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.
No matter how much you hate Trump, dear lawyers, if Rob Porter isn’t entitled to his constitutional rights, neither are your clients.
— Scott Greenfield (@ScottGreenfield) February 9, 2018
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.
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.