Schadenfreude Is Not A Viable Legal Doctrine

When news broke of Roger Stone’s arrest, the place went nuts. The “place,” of course, was twitter and the teams braced themselves for war. Caught in the middle were criminal defense lawyers, as here was an FBI takedown of a high profile, and outlandish, Trump guy. Oh, Rachel was gonna be lit that night.

But it created a huge conflict between reality and partisanship, between what experienced criminal defense lawyers saw and what partisans wanted to see. It got bad. Quickly. At one point, Ken White twitted the obvious (at least it was obvious to the rational), albeit in somewhat tepid words.

The “stop questioning law enforcement or you’re pro-Trump” is really, really, really not a good look, and illustrates why criminal defense attorneys believe there is no party or “side” that is reliably in favor of defendants’ rights.

It’s not that Ken isn’t tough enough to brave the reaction to a bold condemnation of mindless partisanship in the face of substantive distortion, but why invite a thousand “hate twits” from the useful idiots? And it wasn’t just the cheering of the progressives, filled with joy at the arrest of Stone and desperately trying to talk their way out of why they were on the pro-prosecution, pro-arrest, pro-morning raid, pro-perp walk, etc., side.

All the things they decry whenever it’s anyone else are suddenly great when it’s someone they hate. The excuse was “rich old white guy” as opposed to “poor young black kid,” which is, of course, what identity politics is all about. So they’re not opposed to the perp walk, but to the perp walk of a black kid. They adored the perp walk of Roger Stone. And if you didn’t adore it too, it must be because you’re a Trump supporter because no one can be principled about the perp walk, that’s a terrible thing regardless of the identity of the perp.

For people whose careers were built on attacking police impropriety and prosecutorial overkill, this was a minefield. They are caught between conduct they would otherwise vehemently condemn and a defendant they despise. Or more to the point, a defendant they must despise or suffer the wrath and unpopularity of the woke for not hating the person they demand you hate.

The conundrum is hardly new, but has gotten far worse over the past few years. We have criminal defense lawyers who cry sad tears for their poor minority defendants who suffer the nightmare of being denied due process, yet applaud with all possible vigor as its denied male college students accused of sexual misconduct. These same people will fight for the presumption of innocence for their clients, yet are certain of the guilt of Harvey Weinstein before trial.

But Roger Stone?

Roger Stone Lied. What Was He Hiding?

Did Stone lie? The indictment says so, but indictments are merely accusations. Yet, the New York Times editorial headline concludes he did. Ironic that some complain about the lack of jury trials when the Times has, in its headline, concluded guilt upon indictment. Whether Stone lied or not makes no difference to me, but whether the paper of record says he’s guilty before trial does.

In a concluding paragraph likely intended to maintain plausible deniability of bias, the Times tries to thread the needle.

No one should jump to conclusions in this case. As president, Mr. Trump may have held himself to be above the law, but he is entitled to the presumption of innocence. For their part, the American people are entitled to some answers.

If this confuses you, you’re not alone. They leaped over Stone, who lied as they’ve already concluded, but gave Trump the “presumption of innocence.” That’s damn kind of them, considering Trump wasn’t indicted.

That editorial writers, useful idiots on social media and the great unwashed have decided whether to wear MAGA or Pink Pussy hats is beyond the reach of criminal defense lawyers. But this delusion touches on our world, on what we do and what we’re supposed to believe. Do we support constitutional rights, or do we support rights only for those whose identities conform to our political agenda?

For criminal defense lawyers, this minefield is too dangerous to traverse. If you put your efforts into attacking constitutional rights, they won’t be there for you, for your clients. If due process is traumatic, then it’s traumatic for all. If the accused is undeserving of the presumption of innocence, then your poor black defendant will be presumed as guilty as the rich white Roger Stone. But he already is, you reply? Too often, yes, and so the solution is either defend the right for all, not only for your favored defendant. Schadenfruede is not a viable legal doctrine.

Let the unduly passionate on social media call you names, misrepresent your position, project their outrage and prejudice onto you because they know no better. You’re a criminal defense lawyer. You can take it. Our world is one where nobody loves us for fighting for the people society despises. Nobody promised you popularity for what you do. Nobody is going to build a statue of you for being dedicated to the principle of constitutional rights for all.

But if you can’t gird yourself against the tidal wave of ignorance and bias from the groundlings, and succumb to the cries for social justice that undermine principle for the sake of identity, then don’t expect constitutional rights to be there when your client needs them. And stop complaining about it, as you were party to their destruction.

Hate Roger Stone all you want, but never forget that he’s just a criminal defendant at the moment, and like every criminal defendant, is entitled to the rights you demand for your own clients. You don’t do this for Stone’s sake, but for the sake of principle, the same principle you seek for those clients you prefer. If you can’t do that, you’re in the wrong profession.

34 thoughts on “Schadenfreude Is Not A Viable Legal Doctrine

  1. scott fowler

    retired criminal defence lawyer from Canada.recently stumbled upon your posts. This one is outstanding.

      1. Ross

        “Dammit, SHG, you are getting a tummy rub, even if I have to zap you with this cattle prod first to get you to settle down”

        I don’t think I’ve seen a post that sucks in the years I’ve been reading SJ. Get your boss to give you a raise!

    1. Skink

      Thanks for joining, but in this here Hotel, we know there’s no such thing as a “retired lawyer.” You is or ain’t; there’s no quittin’ it.

  2. Skink

    There you go, again–thinking short. It’s for all of us to enlighten those who would allow constitutional rights to drown in a sea of “everyone knows he’s guilty.” It’s not just the job of CDLs. Every one of us has had that conversation with dopes, but it’s never been more important that we continue that education. Who will it be if not us?

    Thanks for being SHG.

    1. SHG Post author

      I had dinner the other night with a young lawyer with huge potential, but who spends a great deal of his time riding on the SJW bandwagon. He’s quite smart, but was he wise? As it turned out, he was, and recognized that it was more about fitting in with his crowd than believing. I think that’s a huge factor here, that many lawyers know better but fear not running with the herd will make them pariahs among their friends. They need to know they aren’t alone, even if us old guys aren’t particularly cool and hip.

  3. Hunting Guy

    Was there a leak? Oh, that’s OK, Stone is a bad guy so we can do that.


    “CNN producer David Shortell admitted that he was “waiting” outside Roger Stone’s house at 5am, an hour before FBI agents and police arrived to arrest the former Donald Trump associate.”

    1. SHG Post author

      The CNN cover story, that they saw “unusual activity” in the GJ (a Thurs session instead of a Fri session) and so they flew a camera crew to Florida to be there the next morning, to Stone’s home, was facially ludicrous. Tipping the media is a time-honored tradition, but believers gonna believe.

    1. SHG Post author

      Usually, when I have a typo, someone is kind enough to just point it out rather than be a little snarky dick. I have typos all the time, which is why I have an editor. Here, my editor missed it. Should I beat her? I think not. Shit happens.

      So thank you for pointing out my typo, which I’ve now corrected, and too bad you felt compelled to be an asshole in the process of informing me. It’s a shame you didn’t have the balls to use a name while being an asshole, but then that’s kind of the nature of snarky assholes.

  4. Richard Kopf


    Whoever is handling the Stone case for the government ought to be very glad that the case is not in front of me. That person or those persons would have exited the first appearance with a new orifice and Mr. Stone would have been released by me on a PR bond (and no money down).

    The DOJ and FBI have disgraced their respective institutions. Ten plus agents in tactical gear with heavy weapons and warrant should have been replaced by two agents in ubiquitous black suits and red ties and the service of a summons at cocktail time in the sunny afternoon.

    Whatever one thinks of Trump, Stone or those who wear MAGA hats rather than pussy hats, he or she is either an arse or an idiot if they approve of the manner in which Stone was taken into custody. Call me quaint but thought there was a presumption of innocence that, among other things, FBI and DOJ employees were sworn to uphold.

    All the best.


    1. SHG Post author

      He apparently got a $250k PRB, not sure how many FRPs but I would think his signature was enough. It was a performance for the masses. They shouldn’t do it for anyone absent necessity. They shouldn’t do it for Stone. That he didn’t get a voluntary surrender tells me this is going to be an unpleasant experience for all involved.

  5. John Barleycorn

    Has anyone ever told you that you CDL’s really need to spend more time informing their clients to shut the fuck up!!! 😉

    This post is fine and all-and you are right to keep saying it over and over and over again-but just more blah, blah, blah in the end… Heck, not even a photo of the defendants tattoo (let alone a Vanity Fair-ish spread of those bespoke suits he used to sport in the late 70’S) followed by a paragraph inking that tattoo into what really pisses you off. One of these days, perhaps…

    P.S. Every time you bring up bring up Fault Lines I always think you are getting ready to sell me the SJ URL in order to give F/L another try and/or you need to start vacationing in nations where Budweiser doesn’t exist regularly.

    Talk to your tax attorney before season one of “Rudy and The Dersh Nursery Rhymes” comes out. You are gonna love the K-I-S-S-I-N-G scenes inside the grand jury room promo cuts.

    Speaking of grand juries and teaching moments??? Oh, well never mind….

  6. Jake

    Funny, I searched extra hard but could not find any evidence you have ever shared a similar criticism for those who claimed HRC ordered the murder of Americans at Benghazi.

    1. SHG Post author

      I’m sure all the woke lawyers will appreciate that the presumption of innocence inures to his benefit, right? RIGHT?!?

  7. B. McLeod

    Modern media has become largely worthless for reporting facts or informing the public. Now they are just the school “spirit squads,” cheering for whatever lot their editors have determined to be worthy.

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