Almost immediately after OJ’s aquittal, defendants came to the office demanding a “dream team.” OJ had a dream team, and they wanted a dream team too.
Me: Cool. How much money do you have?
Me: Dream Teams cost money. How much money do you have?
They could not, of course, afford a dream team. Some couldn’t afford a lawyer at all. Some would complain that it wasn’t fair, and perhaps it wasn’t, but that wasn’t going to change anything. They were entitled to counsel because the Sixth Amendment says so. They were not entitled to my counsel. Nor were they entitled to a dream team.
The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.
When Harvey Weinstein decided to surrender, it was handled in the usual manner, prompting writer Samuel Oakford to ask:
Why do rich people get to come to an agreement or whatever with authorities about when they are going to get arrested?
It’s a good question, even if framed in the wrong way. The process has nothing to do with the wealth of the defendant, but the circumstances surrounding the surrender. Less rich people get to surrender as well, though they’re insufficiently interesting so outsiders to the law don’t know or care about it happening. They only see what interests them, so naturally assume that it never happens except when they know about it. Nothing narcissistic about that.
But as noted in Ken White’s twitter ‘splainer, there are factors, circumstances, that make this more of a rich person’s game than a poor person’s. Or more correctly, a situation that is unavailable to the poor. The reason isn’t complicated as the two most significant factors to a surrender rather than an arrest is the knowledge, in advance of arrest, that it’s coming and the ability to retain counsel.
It’s not uncommon that people are alerted to the fact that the police are looking for them. They regularly show up at people’s last known address asking for them, and if they’re not there, leaving a card and asking that they call. They sometimes explain why they’re there. Sometimes not. It’s rarely to invite them to the Policeman’s Ball.
At that point, the person sought has three choices. Run and hide. Call the detective and go down to the precinct for a nice chat in a windowless room. Call a lawyer. Only the third option has the potential to result in a voluntary surrender. But they will have to retain the lawyer. This isn’t a public defender gig, but a private gig. And private lawyers get paid for their representation, so money becomes relevant.
Does this mean the poor are left to sleep under bridges where the less poor are not? Sure, just like many aspects of life. One can complain about greedy private criminal defense lawyers, always wanting money for their services, but then they need to earn a living just like everyone else. They take an oath to zealously defend their clients. They do not take an oath of poverty.
For the unduly passionate, the question arises why private lawyers don’t take the case pro bono publico, which means for the good of the public, not because you’re broke. And most of us do, but we select our cases sparingly. Your “greatest injustice ever” isn’t necessarily ours. And yelling at the lawyer for being greedy for requiring money isn’t a very persuasive tactic.
There are a great many people asking for our kindness, many of whom are far more deserving than you. We can’t do them all. We can’t do most of them. And, to be frank, most pro bono clients are extremely demanding and shockingly unappreciative, as if they’re entitled to our efforts.
Harvey Weinstein had Ben Brafman representing him, and Ben did what any good lawyer would do, with the caveat that the prosecutor was agreeable. He arranged for a surrender, a prompt arraignment and an agreed-upon bail of $1 million. He showed up with bail in hand, so Weinstein was able to walk out a couple hours after he walked in.* It doesn’t work that way for most people, and outsiders were outraged that the rich guy was able to do this when poor people languish in jail on $1000 bail they can’t make.
Bail for Weinstein was silly. If he wanted to flee prosecution, he had ample opportunity to do so before surrendering. He chose to surrender instead. And if he wants to flee in the future, he can afford to blow a cool mil. Another benefit of the rich. Sure, there was Roman Polanski, one other movie guy who fled to France, but we try to individualize bail beyond just one movie guy absconded, so all movie guys abscond. If not, that would work really poorly for poor guys. Think about it.
Naturally, the most passionate idiot was incensed by Weinstein’s “special” treatment.
Abolish bail. Either everyone should get this treatment or no one should, but the idea that if you have millions of dollars you’re entitled to it and if you’re poor you get incarcerated without trial is obscene
Aside from the simplistic hyperbole, the clarion call for equality between the rich and poor strikes at the heart of the problem. Not the bail problem, but the problem of simple solutions to complex problems. Is it fair that, at the request of baby Ivy law school grads and callously scared judges, bail is needlessly set in amounts the poor can’t pay? No. Not at all.
But is denying someone who can retain counsel, negotiate a voluntary surrender and make bail going to fix it? That fantasy that if rich guys were denied bail it would all change is just that, a childish fantasy. The solution to fixing needless bail for the poor isn’t making the unpopular suffer too. The problem isn’t the benefit of being able to afford a dream team on the top end of the spectrum, but being denied fairness on the bottom.
*In between, there was the perp walk, a completely unnecessary show put on for the sake of the public and media. Perp walks only apply to people in whom the media takes interest. When there are no cameras present, there’s no need to put on a show. Unless a poor person commits a particularly horrific crime, this is one indignity they aren’t forced to endure.