Traitor To The Cause

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.”

Not being as measured as we would like is, well, a bit of Canadian hyperbole. The reaction on social media was exactly as anticipated batshit crazy extreme.

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.

28 thoughts on “Traitor To The Cause

  1. Billy Bob

    Tejas Bhatt? Never heard of him. But we don’t travel to New Haven much anymore. He could be new. They have a big turnover there. We lay heavy odds that he is NOT from Yale Law.

    The Times ran an article twelve years ago about how poorly trained the prosecutors were in CT. If the prosecutors are poorly trained–and they are–you just imagine how qualified the PDs are. Bottom of the class is where they’re recruited from, IOOpinion. They don’t make enough money to buy a decent suit or feed the parking meter.

    Lest anyone misunderestimate the gravitas of the situation there, one must understand that New Haven has lots of assistant public defenders. It’s not like he’s the only one.
    Having utilized the “services” of the public defenders office, let us just say they leave a lot to be desired. They do go thru the motions in an extremely hostile [court] environment where all defendants are deemed “guilty-as-charged”, irregardless of the facts, the circumstances, the law, case history, precedent or any other reasonable consideration. Did we mention Constituitional Rights? No rights without remedies. In the UnConstituition State, there are no remedies, inside or outside of prison. Is that

    Books have been written. Nobody reads them; nobody gives two sh!ts. So who is Bhatt, and why is he quoted here? Is he the latest Atticus Finch, or is he writing his own book?

    1. SHG Post author

      Don’t be hating on Tejas Bhatt. Lind called him, and he responded with sound views. It’s not like a PD is doing the media because he needs more clients, unlike others. And he’s a damn fine lawyer, also unlike others.

  2. Jay

    Anyone in America accused of a crime automatically belongs to a small minority, and one of the most hated and dehumanized as well. If you think Justice Thomas has ever considered the possibility that a weak Fourth Amendment might affect innocent people, you’re nuts.

    1. SHG Post author

      That’s exactly what I said to all those angry women about white male cis-hetero-normative gender studies major Jian Ghomeshi, and they told me I was wrong. It’s so weird.

      1. ShelbyC

        Ghomeshi’s white? Why do all the darker-skinned folks that SJW’s don’t like suddenly become white?

  3. JD

    I find there are three levels of crazy.


    Batshit crazy

    Dancing orange midgets who come out of the kitchen cabinets at midnight crazy.

    Social media reactions to complex issues tend to involve lots of dancing. Come to think of it, the same applies to simple issues too.

      1. David

        Since you love being politically correct…
        According to the organization Little People of America [not providing a link b/c rules], the word “midget” is objectionable because of its history of being applied to people being exhibited for entertainment. “Such terms as dwarf, little person, LP, and person of short stature are all acceptable, but most people would rather be referred to by their name than by a label.”

        1. Hal

          FWIW, I think the politically correct term is “vertically challenged”.

          Do you feel enlightened?

  4. Marvin

    Two observations:

    First, the best line in the story may be “Hashtag is not a legal principle.”

    Second, Thurgood Marshall may never have been primarily a criminal defense lawyer. But he had a lot of experience early in his career doing defendant-side criminal jury trials in one-horse southern towns where a first concern could be saving his clients’ lives from a death sentence and a backup concern was saving his clients from a lynching. (The NAACP sent its lawyers to such trials, because the local, white defense bar couldn’t be counted on to give a vigorous defense, especially in cases involving white victims.). His defense-side trial experience probably exceeded the meet-and-plead experience of much of the current defense bar. And he was indeed known to share those experiences with other members of the Court (as some of them remarked after his death).

    1. SHG Post author

      Thurgood Marshall was able to leap tall buildings in a single bound, too. Unlike criminal defense lawyers today, who pull the switch and execute their own clients. And nobody gives a fuck, Marvin, what you “observe” as the best line in the story. People can pick their own without your observation if they want to.

  5. DHMCarver

    On lawmakers and criminal defense lawyers – this is an oft-repeated story told by the Governor of the state where I live (yes, a former prosecutor):

    “She told the Journal she decided to become a prosecutor while an intern in law school, after she sat in on a criminal hearing of a man charged with killing his pregnant wife in front of the couple’s two children. ‘I remember walking out and ending up in the elevator with the defense attorney and asking him, ‘How is it that you sit next to this monster?’ Martinez recalled. ‘That was the day I said I could never sit next to somebody who did that.’” (from a newspaper profile, link not provided per blog rules).

    Another one of those curious places where the left and the right meet – that there are certain people who do not deserve a defense.

  6. John Barleycorn

    There is no vaccine for a supreme  vacuum.

    However, I triple dog dare Grassley to bring up this unforeseeable and surely regrettable oversight to the fine folks of
    Des Moines for their consideration.

    If the victums living within the interstate 35 and 80 crossroads beltway can’t solve this problem 52.75% of the millennials will end up in federal debtors prison.

    You are going to have to start taking your board to to the distilled fumes of progress if you want to hang ten on the drifting snowbanks of the prairie this November Chuck.

    It will be good for ethonal to just say it…

    The time has come for the prairie dogs of the bar to come out of their burrows and enjoy the sun.

      1. John Barleycorn

        You obviously are not tuning into cspan often enough to catch all the nuances of committee action and lack thereof.

        Granted a a coyote like Chuck is rarely foolish enough to allow himself or his committee to be placed in a position where a triple dog dare can be leveled preferring to gavel out when a simple dare or two is even a possibility.

        However, there is room for a cleaver playground operative to make a move and all but gaurentee a prairie dog of the bar gets a supreme spot in the next decade.

        Perhaps even sooner than that if Chuck is forced to make some fence line maneuvers during the daylight hours after the August polling numbers come in.

        If gets scrappy you never know where the tongues may go and there are plenty of poles inside the DC and Des Moines beltways.

        1. SHG Post author

          He’s no Jean Shepherd. But he does have access to youtube, which really doesn’t bode well for me.

          1. John Barleycorn

            For all you CDL’s out there no one can feel your pain.

            Hang your shingle proudly and don’t forget to take a picture of your next shingles outbreak.

            The time has come for last line of defense in the cavernous and collapsing corridors of justice to regroup and reclaim the pastures.

          2. Jonathan Edelstein

            I agree that it doesn’t bode well for me – very little does – but is it possible that the sentence you added to my comment was in fact intended as the capstone to yours?

            1. SHG Post author

              You ever have one of those days when you just do something inexplicably stupid? Yes, that was meant for my reply to you, and yet I blew it and somehow put it in your comment. I am sincerely sorry, and I thank you for correctly pointing out the error of my ways. I am a bonehead.

  7. Richard

    The lawmaker in question, Thomas Mulcair, also happens to be a lawyer. And apparently taught law (to non-law students only?).

    One might go as far as to suggest that he should have known better.

    1. SHG Post author

      There is no “lawmaker in question.” So, Mulcair was one of the Canadian politicians who condemned Henein for representing Ghomeshi is no big deal. There are plenty of lawyers, of all (or both, according to one’s belief system) genders, who refuse to separate thought from feeling. Everyone capable of breathing should know better, and perhaps they do. They just don’t care anymore, as they are part of a group of angry ideologues who are no longer constrained by reason, and support each other’s indulgence in rank emotion and absence of thought.

      Plenty of lawyers, politicians, elected officers, journalists and otherwise ordinary folks fall into this crowd. As long as they have each others support, emotion, self-indulgence and the support of their fellow travelers allows them to be as stupid as they wanna be.

      1. Billy Bob

        But not us at SJ here. Gawd, you get up early. Can’t wait to hit that keyboard and take some unsuspecting fool to the woodshed!

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