their job.
Criminal defense lawyers bring the experience of defending the accused, whether they’re marginalized or not. Whether they know all the words to Kumbaya has nothing to do with it.