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.