Are (Bad) Law Stories The Legal Lost Cause?

It’s a slog to read because of its tediously pretentious language, but Dahlia Lithwick’s latest effort at Slate is to argue that giving “racists,” by which she means those people that everybody she knows believes are racists so no reason to belabor the point, a fair trial proves that the legal system exists to protect white supremacy.

Each of these three trials rests on the knife’s edge of an existential, real-time American conversation about race and violence—one that touches on ongoing debates about policing, guns, hate crimes, and vigilantism. But as each of the three cases progress to trial, each also reveals how every legal decision—indeed every twist and turn of legal language itself—rests on ideas about neutrality, due process, and fairness, and how these ideas always seem to buckle when confronted by real questions about race. We are asking the justice system to solve intractable racial justice problems that no other institution—not politics, not the media, and not academia—can resolve. No wonder these choices being made in courtrooms about language and law and competing claims of victimhood are going so poorly.

There are three upcoming trials, and they are, according to Lithwick’s intrepid reporting, proving how awful the legal system is because they rest on ideas about [Trigger Warning: Racist Language ahead] “neutrality, due process and fairness.” These are, we’re told, litmus tests about racism and not about whether the defendants committed the crimes for which they’re charged. It’s about their beliefs, their personas, their motives, their being racists.

Each illuminates the ways in which even the most basic precepts of the justice system rely on whiteness, and its suspicion of the very existence of racism, as a proxy for neutrality or objectivity.

Yet, here are lawyers and judges arguing and ruling about what will provide defendants in these high profile cases with fair trials.

Ultimately, these cases are profoundly about race. But the requirement that we must start from a position of “neutrality” about racism tells us almost everything we need to know about the supposed neutrality of the legal system.

If a lawyer wrote this post, the crux of the argument might have been on the once-trusim that the test of our legal system is whether we are able to give even the most hated defendant a fair trial. Except Lithwick went to Stanford Law School, clerked for a 9th Circuit judge, so she knows better and couldn’t possibly be writing a story that is so fundamentally wrong, outrageously biased and entirely full of shit, albeit wrapped in long and lofty words to conceal that she has one, and only one, point: People she hates, in these cases, people who she’s decided are racist, do not deserve due process, fair trials or to be convicted not on how much she hates them but on whether the prosecution can prove beyond a reasonable doubt whether they committed the crimes charged.

And lest anyone forget, even the reporting about the judge’s “victims” ruling has been grossly misreported, with newly progressive prosecutors claiming this common thing has never happened before, and claiming that the judge ruled that the defense can call the “victims” “looters and rioters,” even thought that wasn’t the ruling, which was that they could only do so if they proved that to be the case.

And sometimes, well-intended but ignorant reporters latch onto legalish language and conflate unrelated things that sound somewhat similar when they touch on a hot issue. In Detroit, a judge dismissed charges against a cop who fired a rubber bullets at a reporter during a BLM protest. Already, this involves cops (hated), reporters (loved), rubber bullets (confused) and BLM protest (sacred). Part of the rationale was that the press pass was too small to be seen, but the kicker was “qualified immunity.”

The judge agreed with Debono’s attorney who argued that police gave an order to disperse before the shots were fired. Archer also said the press badges being carried by the journalists were too small for officers to see. She ultimately determined Debono had qualified immunity under state law.

To a lawyer, this should immediately set off the red flags. QI isn’t “under state law,” but law invented by the Supreme Court. More importantly, QI has nothing to do with criminal charges, but is a defense to a § 1983 action. The facts can be found much further down in the article.

The judge ultimately concluded Debono was protected by state law MCL 750.527, which grants an officer immunity from prosecution if someone is injured or killed while an officer is performing lawful duties. Archer found Debono was granted protection by the law since he was part of the DPD Mobile Field Force ordered to clear the streets after an unlawful assembly was declared.

So it’s not qualified immunity at all. It’s nothing like qualified immunity. It’s got nothing to do with qualified immunity. But hey, it’s just one dopey clueless reporter who heard words he doesn’t understand and used them improperly because he’s not a lawyer, even if readers might not realize that they are reading nonsense from a guy who has no clue what he’s talking about. It would be entirely different if a lawyer said this, particularly a lawyer with a significant following who believe that he knows what he’s talking about.

To be fair, Greg kinda corrected himself when his careful headline-level reading take was challenged.

There are different flavors of qualified immunity for different things

The civil lawsuit shield is a Supreme Court-created doctrine to guard against federal 42 USC §1983 lawsuits

Michigan also has a statutory version, MCL §750.527, that says cops can’t be criminally charged

Better, but still not close enough for accuracy. A public defender twitted that it was normal for a judge to preclude the prosecution from calling the deceased “victims” when that was the core issue of the case, and was attacked by her mini-tribe for heresy. Orin Kerr questioned when it became acceptable in the legal academy for prawfs to use their cred to spew unserious arguments as if they were advocates instead of teachers. Here, I’ve tried my best to adhere to my own rule not to make people stupider about law, whether it serves to support something I agree with or not. Has this become the legal lost cause, a handful of us trying to fight back the tide of legal misinformation, whether deliberate or negligent, that the public, and more than a few of the guild, no longer cares to hear?

16 thoughts on “Are (Bad) Law Stories The Legal Lost Cause?

  1. R. Jamrozik

    Makes you pine for the days of the mid-2000’s when Lithwick was bleating the exact same tedious point about the evil defense bar censoring courtroom language, without the patently insincere “racial justice” frippery, which somehow was never even a fleeting concern for her before this year, in nearly 20 years of public writing.

    (Not posting a link due to site rules, but search for “Gag Rules” published by Slate on June 20, 2007)

  2. Skink

    Dear Dopey Dahlia, you say:
    “A similar erasure is taking place in Charlottesville, where the plaintiffs in the civil trial against white supremacists have had to dust off the Ku Klux Klan Act of 1871 to enforce the civil rights of victims of racial hate in order to hold armed Nazi sympathizers to account. ”

    That there KKK Act that you toss in the fire is Section 1983. Even you know it ain’t getting dusted off, since about a billion of those cases passed through during your clerkship.

    Then again, you double:
    “Yet jurors were being dismissed for cause for merely suggesting that white supremacist defendants were “evil” or, in the case of a potential juror, for admitting that “I lived here in this town. … I knew people that were assaulted, people were hurt. That poor girl is dead.”

    Did you really go to law school?
    ———–
    Scott, this isn’t “misinformation.” That would be a mistake. She knows Section 1983, which provides the legal mechanism to bring claims for constitutional violations in the Charlottesville case, was originally part of the KKK Act. She tossed the Act in like a hand grenade because, racism. That’s not a mistake.

    She also merges the basics of trial: proof and verdict and impartial jury. She knows there are no victims until verdict and she must understand the simple restriction on juror bias. But she wants the same measures for different protections. So if there’s a stricken biased juror, there should be victims. that ain’t no mistake, neither.

    Nope, that’s no misinformation. It’s a purposeful pander to those that don’t know better and should be educated.

  3. Hal

    Scott,

    You just don’t get it. Diversity is strength, but diversity in opinion/ thought cannot be tolerated in pursuit of a diverse enlightened utopian society. Why is that so hard to understand?

  4. B. McLeod

    The press can’t be happy until the courts are functioning as just another facet of the outrage machine. They have already beaten numerous prosecutors into attempts to try defendants for their possible political beliefs. Now it only remains to Perskey the judges into line, and we can proceed with the summary burnings.

  5. Elpey P.

    She must have hated the ACLU back in the day as much as the fundies did. This reads like the tortured logic of infamous court decisions that were overturned. Some people are so committed to a moral cause (or at least to pandering with it) that they can’t conceive of how a villain who is corrupting or exploiting it would sound, so they proceed to enact it.

    1. SHG Post author

      But the ACLU came around to the correct view of making enumerated rights secondary to emanations and penumbras.

  6. Bryan Burroughs

    How did I know you would drag TGD into this when you started bemoaning a lawyer falling for it.

    1. SHG Post author

      It concerns me when lawyers get a bit too caught up in either confirmation bias or the inability to concede that they made an obvious mistake, particularly when they have worked very hard to create an online persona designed to attract a certain tribe. That’s where it is particularly critical to be accurate, as it’s far too easy to make a lot of people stupider.

    2. Sgt. Schultz

      I’m not surprised, but I don’t consider TGD to be a particularly deep thinker about such matters as, well, law, so the fact that he regularly tends to be shallow and/or wrong comes as no surprise. He’s very online, but he’s just not very thoughtful.

      On the other hand, I expected Clark to be the better example, as he’s clearly smart enough to know better than to shamelessly pander simplistic nonsense to idiots and yet that’s who he’s chosen to become. He’s a disgrace and a huge disappointment.

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