Which Rights Are Left?

My integrity muse, Appellate Squawk, smacked hard and it stung. Who defended Roy Moore from the absolutely, clearly, irrefutably established fact that he was pedophile? Who was tough enough to point out that Harvey Weinstein has never been convicted of a crime, that not a single disputed allegation against him has been proven? In the public hive mind, these are beyond dispute, and they may very well be the case, but so what?

We’re lawyers. More than just lawyers, criminal defense lawyers. We represent the people society despises. We fight for them. Or at least we used to.

One of my fundamental beefs with criminal justice reform advocates is that they constantly rely on the narrative of the sad, innocent, systemically-maligned defendant. As if the mean, guilty-as-sin defendant is unworthy of constitutional rights, our defense. This is the fallacy of those who use the sympathetic defendant as the mechanism of reform. In the process, we increase the vilification of the vast majority of defendants by contrast.

When I saw lawyers, journalists and even a member of Congress doing the same with the latest target of hatred and derision, presuming guilt, ignoring presumption of innocence, begging the question by discussing consequences built upon the conclusion that he was a wife-beater, despite his denials and lack of conviction, Squawk’s rebuke rang in my ears. Who will say something for the most hated? I undertook the task.

Frankly, it was a tepid effort, remarkably benign in its uncontroversial words. Well, uncontroversial but for two words.

Had the name in the twit been different, this twit would have likely been generally ignored. But the two words were Rob Porter, who is both a Trumper and accused of domestic violence, a toxic combination at the moment. The reactions were quite remarkable.

Despite there being no mention of anything specific, many reactions were that Porter had no constitutional right to a post in the White House. Of course not, but nowhere did I suggest he did.* There were quite a few telling me how stupid and wrong I was, demanding I tell them what constitutional rights Porter had been denied, under the usual twitter requirement that I am required to explain myself upon random demand.

And the same twit received well over 500 “likes,” which were mostly of similar ilk to the criticism, not understanding its point but rather being on the other political team. I was not defending Rob Porter, or the allegations against him. It’s the old saw, we defend murderers, not murder. This concept will never been be widely understood as it’s foreign to almost everyone but criminal defense lawyers.

But a more curious twist came from a law prof. presented as the “honest question,” though it wasn’t, as the discussion devolved down her rabbit hole. It began with the question, “What constitutional rights are lawyers saying Porter isn’t entitled to?” Notably, she at least understood implicitly what most failed to grasp, that I was talking about what lawyers were saying, and didn’t say Porter had been denied any concrete right. In good faith. I replied.

Most lawyers (as well as journos/govt officials) are discussing Porter as if he’s been convicted. No question of guilt.

Bad as Porter may be, he’s not been convicted of anything. His guilt cannot be taken for granted any more than anyone else.

Was this an outrageous proposition? Of course it was.

At a criminal trial, yes. But (as you know) they aren’t they appropriate standards elsewhere, like in civil litigation. There’s an important conversation to be had about the appropriate standards in the so-called court of public opinion. But that’s not a constitutional issue.

From there, Carissa Hessick took her swan dive down the rabbit hole about how the guilty are tried in the court of public opinion, ultimately ending in her gracious willingness to consider my reply, as if I approached her seeking her valuable attention.

I’m questioning whether the same BOP ought to apply in public discussion as at a criminal trial. You appear to be suggesting that it should. But I’m happy to have you explain otherwise if that’s not so.

But unsurprisingly, her question missed the boat, so I declined to spend more time “explaining” it to Hessick, since she’s not the center of my universe. Or to the other random demands on my time and attention. But the better question is what role we play in the “court of public opinion” in supporting the same constitutional principles we expect to be there for us when it’s our client in chains.

If we, as criminal defense lawyers, disparage the notions of presumption of innocence and burden of proof when the target of our venom is someone like Rob Porter, then we have no one to blame for the public rejecting it, calling it a “technicality,” vilifying constitutional rights as some lawyer game, when we need them. You can’t have it both ways, kids.

Either these rights have inherent value, and they should be respected and promoted for everyone, or no one gets them. When we teach the public that even we think these rights are malarkey, as long as we hate the target of the moment, how can we expect any better of the public when it’s a defendant we adore?

How many times has Ken White gone bonkers about someone claiming you “can’t cry fire in a crowded theater”? Yet most people believe that’s the law. Title IX advocates have worked hard to vilify due process on campus, as if this vilification of the concept will magically not impair due process in general. We’re watching constitutional rights undermined, and rather than defending the principles behind them, many lawyers, and even academics, are leading the charge.

One non-lawyer summed up the problem well:

If lawyers appear to not care about the concept of presumption of innocence, why should anyone else?

When you wonder why the principles aren’t there for you when it’s your turn, your defendant’s turn, to rely on the good faith application of constitutional rights, it’s because you did everything possible, no matter how ridiculous, to prove in the court of public opinion that they don’t matter when you don’t want them to. When you ask “how did this happen?”, the answer is you did it. And this is how it was done.

*There some outraged reactions from woke employment lawyers, Despite their reading what wasn’t there, this seems understandable, given that their practice niche rarely interests anyone. Finally, they got the chance to feast at the outrage table and they seized it. It must suck to be filled with virtue and rarely get the chance to signal it.

Then again, the view was quite different from a lawyer who practiced family law.

28 thoughts on “Which Rights Are Left?

  1. James L. Smith

    This reads like poetry to me. Thank you so much.

    It reminds me of the Florida woman with two black eyes who had her husband jailed for DV. The black eyes were irrefutable proof. But two officers came forward from a nearby town and explained the feisty woman attacked them and received the two black eyes fighting when they arrested her for DWI.

    1. SHG Post author

      Don’t thank me too much. I have no clue whether Porter is a wife-beater or not, and if he is, he’s scum. This isn’t about “poor maligned men,” but about lawyers abandoning intellectual integrity to suit their feelz, engaging in whatever emotional gymnastics are necessary to pretend they aren’t full of shit. They are, and it will come back to bite us all in the ass.

  2. John Neff

    If the defendant is presumed to be guilty the next step should be sentencing. When 100% of all cases are resolved by a plea bargain that will be the policy. I do not understand how we can tolerate trial penalties.

    1. SHG Post author

      Punishment in the court of public opinion is swift and harsh. Their only regret is they can’t really burn the heretic at the stake with real fire.

      1. B. McLeod

        However swift it may have been, I can’t see being cast out of the Trump White House as “harsh.”

        What is being played out here is political. Trump has apparently figured out that in addition to supporting the direct accusations against him, his detractors are seeking to paint him as the friend and protector of other accused, generally. First Roy Moore, now Rob Porter. Evidently, this time around, it was easier just to cut the accused guy adrift. I’m sure the SJWs of the “resistance” are already on to looking for the next person they can target with dated allegations.

          1. B. McLeod

            Right. But you know, when they came for the Porters, I said nothing (because I was not a Porter). Crap.

            Anyway, we must still have at least three rights, because I have often heard people say, “three rights make a left.”

  3. Richard Kopf


    When someone is accused of something–anything–in a court of law or in the court of public opinion I had always thought that the accusation should be viewed with skepticism. You can call it burden of proof, due process or intellectual rigor (honesty).

    Intellectual honesty is important when, and only when, we instinctively wish a certain outcome that runs counter to our skepticism. Thus, an intellectually honest feminist–perhaps the professor to which you refer–would view the accusations against Mr. Porter with skepticism precisely because and only because she values the truth more than she values her instinctive wishes.

    In this post, you have hit on something far more important than the excesses of the #Metoo and the SJ movements writ large. Americans have long had a tendency to eschew intellectual honesty–skepticism–in favor of various herd mentalities that coexist side by side. I am afraid that such a tendency has become a near-universal trait, that is, a part of our national genetics. Ironically, modern academics have become the Typhoid-Mary-like carriers of this infection.

    In short, Mr. Porter’s accusers must be believed because they must be believed. Sure, that’s a non-sequitur but nobody speaks Latin anymore.

    All the best.


    1. SHG Post author

      In the midst of our twitter “discussion,” she twitted something curious.

      (And it is worth distinguishing between the two. Otherwise you see people saying that it violates due process to argue that a person who has been credibly accused of sexually assaulting a teenager should not be elected to the Senate.)

      I ignored this because I had absolutely no clue what she was talking about. Had I been as intellectually honest as I should have, I would have said so. I didn’t. It just didn’t seem that interesting or worth the murder of more words for no purpose. I try to be “temperate” on the twitters, but damn, I hate to see so many words murdered for nothing.

      1. Richard Kopf


        That you were disinclined to engage any further with this dolt is perfectly understandable. All the best.


          1. Jyjon

            It’s obvious, she is saying that if you rely on due process for things involving the court of public opinion you’ll end up getting people with dubious backgrounds and questionable intentions elected to the Senate.

            1. Richard Kopf


              We certainly would not want “people with dubious backgrounds and questionable intentions to be elected to the Senate,” so sayeth Professor Hessick and Mary Jo Kopechne.

              All the best.


          2. Richard Kopf


            No clue, liberal pleading rules for pro se litigants (and law professors) notwithstanding.

            All the best.


            1. Skink

              Judge, Scott:

              It’s our job, our function; it’s the meaning of us to educate those who don’t get it. Due process and the burden of proof matter, and they matter most in the court of public opinion.

              Who says so if not us?

  4. wilbur

    Few of the guilt-assumers truly care about Porter or what he is alleged to have done or if he did it. Porter is simply a stand-in for Trump and is the latest conduit for their rage.

    1. Fubar

      With liberal application of broad brushes we can paint the rotten apples into a corner of the barrel of fish before we shoot ’em.

      They’re all guilty, no two ways about it.
      And only paid Russians would doubt it.
      No need for a trial.
      That’s just lying denial.
      We must never allow them to flout it!

  5. Dan

    When the Bill of Rights codified protections against unreasonable searches and forced self-incrimination, the right to counsel, the right to confrontation, etc., those were not sui generis rules that were just invented to give criminal defendants a fighting chance. Rather, they were (and are) simple requirements for just adjudication of complaints. But the “woke” (whateverTF that means) don’t seem to get this.

    1. SHG Post author

      And they won’t, and won’t care about them even if they know what they are, if lawyers treat them as a big joke.

      1. Billy Bob

        This whole thread makes BB sad. At least, Fubar gets his mojo back. We were concerned? Judge Kopf from the Eastern District shows up with his Typhoid Mary euphemism-metaphor. That was refreshing. Otherwise, All’s quiet on the Western Front. Tomorrow starts another round of Twitter-mania. We’re staying away,… for the moment, in spite of the urge to merge. We have words for that Carissa lady, but they’re not very nice. Is she really a law prawf? Something is severely wrong there.

  6. Lee

    My favorite current quote on this issues is from Jennifer Scheurle (@gaohmee), regarding the revocation of an award to Nolan Bushnell, one of the founders of Atari (responding to claims women who actual worked at Atari back in the day that the attacks on Bushnell were untrue):

    “You don’t understand. I don’t have to prove anything to you and neither do they. It is your job to practice empathy to an experience that might differ from your own.”

    That is apparently the standard amongst the woke. Facts don’t matter; the presumption of innocence doesn’t matter; only the accusations and the “experience” of the accusers matters. Bah, humbug!

    1. B. McLeod

      Scheurle you jest? If Scheurle was truly empathetic, she would be able to relate to my experience, which evidently differs from her own, and she would understand why I am so dependent on proof and cannot comfortably make whatever leap of faith du jour is demanded by every unhinged political opportunist.

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