Tuesday Talk*: The Avenatti Test

Indicted to the right. Indicted to the left. It was obvious from the start that he was playing Icarus, spewing bluster like any loudmouth fool can do, but with a standing invitation to sit with Rachel and Ari whenever he didn’t have someone more important to hang with. Sure, Mark Geragos tried that before him, albeit with somewhat less noise and more signal, and it failed to land him a prime time special, but the sun was shining on Michael Avenatti. Or at least the Klieg lights.

But Avenatti’s entrance to the studio was paved by Stormy Daniels, who had nothing nice to say about Trump, and so his bluster was not merely welcomed, accepted, but adored. Since then, he hasn’t been particularly useful, given his ridiculously hyperbolic introduction of a false accuser forward against Justice Kavanaugh that undermined the efforts to taint him as a teenage rapist.

Of course, there were also his claims that he was solely responsible for bringing down Trump’s hatchet man, Michael Cohen, even though it turns out that the feds were onto him years before anybody outside of bankruptcy court and the grievance committee knew Avenatti’s name.

It’s not inexpensive to be a star. There are nice suits to be fitted, hotel rooms and limos, dinners at the better restaurants, where important people dine. They don’t come cheap, and the money has to come from somewhere, like client escrow funds. Or Nike, since a star can call a presser to destroy a multi-billion dollar corporation mere moments before its earnings conference call. Or his indictment.

Now, there’s an indictment in New York. An indictment in California. Both bear the name Avenatti. And right-wingers are enjoying their moment of vengeance at the expense of this mouthpiece just as the left-wingers did with Cohen. And Stone. And Manafort. As tests of hypocrisy go, they failed, as they seized upon the “court of public opinion” to vent their fury at this poseur. Curiously, there weren’t many, outside of the most twisted believers, who cared enough for Avenatti to defend him.

To my own dismay, I gave it a half-hearted try.

Much as it pains me to say this, Avenatti is merely accused. He is entitled to due process and the presumption of innocence.

There is no presumption of not being assholish, but assholish is not a crime.

Granted, it wasn’t a full-throated endorsement, but it’s not as if I admire his work. In fairness, he blocked me on twitter, so I assume he doesn’t admire mine either. As one might expect, there were some who pushed back at what they perceived as an overly-lawyerly adherence to the technical legal concept of presumption of innocence.

At New York Magazine, Jonathan Chait shut his eyes as tightly as he could and took a dive down the court of public opinion rabbit hole.

If an accused person wants to be considered innocent in the court of public opinion, they cooperate with the investigation.

Of course, Chait wasn’t talking about Avenatti, but the harsh rules of the court of public opinion don’t seem to care. We hear, read or imagine accusations and reach our conclusions, after which we fight like hell to prove our beliefs right. But Avenatti, you reply, was like the goofiest extorter ever, and they have him on tape! Do they? Probably. Does he say what’s attributed to him? Probably. Do you know? Unless you’ve heard the tape, you’re believing what someone with a vested interest tells you. Sure, it’s likely correct, but you don’t know. Not for real.

The question is whether you care. After all, there are no rules of life that require you not to indulge in whatever beliefs pop into your head, whether it’s Avenatti’s dirty as sin or Bill Barr is a toadie to Trump to twist Mueller, of the candle and tat fame, into a Trump pretzel to conceal his awfulness from Adam Schiff’s prying eyes.

Is the presumption of innocence just the lawyers’ parlor trick, a wink and nod that not even lawyers believe? Clearly it’s no crime for the court of public opinion to reach its verdict of guilty based on #MeToo, an indictment on the twitters, but is there anything wrong with mass public condemnation becoming the norm? If the lawyers aren’t buying, the pundits sneer at it, the useful idiots have their torches at the ready, is it reasonable to expect jurors to take it seriously?

Or perhaps jurors will be superfluous, since we no longer need conviction after trial to punish the hated, to destroy a life because a social media death-qualified jury knows, for realsies, who’s guilty and who is not. Is the presumption of innocence another archaic legal technicality to mutter in the well but laugh at in real life? Should it be? If so, can it be saved, because it’s not doing well these days.

*Tuesday Talk rules apply.

34 thoughts on “Tuesday Talk*: The Avenatti Test

  1. Hunting Guy

    James Bovard.

    “The vision that the founding fathers had of rule of law and equality before the law and no one above the law, that is a very viable vision, but instead of that, we have quasi mob rule.”

  2. B. McLeod

    Avenatti, speaking to the media even while under indictment, has proclaimed that he “will be cleared.” Like, totally exonerated. Hugely.

    I suspect the reason he can’t get along with Trump is that they are too much alike.

  3. Skink

    “Is the presumption of innocence another archaic legal technicality to mutter in the well but laugh at in real life? Should it be? ”

    It’s easier if we don’t blur the lines. The presumption is for litigation and trial. So long as the jurors understand how it works, it will. Picking jurors is often a fools errand because we imagine we know how the individual thinks, when all we really do is make wild assumptions. It’s the only time we do, because we’re lawyers. The better time spent during selection is to hammer at the standards of the jurors’ job, especially the presumption. It’s our job.

    Public opinion has always been different. Did people talk about Capone’s guilt? Sure, the shit gets flung farther, but humans are just that. Social punishment before due process and guilt are wrong, but it’s because there is no process. But we can’t expect regular people to not draw sides on criminality, and that they do doesn’t mean the end of the presumption.

    When I read the NY indictment, it was hard to think of it in terms of criminality. We get the presumption and indictments are written with a severe slant. We take it for what it is–some probably accurate, some probably not. What kept running through me was not the potential for guilt or the punishment. It was not whether he is guilty of all that’s included in the recitation. It was this: if any part of it is true, then he doesn’t know what a privilege it is to hold this license and he’s too stupid to be representing clients.

    1. SHG Post author

      So if everyone believe it’s a just some goofy technical lawyer joke in real life, it will be taken seriously when they put on their juror hat because regular people who are picked as jurors are better people than . . . regular people?

      1. Skink

        “So if everyone believe it’s a just some goofy technical lawyer joke in real life. . . ”

        Everyone doesn’t and if we explain the difference, they will see it. That’s our job. This isn’t the same as advocating for the end of trials because “everyone knows the defendant is guilty.”

        1. SHG Post author

          Who’s this “we” and “our” you speak of? I’m doing it, but to tell you the truth, brother Skink, it’s pretty lonely out there with a million babies screaming their most passionate feelings.

      2. Charles

        Exactly. Just like they don’t expect the real killer to break down and confess on the stand or that you always have DNA evidence that conclusively proves your client didn’t do it.

  4. John Barleycorn

    Makes a guy wonder how many wanna be lawyers who flunk out before or after graduation, let alone passing the bar, change course and go into public relations looking to get onboard with a K Street or Planet Manhattan crisis management team?

    Who said social media mastery couldn’t get you on the A team after you pay your dues and brew a few thousand cases of coffee before and after your internship?

    Come on now esteemed one don’t cry, it is not as though those public relations firms are gonna create SWATT teams that don’t have at least one communications assistant on the team who actually passed the bar, right?

    Don’t pay any attention to those entry salary and expected peak income graphs either. I mean really, who you gonna call after you get busted by the local paper for donating new leather chairs to your granddaughters student council just before the prom queen vote? Your lawyer whose office is three counties away or that new PR firm that just rented out the second half of the day spa/cosmetic surgery building out in front of the strip mall?

  5. Jake

    The presumption of innocence is a legal principle which is often thrown around in public debate as some sort of rhetorical shield, but it has no relevance in that context. From the perspective of managing a high-profile client’s public image, I’m sure this was a lot easier back in the old days when the majority of potential jurors accepted what they were told to believe on the evening news, but those days are gone. The good news is there are tactics for moving public opinion in the era of Reddit and Twitter.

    1. SHG Post author

      So it’s not a choice that we, as a society, prefer over presumed whatever the fuck Jake says they are? Then again, if you don’t get that gig as public executioner, someone else might just make the decision and bring the blade down on your cis white hetero-normative man neck.

      1. Jake

        “So it’s not a choice that we, as a society, prefer over presumed whatever the fuck Jake says they are?”

        ¯\_(ツ)_/¯ Sure. Why not? I think that would be lovely. But as you so often and more eloquently have observed: public opinion is a fickle beast. We, the unwashed masses are capricious. To the extent it matters to your high profile client’s defense, you have to deal with that counselor.

        1. SHG Post author

          When presumption of innocence, as a concept, is reduced to some lawyer technicality, it applies to every deft, not just the high profile ones. Society fails to accept the fundamental doctrines that form our jurisprudence and assume that if the deft wasn’t guilty, he wouldn’t have been arrested and taken to trial. We have to deal with that as well, and that applies to a lot more folks than high profile clients.

            1. SHG Post author

              Let go of the chew toy sometimes and think. It’s not about having a better-educated society, but about not deliberately making people stupider to serve one’s transitory agenda, Jake. Focus.

  6. Jeff

    I hear this a lot online,that innocent until proven guilty only applies to a courtroom. It certainly gained popularity during the whole Kavanaugh fiasco. I feel like a lot of stress at people’s idiocy could be avoided by simply ignoring social media. I think to myself that people aren’t really the way they portray themselves online, that’s bluster and hyperbole. They’re caricatures of themselves.

    Then I think about the 24 hour news channels and realize that the real media is the same way. It could be that they believe the shit they’re spewing, or that they have a lot of cycles to fill, either way it amounts to the same thing. One would be happier if they could simply stop listening to the media, social or otherwise, entirely.

    In the 18th century it was fashionable to employ a garden hermit. This was someone who lived on your land, you paid him a stipend, clothed and fed him, in return he would live an isolated life and only appear to yell at people and shake his staff.

    I feel like that’s a career path where I could find true happiness.

  7. Steven E.

    Why on earth would I believe in the principles that make up the cornerstone of our criminal justice system when I have all these feelings? We as a society (mob) deserve the right to destroy reputations and lives without any of those fuddy-daddy rules or procedures. Long live the cult of feelings

  8. CLS

    Now is the time when defending the presumption of innocence matters most. When the person you despise most is accused of a crime, the principled attorneys in the room will be the ones saying “I get you don’t like Michael Avenatti, but this is the United States of America, and in America defendants are presumed innocent until proven guilty beyond a reasonable doubt, and it is the Government’s burden to prove guilt.”

    If enough voices can muster the courage to voice that sentiment, we’ll know the presumption of innocence still means a damn, or if it’s one more right we’re willing to throw away in the era of outrage mobs and wokescolds trampling over the law.

    I’ve used a version of this before, but it’s easy enough to recycle: “The test of the presumption of innocence lies in that which is hardest to defend. It would be really nice if assholes like Avenatti didn’t make us work so hard at it.”

    1. SHG Post author

      When woke baby criminal defense lawyers contribute to the erosion of the presumption, not to mention due process, then our problem isn’t just Avenatti, but our own brethren.

    1. SHG Post author

      We can see that both sides are playing the same, if opposing, games with the law. Partisans see only how it hurts their feelz.

      1. szr

        That’s no excuse for ignoring a perfect portmanteau opportunity! It was a real anticipointment.

  9. michael woodward

    Sadly, for the hard of thinking, the “Innocence of Presumption” is so much easier.

  10. Billy Bob

    There you lawyers go again, talking about one of your own. The court of public opinion, … the presumption of innocence with a wink and a nod. Yadda, yadda, yadda.

    Our best takeaway is the fellow above who brings up the 18th C. concept of the garden hermit. We like that one. It gives us an idea,… Well, more than one.

    So this Avenatti fellow is in deep doodoo? We are truly sorry to hear about that. Schadenfreude anyone? We took German in college, but did not go into medicine. That’s where we went wrong. We coulda been a “plastic” surgeon, in more ways than one.

    Portmanteau is another good word. We had to look it up.

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