Remember that mother who came into your office to explain to you that her son was denied due process. She was, if nothing else, impassioned, explaining all the reasons why her son should walk. It was deeply moving. And legally worthless. Had you brought the mother’s argument before the judge, whether in toto or selectively, you stood a good chance of a tongue-lashing for wasting the court’s time or being laughed out of the room.
So let’s give that crap a name, wrap it up in social justice rhetoric, and make it into a thing. That’s what David Bornstein does in the New York Times Opinionator column, where he pushes the new concept of “participatory defense,” with special praise for the Cobarrubias Project. Never heard of it?
The “what is participatory defense” section of their website begins with an anecdote, already a dead giveaway that it’s conceptually vapid and is grounded in an appeal to emotion:
If tradition holds, Tony’s mom will continue attending the meetings, and assist other families who find themselves in the position she once did. She will share with them what she learned here from others — how to partner with or push the public defender, how to dissect police reports and court transcripts, and how to build a sustained community presence in the courtroom to let judges and prosecutors know the person facing charges is not alone.
We call the approach “participatory defense” – a community organizing model for people facing charges, their families, and their communities to impact the outcome of cases and transform the landscape of power in the court system.
Don’t bother with law school. Who cares about experience or knowledge, as gained from a thousand defenses. In the eyes of the community, this is either wasted time or co-optation to the machine. Nope, sit though one case and you too can then “dissect police reports and court transcripts” and “partner and push” your public defender. What could possibly go wrong?
There isn’t a criminal defense lawyer who would not appreciate the defendant and his family lending a hand. Indeed, there are things they alone are capable of doing, or tasks that they can accomplish more effectively than we can. But these are few, and must be done in accordance with law. No, you can’t threaten to kill witnesses if they don’t agree to testify that the defendant is innocent. Yes, it would be very effective. No, it’s not lawful.
It’s not that this concept isn’t offered to address a very real problem. There is no question that indigent defense lacks the funds to give every defendant the legal time and backup that would provide him with an optimal defense. But pushing a public defender? The more time he spends on your kid means he has less time to spend on someone else’s kid. That may work great for you, but you burned someone else in the process. Is that what you were going for?
But the core of participatory defense seems to be grounded in community organizing. What that means is never actually said. Protests? Putting warm bodies onto courtroom benches to let the judge and prosecutor know that someone is watching them, someone cares about this defendant?
Here’s how the head of the project explains it.
Lots of words that say nothing. Meaningless verbiage of “new and exciting” what? Most notable is that there are “no lawyers here,” because who needs law?
What is worthy of note is the perception that the criminal justice system, in the hands of lawyers, has failed communities of color and poverty. This is true, and shouldn’t be particularly controversial. It’s why otherwise inexplicable disparities exist in the criminal justice system and, painful as this may be to consider, it reflects an ineffectiveness on the part of criminal defense, and particularly indigent defense, to fulfill its mission.
But the solution isn’t to take it out of the hands of the competent and put it into the hands of the ignorant but passionate. If ever there was demonstrable evidence of this happening, it’s that a “young sociologist, Alice Goffman,” was given a TED Talk (not one of those second string TEDx talks, but the real McCoy). If you can push through the whiny quiver in her voice, the willful blindness of one-sided ignorance shines though [TRIGGER WARNING: This video may cause neural synapses to misfire, producing a violent reaction]:
Bornstein describes Goffman as “passionate,” and that’s an understatement. Rarely can one see such a naked appeal to emotion, unfettered by knowledge, than here. But just because someone gave you a TED talk doesn’t give you a right to make people stupider.
She goes long on problems, though somehow neglects to mention that less appealing side of the problem, like when one kid murders another kid to steal his sneakers, or because he tried to horn in on his drug spot. There are certainly wrongful arrests and convictions. There are also proper arrests and convictions. Didn’t anyone tell her?
It’s not that the legal system is doing such a great job that we have no use for the help of the defendant and his family, or the community as a whole. We’re doing a lousy job. Actually, a pretty awful job. But it’s not necessarily for lack of effort, but that we’re facing a system largely designed to facilitate the imprisonment of people with speed and efficiency. And when someone is on the victim side of a crime, they tend not to feel that the system is doing much for them either. Ironic, no?
So could we use the help? Sure. But knowledgeable help, competent help. We could use help that follows instructions, that comports with the law, that elects better lawmakers and judges. What we do not need is every social justice warrior with a grand total of one data point, based on sitting in a room listening to people talking in a foreign language about concepts that they can’t begin to grasp, commanding us to do their bidding.
What we do not need is a courtroom filled with angry and self-righteous activists who think if they make nasty comments and contorted faces at the judge and prosecutor, they’re going to start to cry, collapse into a quivering, weeping ball in the corner and let the defendant walk because they are so afraid of community disapproval.
And if they really gave a damn about the poor, they would do far better to spend their time pushing legislators to better fund indigent defense. Public defendants don’t need more stupid people making demands of their time, but more time. No weepy story of injustice cuts a caseload in half, and no passionate plea is as persuasive to a judge as a sound legal argument. No matter how strongly the passionate community activists feel about it.
Update: In the comments, there’s discussion about Alice Goffman, of the TED talk, and significant questions raised about her claims by Steven Lubet that her stories don’t bear out under scrutiny. Goffman has responded to Lubet, and Eugene Volokh captures the excuses and secondary stories.
Eugene also notes an argument by UCLA Prof. Jack Katz, that Goffman shouldn’t be criticized for her involvement in potentially criminal conduct as that would chill embedded research. I am not persuaded. Not even a little bit.
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SHG,
Although I am not proud of my reaction, when a “participatory defense team” for a family of drug dealers sat in the gallery watching as I sentenced one of their own to a richly deserved life in prison, it was only then that I truly and completely understood the meaning of schadenfreude. Rejecting the plea offer was a really dumb thing to do, but that rejection was part and parcel of the terminally stupid “participatory defense.”
Save me from well intentioned dumb shits.
All the best.
RGK
SHG,
I should make clear that life was the statutory minimum. The gamble urged by the “participatory defense team” was thus particularly inept and sadly so.
All the best.
RGK
Would it be trite to say that the road to hell is paved with good intentions? Well, yeah, I guess it would. So instead, I’ll proffer this demonstration of participatory defense in action:
Your Honor,
Was the family facing similar charges or was it just “known” as to the family business? I’m just wondering if they were previewing what they could expect in the future or if it was merely family support.
Has a family member ever persuaded you at sentencing hearing to alter your intended sentence until that point? I’ve seen some great speeches and it seems to not affect the judge or the judge says “thank you that’s very nice of you” to “wow, where were you when D was getting into all this trouble?”
By the way, I speak for everyone practicing in federal court that your blog is a good thing. Everyone knows federal judges are people, and peoples’ positions vary as do their opinions, but seeing your view on general issues like court procedures or your opinions looking back on past cases, and especially your view on current legal events outside your circuit is a great resource and your decision to keep publishing your blog was absolutely correct from a legal standpoint and is highly appreciated by us lawyers who argue almost daily in court.
Was there an election for federal court practitioners’ spokesman? How did I not know about this?
You didn’t get the ballot?
I know you had prior posts on that issue and I didn’t comment. I thought the judge’s comment here warranted a question and wanted to add my 2 cents to the question he posed and which you discussed previously.
I haven’t polled every single attorney in federal court but I have never met a colleague who didn’t wish to know how a judge thought; even a general answer to the views kept versus modified by a judge. What legal reasoning changes, if any, occur when you move from the position of advocate to an impartial adjudicator of competing legal claims.
If my input to the judge, aside from my question involving family participants in a federal criminal case, was inappropriate that wasn’t my intention and it’s your blog that draws comments from judges.
If your comment was strictly directed at my hyperbole then that’s my fault for not being precise and I amend from “any lawyers” to “any lawyers I know.”
You could have commented at his blog. You could have said, “and thanks, Judge, as I really appreciate your blog.” Plus, it would have had the added benefit of brevity.
Got it. And I’m working on brevity in general.
Mark,
Thanks for your kind words. But your views on the subject of my blog are not shared by many members of the bench and bar who I respect a lot. I will address this issue more fully in an upcoming article to be published in the ABA’s journal entitled “Litigation.”
You ask whether the family was facing similar charges or was it just “known” as to the family business? Those on the “defense team” were part of a large extended family and they were not facing charges.
You ask: “Has a family member ever persuaded you at sentencing hearing to alter your intended sentence until that point?” Yes, but it is very infrequent. Example: A strong member of the defendant’s family convinces me that the offender of a low level crime could be supervised with the aid of that strong family member and without the need for incapacitation.
All the best.
RGK
Thank you.
As to those against a judge publicly blogging, I understand their position but it’s just wrong. Commenting on legal issues not currently before you, whether well in the past or in completely different federal circuits, can only help lawyers and the public consider one specific judge’s viewpoint at a certain snapshot in time. Again thank you.
Apologies to Scott and this issue won’t be commented on further by me. I greatly value your blog and your experienced insight.
Defense counsel regularly use family members and friends to craft a persuasive position at sentence. The distinction here is that the impetus should come from the family and community, rather than the lawyer, and the lawyer becomes the mouthpiece, at best, for whatever the family/community decides should be presented to the court.
A very different proposition, to say the least.
SHG,
Speaking of trite, consider these:
“Sending a shiver down one’s spine” or “someone walking over one’s grave” becomes “Getting butt-dialed by God.”
“Heaved a sigh of relief” becomes “Got the ‘text not sent’ message on the hung-over morning after.”
“You win some, you lose some” becomes “You get some trophies, you get some trophies.”
“Woefully inadequate” becomes “rejected by a vanity publisher.”
“All your eggs in one basket” becomes “all your files on one hard drive.”
“Covered one’s butt” becomes “ran it by legal.”
“When all is said and done” becomes “when Comments are closed.”
“Carrying coals to Newcastle” becomes “carrying kale to Brooklyn.”
“Not playing with a full deck” becomes “Intel not inside.”
“That will be a cakewalk” becomes “that will be a Monday crossword puzzle.”
“Out of his league” becomes “beyond his bandwidth.”
“Ringin’ off the hook” becomes “buzzin’ out of my pocket.”
“Let’s not get ahead of ourselves” becomes “Let’s not do a Microsoft release.”
“Anything-gate” becomes “anything-ghazi.”
“Push the reset button” becomes “wipe the server.”
“A breath of fresh air” becomes “a microchip-activated spritz of Febreze.”
“Took the easy way out” becomes “crowdsourced a column.”
Stolen from Gene Weingarten, Gene Weingarten has the trite stuff, Washington Post (May 8, 2015).
All the best.
RGK
I cannot overstate the degree to which I hope to wake up one morning and read : “Judge Kopf choked to death on the mouthful of self rightous horseshit he was attpemting to spew from his cavernous gob.”
Also, while I don’t necessarily want judges or prosecutors to “collapse into a quivering, weeping ball in the corner,” I’d love to see them act with the understanding that a) they are not infallible b) it is not in society’s best interest to lock up as many people as physically possible, and c) the 1st, 4th, 5th, 6th, and 8th amendments are sacred rights, rather than annoying technicalities to be undermined at every single opportunity. Should they forget that, they deserve much worse than a room full of people giving them the stink eye.
Well, that was unnecessarily graphic. Would you not think it more useful to explain why you are troubled by Judge Kopf’s views than attribute a “cavernous gob” to him, which does not appear to be true? His gob appears to be unremarkable, and not cavernous in the least.
Oh, and the other amendments are nice too.
[Ed. Note: Comment deleted because reasons. Am I making myself clear yet?]
I understand your link to war stories and why the policy is there. I thought my comment was more general about how to handle family members wanting to participate in the client’s defense, rather than telling a specific story of my defending Tony X in Guam for honest services fraud*
* name, jurisdiction, and overruled federal statute are fictional examples where any overlap irl would be ironic coincidence
The post is about participatory defense. Your comment was all about you, and how you deal with family members who want to help. You are telling a story about you. If you think you are fascinating, start a blog so you can tell the world all about you. But there is no post here that’s all about you. If there should be, I will let you know. I promise.
This may get nuked for being a bit off topic, but regarding Goffman, there is an interesting recent essay, “Ethics on the Run,” by Steven Lubet in The New Rambler. The essay raises questions about Goffman’s “accuracy and reliability” and possibly criminal conduct. Goffman’s Wikipedia page cites a May 27 Reason post quoting Goffman as stating that she will respond “within the week.”
Given that Goffman was held up as a paragon in Bornstein’s op-ed, it’s definitely on target. The Lubet criticism relates directly to my problem with her TED talk, as I had the same reactions with her pitch line by line. Every story had a stink to it, that should be obvious to anyone who practiced criminal law (like Lubet).
What was clear was that her stories were either malarkey, or she left out a required piece, because they don’t happen the way she told them. Huge holes were obvious, and she leaped over them to the applause of her empathetic audience, people so desperately want to reach the conclusions that they allow someone like Goffman to spew nonsense without any question or skepticism.
Edit: The Reason post of May 27th says she will respond by the end of the week.
Are you saying you disagree with her conclusions? Isn’t she saying much the same thing as you?
It makes no difference whether we agree or disagree. What matters is that she’s spewing nonsense to make her point (with which, for the most part, I do agree). Just as the ends don’t justify the means for cop’s lying, the same is true for Goffman.
One should never ignore a client’s family-but at the end of the case, the Defendant does his own time. Any endeavor, with the possible exception of academia does not lend itself to Mom, Dad, Auntie, or a Goffman participating. Idiocy.
God save us all from “participatory defense.” In my more cynical moments, I’ve thought about putting a clause into my retainer agreements saying “:the client and his family agree to stay out of the law library for the duration of the representation, and if they do go, they agree not to tell me about it.”
Ah, yes, the client with caselaw in hand, demanding to know why you aren’t arguing a point completely irrelevant to his case and insisting you make a motion to suppress an ID when there’s no ID. Always a joy.
Let us not forget the flag-fringers and sovereign citizens.
I do not know much about Professor Goffman, but Raj Jayadev is someone I respect. His organization works with public defenders, not in opposition. I have seen their work – excellent short documentaries that give a fuller picture of defendants than reports or even advocacy. They can be very effective at proceedings where the rules of evidence do not apply, such as sentencing, parole, bail and plea bargaining. I agree it is a bad idea to go around the lawyer, but that is clearly not their intent.
That may be, but that surely isn’t what they’re talking about here. Want his trained community activist dictating to your lawyers how they should defend their clients? Want parents, uncles, etc., calling your lawyers ten times a day dictating legal tactics? Want a roomful of people trying to intimidate the judge, maybe yelling bullshit at the prosecutor? Want to take your marching orders from an angry and ignorant mob, who doesn’t need to know anything about law because they’re passionate?
That’s what this is all about. It is clearly their intent.
I am sorry, but I do not know of a single instance in which Raj’s organization has yelled at a prosecutor or intimidated a judge.
If so, Raj can always disavow participation and support for this “participatory defense” scheme.
Hypothetically, but he has a high degree of integrity. I have talked enough to him that I am comfortable it is not their intention to simply disrupt the lawyer/client relationship or create unnecessary problems with the court. However, there is also a time and place for community involvement. We would not even have a PDO without it.
It’s in the op-ed. Its not that I don’t trust you, but it is what it is, regardless. Neither you nor I can reinvent it because we have nice things to say about someone involved.