A nagging problem with navigating the gridiron of an unprincipled ideology is that no matter how hard you try to be on the right side of the goalposts of woke, they get moved on you and you find yourself being the baddie instead of the goodie, which you were until you weren’t. This isn’t a surprise, as it was the obvious and necessary outcome of an identity and victim-based view of life, since no one can ever know with certainty which identity trumps which at any moment, or who is the most victimy victim based on a what wrong is the most heartbreaking flavor of the day.
But for those who staked their claim of prominence in PD Twitter, their moment on the pedestal of social justice may be coming to an end. Unlike the old criminal law blawgosphere, where lawyers addressed most of the issues now raised by PD Twitter and its one-time dear friends, the reform activists, it was done with a focus on factual honesty, logical integrity and a level of detail and thought that was deeper than 240 characters.
We did this not so much because we were all so dedicated to deep thought, but because if we failed to do so, we would get ripped to shreds by our fellow criminal defense lawyers. We were merciless with each other. Unlike the next gen of our niche, we took our punches when we were found lacking.* The back and forth, the challenges, the emphasis on practical skills, ethics, zealous defense, reasonableness and effectiveness, motivated out views. What was not tolerated was steaming piles of bullshit for the cause.
Then came the early days of PD Twitter, overnight heroes who touched on the issues we had beaten to death years earlier with nary a tip of the hat. An initial annoyance was their pretense that no one, but no one, ever raised criminal law issues before they arrived on social media. It was reminiscent of the Marshall Project, whose origins were based on the premise that there was nothing on the internet about criminal law, and they would be the new Messiah.
But the initial annoyance by the blawgosphere missed the point, as swiftly became clear. They weren’t like us. They didn’t want to illuminate the law or the practice of law. They were there to push their cause, to rile up the simplistic but passionate throngs by any means necessary.
Here we were, cautious about being accurate about the law, fair about the facts, addressing not only the arguments that favored our position but addressing the arguments that didn’t. They suffered no such limitations. They were shameless, except it wasn’t for lack of shame but for believing they were justified in lying if it turned people to their side. Their goal was “justice,” so their means didn’t matter.
So what if they would tell stories of racial injustice that left out all the nasty bits that made their stories malarkey? So what if they twisted their tales to always make the cops, the prosecutors, the judges, the bad guys without mentioning what role, what failing, the lawyer played in this proclaimed heartbreaking outcome.
They told you it was all because of “systemic racism” rather than defendants who did bad things or lawyers who were inadequate to the job, and who would disagree but a racist? You don’t want to be a racist, right, and you certainly hate racism, right, and so racism it was. It had to be. All your friends said so, so what kind of horrible person could you be to doubt it?
And the leaders of this “movement” of PD Twitter gained prominence on social media, grew huge followings and became credible, not for anything they did, but for their zealous twitting of what their sycophants wanted to hear. As this happened, however, two issues that we, the old codgers of the blawgosphere, had faced years earlier, were ignored. The first was that when you talk about cases, about defendants, for the purpose of using them as weapons in your war against the cause, you make them targets, violate their confidences and turn their worst moment into a cause célèbre so that it follows them in perpetuity.
One of my cardinal rules was to never write about my clients and their cases. My writing was never to come at their expense, as they were the core of what a criminal defense lawyer does. But these were cause lawyers, “public interest lawyers” as they wanted to pretend to be, rather than public defenders. They served something bigger than mere mortals, the human beings they pretended to cry about as they sacrificed their clients’ interest on the altar of social justice.
The second issue was that they became addicted to validation, loving their prominence more than even their cause, and making themselves critical to their continued service. To be fair, this seems to happen with many people who gain the spotlight on social media, where they start out as “leaders” and end up subservient to their mob, so this isn’t a unique problem for the loudest voices of PD Twitter, but it’s not one they’ve managed to avoid.
And now, the winds have turned and are blowing a bit colder against them.
Many on PD Twitter have also been called out for “trading on the suffering of Black and brown people,” said Smith Futrell, cautioning that “just because you’re a public defender representing someone who’s experienced [the system,] it doesn’t mean that you’ve experienced that thing that you now get to tell.” As defense attorneys push advocacy in new directions and accept media opportunities, they are encountering many of the ethical questions journalists have long wrestled with: does the individual or the larger narrative take precedence? When does “storytelling” become exploitative?
No, the problem isn’t that they deceive people about the law, or they manipulate emotions by disingenuous stories. But those aren’t the values of the woke. And if you wonder just how bad it can get, consider one of the most prominent PD Twitter heroes.
Public defenders most often used to be asked “how can you defend that person?” Among a certain set, they are now more likely to be thanked for their work (the fandom extends to TikTok), and to use it as evidence of character, or of qualification. Seth Abramson was a public defender, as his 2006 contribution to The Iowa Review alludes (“You think your ears will bleed from out their drums”).
Better to have adoring fans than be right. Better to make the unwashed cry than worry about burning a defendant. But like all edifices built on a foundation of bullshit, they can only stand for so long before they come tumbling down.
*There were some monumental meltdowns along the way by blawgers, or wannabe blawgers, who were intellectually, ethically, emotionally or psychologically unable to handle the rigors of peer review. Ironically, some have reinvented themselves on twitter, where rigor goes to die.