The Color of Money For The Defense

In the Washington Post, Georgetown Prawf Paul Butler makes the obvious observation that having a substantial pool of money to fund a criminal defense beats the crap out of not.

Don’t believe the hype that Rittenhouse, who was prosecuted for homicide after shooting three people at a Black Lives Matter protest in Kenosha, Wis., in August 2020 was acquitted because self-defense cases are tough for prosecutors to win. More than 90 percent of people who are prosecuted for any crime, including homicide, plead guilty. The few who dare to go to trial usually lose — including in murder cases.

In the aftermath of the Rittenhouse acquittal, some are demanding that the burden of proof on the prosecution in murder cases be somehow lowered, as if that wouldn’t have some problems. Others call for the elimination of self-defense, because there would be no consequences there. To his credit, Butler does neither, and calls out such clueless nonsense as suggesting the problem here was that it’s just too hard for prosecutors to get a conviction.

But that isn’t because he has any sympathy for the defendant.

Rittenhouse’s $2 million legal defense funds enabled his lawyers, before his trial, to stage separate “practice” jury trials — one in which 18-year-old Rittenhouse took the stand and one in which he did not. The more favorable reaction from the pretend jurors when Rittenhouse testified informed the decision to let the teenager tell his story to the real jurors. His apparently well-rehearsed testimony was probably the most important factor in the jury ultimately letting Rittenhouse walk.

It’s unclear how much of that legal defense fund went to, or was available for, the defense. There were some sticky fingers in there. But even a fraction of that amount puts the defense in a far better position to be more effective than the defense in most cases. Between running moot trials, focus groups, paying investigators and jury consultants, there is an array of tools the defense will have available that have the potential to help. And a legal defense fund allows a defendant to retain the best legal talent available. Lawyers are not fungible and some are far better at trying a criminal case than others.

Whether all of these tools actually help is another matter. I’ve seen small fortunes paid to big time investigators that ultimately produce nothing of use. Same with jury consultants, which work brilliantly on TV but, in my experience, are high-priced armchair shrinks of no greater utility than your Aunt Gertrude, who hates everyone.

Butler notes that not every criminal defendant has the benefit of money.

Here’s where I am supposed to say that the issue is not that Rittenhouse had the funds to bankroll his defense but, rather, that other accused persons should enjoy that same benefit. To be sure, I do wish that each of the 10 million-plus people arrested in the United States every year — most of whom are poor people of color — actually were extended their constitutional right to effective assistance of counsel. Too many are forced to rely on underfunded public defenders or overburdened appointed lawyers — no match for the prosecutor’s budget.

The number is closer to 5 million-plus, and most are white, but let’s not quibble over misinformation. This assertion ignores that the vast majority of defendants aren’t charged with serious crimes and do receive effective assistance of counsel, mostly because there isn’t much to be done. Most defendants have no defense. The evidence against most defendants is clear, irrefutable and overwhelming. The prosecution’s budget is less the issue than the fact that they have a police department at their disposal, and they mostly take cases brought to them on a silver platter. Somehow, this eludes academics and activists, who only consider the high profile or controversial cases, and fail to consider the daily grind in the well of unspectacular prosecutions of unremarkable defendants.

That’s not to say Butler is wrong when the case at issue is serious, legally complex, defensible or controversial, and the defendant is left to the gentle mercies of a public defender or court-appointed lawyer. Or even worse, a bottom-feeding private lawyer, of which there are many. And that’s where Butler suffers from colorblindness.

Still, I’m okay that not every armed White man who kills people while playing the role of a wannabe cop gets millions of dollars to turbocharge his privilege. I am glad that the defense is not as well-financed for the three men on trial for murder in Georgia after they killed Ahmaud Arbery as he jogged through their neighborhood.

There is no rule of law that says people can’t donate to the defense of a black man or woman. The woke have donated promiscuously to the ACLU, so much so as to push it off civil rights whenever it could cost them a dime, so the problem can’t be that their tribe is too poor or cheap. They can give, and if they don’t, why not? How many new sets of curtains does the ACLU need?

But what Butler, as so many who believe that it must be all about the externalities because it can’t, if just can’t, be about the facts and law, manages to boldly assert that he doesn’t care about the ability of an accused to defend himself, or themselves as in Arbery, but about whether he likes the accused. And that, he argues, is based on their race. Oddly, he’s a bit derisive about the defense of a black man accused of killing a white man and woman, but OJ is in a class of its own.

Sometimes, the wealthy or well-funded get convicted despite having the resources to use every tool available to defend. Sometimes, the poor get acquitted despite having no one on their side except a public defender or court-appointed lawyer. To argue that money helps is banal, but shallow. Rich or poor, it’s good to have money, but money can’t buy you love, no matter what race the defendant. And if Butler’s grievance is that this white kid got too much money, then rally the forces to give it up for some other defendant. Money isn’t white, but green, and will be just as happy serving the defense of a black man as a white man.

16 thoughts on “The Color of Money For The Defense

  1. B. McLeod

    The post-verdict press included a report on Go Fund Me, noting that their normal policy is to reject fundraising for people who are accused of violent crimes, unless or until they are acquitted.

    So, at least one of the most common donor platforms is effectively unavailable where right to counsel is concerned. If some prominent public figure or political group doesn’t set up an independent donation drive, a defendant isn’t likely to have much luck. In the ordinary case, it isn’t going to happen.

    Reply
    1. SHG Post author

      There are a multitude of ways to make it happen other than go fund me. I realize you hipsters believe the world began with the interwebs, but there was life before AOL.

      Reply
  2. Damian Penny

    Ron Rosenbaum, acclaimed historian of Nazi Germany, is now pretty much coming right out and saying extreme-right wingers shouldn’t be allowed criminal trials and the presumption of innocence.

    The past five years have broken so many brains.

    Reply
    1. PseudonymousKid

      Cool hot take, but that’s pretty much not what the guy said. And this doesn’t have anything to do with the post, and something about you annoys me. Maybe it’s the big fat box of stuff I don’t care about in the middle of your comment. Or I’m jealous you got away with an otherwise prohibited link.

      Reply
      1. SHG Post author

        Is that what Rosenbaum is saying? That’s why I included the twit, so people can see for themselves.

        You’re right that it’s tangential to the post, but then Damian’s right that his brain is broken. You guys better learn to get along or I’m going to seat you next to each other at the kids’ table for Thanksgiving dinner.

        Reply
        1. PseudonymousKid

          I was more objecting to “pretty much” than backing up some nut on Twitter. He did magnanimously say he wouldn’t deny the Proud Boys a fair trial at least, so he isn’t advocating denying all “extreme right-wingers” a fair trial today. Whatever he’s saying it it’s pretty much not what Damian said. I had to click the link to find that out, which was a pain but at least I wasn’t met with a paywall like with Wapo or brother Damian.

          If I had a substack, it would be called The Kids’ Table and it would be better than Damian’s, clearly.

          Reply
    2. ljakaar67

      Probably just me, but I am surprised Rosenbaum, acclaimed historian, (his book the Shakespeare Wars sounds interesting) would cite RawStory, which doesn’t do original reporting, instead of NPR, which does.

      That seems relevant to me as the NPR piece seems to be a bit of well poisoning against anyone/everyone who thinks Rittenhouse deserved acquittal and celebrated any aspect of seeing that happen.

      Relying on two comments in a forum whose size is not disclosed, NPR headlines its report as “For far-right groups, Rittenhouse’s acquittal is a cause for celebration”

      Well, actually, for many groups, including groups liberals are a member of, Rittenhouse’s acquittal is a cause for celebration

      NPR’s “nut-picking” has just made it a bit harder for many of us to speak out in fear of being labeled as far-right Proud Boys, fascists, or Nazis.

      Reply
  3. Dan J

    Despite my already low opinion of people in general, I can hardly bring myself to believe that people are actually in favor of getting rid of self defense. People can’t be that stupid and shortsighted, can they?

    Reply
  4. Bryan Burroughs

    Donate to a poor black defendant? Are you friggin nuts? That would require them to take a chance on somebody. Who the heck is that gonna be? Definitely not a rape defendant, because Believe Women ™. An accused murderer? Waaaaay too much bad press for that. The gang-banger drug dealer? Get outta here.

    Picking any individual case to donate to requires research, to make sure you don’t get the “wrong guy.” It’s far easier to come in 10, 15 years later, when somebody else has done all the legwork for you. Plus, you’ve got the sob story of all that time lost, the poor “little guy” getting screwed by “the system,” all that jazz. It’s long after the press’s character assassination campaign has concluded, and most people have forgotten the poor sucker. There’s no risk that way, you get to look like heroes and save the day, even if the damage has already been done.

    These folks will decry the Central Park 5 travesty, but they’ll be damned if they take a chance to prevent the next one. Those f-ers might actually be guilty! You can’t make a mistake if you never make an actual decision.

    But Rittenhouse… He’s clearly guilty, clearly the “wrong guy.” It’s much easier to demand that the “wrong guy” not get a fair shake, than to take the time and the chance to figure who the “right guy” is. That’s how you fix “systemic problems.” Break the system for everyone, so now we’re all equally screwed.

    Reply

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