My buddy Turk explained himself.
Last weekend a story lit up around the legal blogosphere about a troublemaker named Carlos Miller.By “troublemaker,” Turk was being facetious, a term of endearment.
This is true. Every word a blawger puts on the internet is a potential disaster waiting to happen. Turk writes of the “what if” when it comes to a juror who disagrees with his opinion. Clearly, his client on trial doesn’t care about Turk’s right to express his opinion. Oh no. He cares about the verdict a jury will render in his case, and if that verdict is negatively impacted by something Turk does in his spare time, he won’t be a jolly fellow.But I held my tongue, or in the case, backed slowly away from the keyboard. The story broke January 21st, and I was picking a jury in a medical malpractice case the next day in an upstate (read: conservative) county.
While it wouldn’t take me long to type up a post on the subject, what would happen if a juror (impermissibly) Googled me and saw the post? What if I had a different opinion about troublemaker Carlos Miller than the juror?
Ouch. So us criminal defense guys have it easy? We can be “a bit more colorful”? Well, isn’t it great to be us.I have the burden of proof at trial and need five out of six jurors to agree with my presentation to return a favorable verdict. And that post would be the very first thing that a juror would see.
The criminal defense bar gets the opportunity to be, well, a bit more colorful if they want. They only need one juror on their side, giving them more leeway.
I hate to be the one to tell this to Turk, but his rationalization isn’t quite on target. It’s not just about getting one juror to get a mistrial. First, a mistrial isn’t a win, but just the prelude to retrial. If we want to win, it takes 12 jurors, not the measly five that he needs. But that isn’t even the issue.
The players in our system all have the potential to cause criminal defendants much grief. From the cops, who can lie and manufacture evidence, to the prosecutors whose discretion can be colored by how much they hate us or want to make us look like chumps, to the judges who decide critical motions or, if it comes to it, the length of time our clients are guests of the government, we have far more people, and far more powerful people, to deal with than any civil lawyer can imagine. And they’re all easily angered. And they tend to get miffed pretty easily. And they tend to take it out on us in ways we can never prove.
So we can be more “colorful” without risk, eh? Not quite.
I wrote about Carlos’ latest arrest, and did so without reservation. Granted, things like arrest are clearly within my wheelhouse, and I should write about it. So did others, some of my ilk and some not. But this had nothing to do with it being risk-free.
Here’s the 411: Blawgers who take a stand on anything real open themselves up to retaliation. We make ourselves targets. We take risks. Huge risks. And sometimes, we get spanked hard for what we do.
More than once, while I’m sitting on a hard bench waiting for my case to be called, will a clerk come from behind and whisper in my ear that the judge didn’t appreciate what I wrote last week. More than once has a prosecutor greeted me with a sly smile and “I saw your blog the other day,” just to let me know that he can’t wait to take me down a few pegs.
Readers have no clue the risk blawgers take with every post.
Not all “blawgers,” mind you. I see the criminal defense lawyers on twitter whose bio says they’re blawgers, though I’ve never read them. I sometimes stop by to see what they write, and cringe at the insipid blurb from the paper with nothing remotely approaching thought or insight. Just words murdered without purpose, exactly as their marketer told them to do. They take no risk. They take no stand. They serve no purpose.
But those of us who try to write something that provokes thought and challenges the powerful take risks every day. Sometimes I think I’m nuts, putting things online that will almost certainly anger someone who I will someday have to stand before. I ask myself, “what am I thinking, taking the risk of stating an opinion publicly that will come back to bite me in the ass?”
You, dear readers, couldn’t care less about the risk I take. You just want to see how controversial I can be, whether I skewer your enemy in a way that pleases or amuses you.
While I can certainly understand and appreciate Turk’s concerns, and the choices he makes in order to serve his client, don’t tell me that criminal defense lawyers have it easy and are free to write whatever they please without consequences.
Criminal defense blawgers make choices too, and the ones who stand for something have made the decision to do what they can to make our system better for everyone, even if we face personal consequences for what we write. Kris Kristofferson wrote “freedom is just another word for nothing left to lose.” We’ve got everything to lose, yet we stand up anyway. And we do it for freedom.
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The difference is that he has a real practice with real clients in front of real judges.
True. All the criminal law blawgers sit in bed and eat bon bons all day.
Don’t know about others, but we all know you do.
If you say so.
A two-fer! A douche comment from a pussy coward. Sweet. Probably some punk PI lawyer trying to throw spitballs from underneath a rock at a grownup.
Don’t go there. This isn’t about PI lawyers being less willing to stand for something, but that CDLs not being able to speak freely without risk.
As for the Derp, who cares. Just more pointless but amusing nonsense.
But your blog is all about the risks, so naturally, some asshole immediately comes along to prove your point. That’s okay with you?
People I don’t know tell me all about myself all the time. What I think, what I do, what I’m wearing, what my wife is wearing, whatever. For years, people have accused me of spending all my time doing SJ because they can’t believe anyone could do so otherwise. So should I stop writing because some incompetent moron thinks it’s not possible for me to do it?
The other day, Mark Bennett got trolled on his Peter Barone post by someone using the name Jennifer Davis, who apparently is the good doctor. He/she informed Bennett:
It’s absurd. You can’t take this stuff seriously. Of the mulitude of risks taken by blawging, comments like this are the least of our concerns. Most people realize that these are just trolls, and laugh at them as I do.
That’s not true.
Scott eats Ho Hos.
I trust you mean that in the baked goods sense.
.
And to your detractors, who question your copious yet meaningful blawg output in relation to your ability to earn a living practicing criminal law, I would say this: while it is true that given an infinite number of monkeys and an infinite amount of time, even the monkeys will eventually recreate the works of Shakespeare, it doesn’t mean the detractors aren’t monkeys and you aren’t Shakespeare . . .
In fact, such crass speculation on their part would tend to incriminate them as being monkeys, IMO . . .
.
So…since you bring it up…What is Dr. SJ wearing?
That’s Professor, Dr. SJ to you.
How dare you degrade Professor, Dr. SJ’s credentials like that. I will be certain to correct your insolence.
“You, dear readers, couldn’t care less about the risk I take.”
Not true for me. I could care less. A great deal less.
Thank you.
You’re welcome, my friend.
Et tu, Brute? Not a single serious comment to this post, other than KC’s expression of caring. I have failed.
So us criminal defense guys have it easy?
No, not “easy.” But I suspect a bit more leeway since the burden of proof lies elsewhere. I see a different shade of gray, that’s all. (Though, since I don’t do crim law, I accept that I may be far out to lunch on the theory.)
Either way, anyone who writes, and has clients, has to constantly evaluate and re-evaluate to make sure those clients aren’t impacted by our little hobby.
Ironically, those who write self-promotional claptrap and call it a blog are, in my opinion, most likely to face juror backlash if one should do some impermissible snooping during trial.
The grass is always greener. Since you focus on your own issues, yours seem more important than others, while others seem easier. It’s a common mistake. Enjoy your lunch out.
Since you focus on your own issues, yours seem more important than others, while others seem easier.
Guilty as charged.
Now if you hadn’t hung CDLs out to dry to make your point, well…
Or maybe if you PI guys just acknowledged that we are tougher, more macho, more fearless, taller and better looking…
Or maybe if you PI guys just acknowledged that we are tougher, more macho, more fearless, taller and better looking…
And get paid in advance (hopefully). Even if you lose.
Anything else would be unethical. You wouldn’t want us to be unethical, would you?