In a fascinating op-ed in the New York Times, former executive director turned columnist, Bill Keller writes some sobering truths about our embrace of hate crime legislation in light of the deaths of Tyler Clementi and Trayvon Martin.  Much to the surprise and consternation of many Times readers, Keller doesn’t toe the line.

IN 2009 President Obama signed a federal bias crimes law named for the victims of two gruesome 1998 atrocities: the young gay man who was tortured, lashed to a fence and left to die; and the black man chained to the back of a pickup by white supremacists and dragged until he was dismembered. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act joined a 40-year accumulation of statutes declaring that crimes committed with a mind full of racial spite or anti-Semitism or homophobic hatred should be punished more severely than identical crimes committed for greed or vengeance.

Today the notion is embedded in our culture. Almost every state has some variety of hate crime law.

The murders of Shepard and Byrd were horrific. As an impetus for trying to wipe out a state of mind that gives rise to the motivations to commit such shockingly heinous acts, it’s hard to imagine anything stronger. But as is invariably (and thankfully) the case, conduct this bad is rare.  Prejudice is not.  And so we have a cultural notion, with some very serious law backing it up, in search of culprit.

From this vantage point, Keller recognizes that a well-intended goal doesn’t necessarily mean that it’s a good idea.

But the fact that it is constitutional and commonplace does not quiet the nagging sense that hate crime legislation resembles something from an Orwell dystopia. Horrific crimes deserve stern justice, but don’t we want to be careful about criminalizing a defect of character? Because our founders believed that democracy requires great latitude for dissent, America, virtually alone in the developed world, protects the right to speak or publish the most odious points of view. And yet the government is authorized to punish you for thinking those vile things, if you think them in the course of committing a crime.

Many see these laws as resembling something from an Orwell dystopia, but Keller’s reasoning similarly leaves a nagging sense that it’s about to fly off the rails.  While the final sentence speak to punishment for “thinking those vile things,” he sneaks in a characterization about “criminalizing a defect of character.”  

Keller later explains, relying on a  seminal article by Heidi Hurd,

Back in 2001, Heidi M. Hurd, a professor who comingles law and philosophy, wrote an article entitled “Why Liberals Should Hate ‘Hate Crime Legislation.’ ” The thesis sounded contrarian; hate crime laws evolved out of a great liberal cause — civil rights — and have been propelled by activists and politicians most of us would call liberal…Hate crime laws, she wrote, crossed that line: “The law now regulates not only what we do, but who we are.”

Hurd takes a huge, and unsupported, leap when she characterizes prejudice as “who we are.”

The distinction Hurd makes — convincingly, I think — is that when you penalize intent you are punishing matters of choice. One can choose not to pull the trigger, not to throw the rock, not to steal the purse.

“You can’t choose not to be prejudiced or biased — at least not willy-nilly, on the spot,” she told me, when I called her the other day at the University of Illinois.

And this is where Keller follows Hurd off the cliff, crashing into the intellectual gorge below.  We can indeed choose not to be prejudiced or biased.  We are senscient beings, to a greater or lesser extent, and have the capacity for thought and reflection.  We can learn. We can come to realizations that prejudices ground into our heads from the moment of birth are wrong, nonsense we can overcome and surpass. 

Skin color may be immutable. Prejudice against skin color is not.

Keller’s point about the criminalizing thought, even bad and evil thought, without regard to how that manifests in our conduct is absolutely right. We remain a bundle of prejudices, essentially all of us with suspicions about people unlike us, that create our default state of mind when considering those “others.”  Admit it or not, it frames our thoughts, which in turn guides our conduct. And yet we maintain throughout the capacity to decide whether to shake hands with the guy whose skin color is different or shoot him, to decide he is a potential friend or threat.

The notion that we are not responsible for the conduct that follows our prejudices is absurd. We make choices every second of every day of our lives. We can choose to live with a mind so clouded by hatred toward others as to believe what was done to James Byrd is acceptable. We can also choose not to. The ability to think is one of the distinguishing features of humanity. That some fail to use it doesn’t mean they can’t.

Had Keller stuck to the premise that criminalizing thought rather than deed was at the core of his nagging sense that hate crime laws are wrong, his foundation would be firmer.  To absolve people of their prejudice by calling a character defect, a if there was nothing they could do about  it, isn’t necessary.  People walk around thinking bad thoughts all the time, but choose not to act upon them.  People walk around thinking bad thoughts, and then realize that they’re wrong and change their thinking. 

And then there are the people who committed heinous, disgusting crimes against Shepard and Byrd. Forget punishing them for their thoughts; punish them for their deeds.

Imagine you’ve completed a course of rigorous academic study in communications and find, as your tassel is moved to the right, that there is no work awaiting you on the other side. Or you have gainful employment at a socially productive enterprise suddenly cut short for no reason of your own doing. You have debts, obligations and nowhere to go in the morning. What to do?

The first obvious choice is to turn to a life of crime. Not the nasty, violent stuff, but the Jean Valjean sort.  The other option is to become a legal marketer, where thin qualifications are met by a day or two at a conference and a few hours on twitter. With a list of ten simple things, usually available online for cut-and-paste usage, you can become an expert and demand your  seat at the table at any major law firm.

That’s it?  Oh no. It’s hardly that simple, as Laura at the  Legal Shakeup explains. There are also rules of etiquette with which you must comply.

I must say…I was disappointed that people I consider colleagues took to Twitter to voice their negative opinions. Fine, you don’t like a presenter. Maybe a session was a joke, and you think you can do better. Or, maybe you’re listening from afar, and feel like you need to poke fun (I mean, who doesn’t have unlimited time to do this? [sarcasm, people]). It’s one thing to give criticisms, but entirely another to rip someone to shreds. And to do it on a platform where meanings are easily misconstrued. Online communities make it easy to “hide” behind a profile picture or as “anonymous,” but it’s cowardly to do so to hurt another human being.

I hope these people realized that senior members of our organization were “listening.” And so were the presenters who worked to put their presentation together – that doesn’t change, good presentation or bad. And these users who decided to publicly attack – their reputation is on the line because of the things they decided to publish. No one thinks you’re any funnier for making a mean-spirited quip about someone else.

Laura is rather harsh in her denigration of behavior with which she disagrees, but haters gonna hate, and Laura hates anyone who isn’t happy.  Happy, you see, is the key to legal marketing success, not merely for the individual who must be loved by all, but for an industry that is so flimsy that it can’t withstand the slightest scrutiny.

But doesn’t she say that criticism is fine, as long as you don’t “rip someone to shreds?” 

As marketing professionals, especially legal marketers, we have to be very careful about how we’re perceived. It’s hard enough to work for lawyers, who have ethics they must abide by; now pile on some negativity and it’s likely you’ll be talked to about it. Why make it harder on yourself? Your colleagues, your lawyers, your law firm aren’t going to find the humor and may be quick to judge. Social networks still haven’t “earned” their rightful place in law firms, so it’s pertinent that you put your best foot forward, and not do anything that may jeopardize the hard work you’ve put in. Not only the hard work in your realm, but the work all of us in legal marketing have collectively put in.

Laura doesn’t really mean it. Criticism isn’t only not fine, but it’s negativity. Negativity is evil. People will talk about you.  And lawyers (who have this stuff called “ethics,” which apparently is the devil to legal marketing’s angel) will reject that marketers have “earned” (her quotes) their rightful place in law firms.  To her credit, Laura appreciates that the legal marketing industry (or its practitioning “professionals,” used in the sense of an occupation in search of respectability) isn’t well perceived.  But it’s not because they don’t work hard, but irrelevant stuff like those darn ethics and those mean-spirited negativity people.

While one might think this was a reaction to some untoward stimuli, Laura was  ready and waiting for the attacks in advance of the Legal Marketing Association’s annual conference in Grapevine, Texas.

NOTE:

There are a few “haters” of legal marketing who will be trying to interject their thoughts in our stream. Fine, let them. Engaging them isn’t going to do anything but egg them on. They’re not worth it. So block them if you feel like it, don’t reply, and let their thoughts fall on deaf ears. Seriously. It’s not worth it. They have nothing better to do than pick fights.

Maybe those awful “haters” have one thing better to do than pick fights.  While Laura promotes a cult of positivity, it’s the mortal enemy of a culture of integrity.  As the bulk of lawyers struggle to understand the implications of the internet, of social media, of whether their failure to join the race to the bottom will negatively impact their practice, Laura would have them only hear happy thoughts about legal marketing.  After all, how cool is it to make a grand announcement that you are Number 1!!! in a poll created by the kid you pay to teach you how to twit. (Shh! Don’t mention the “pay” part.)

Most telling is that if the cottage industry of legal marketing had any juice, it would be capable of withstanding scrutiny, from within and without, and nice people like Laura wouldn’t feel compelled to admonish the haters to shut up and stop trashing her beloved source of income.  But she does. And it doesn’t.

Lawyers should understand and become part of the technological future, both of society as well as the profession.  But not because they’ve been fed a bunch of nonsense by happy people whose dreams are crushed by the honesty of the handful of people who actually know what they’re talking about.  And the worst part is, some of this very small, very select, group are legal marketers themselves, the ones who actually have a clue what they’re doing and understand the significance of legal ethics in any course  of action taken by lawyers, aren’t happy at all.

Nobody, but nobody, expected a different outcome after oral argument in Florence v. Board of Chosen Freeholders.  After Tom Goldstein’s painful oral argument, it was a fait accompli.  And yet, the decision of the Supreme Court majority sends chills down the spine.

From the New York Times :

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

It’s not that the rationale behind permitting routine strip searches of anyone being placed in general population is unsound. It’s true that anyone could, theoretically, secrete contraband inside a body cavity. It’s true that smuggling contraband into jails and prisons is a very real problem, and a heck of a side business for guards who like nice cars. 

But that the Supreme Court based its ruling on deference to the screws is shocking.  Who are they to question the judgment of prison officials? They are the defenders and protectors of the Bill of Rights, the special Nine who tell the prison officials that they don’t get to do anything they please. They are the ones charged with setting limits, with watching the watchers, with limiting the discretion of government folks whose interest in making their job easier doesn’t trump the right of human being not to be subject to every degradation they come up with. They are the Supreme Court. They have failed us.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Like who, you ask? 

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

And what was Justice Kennedy’s response?

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

If this strikes you as absurd, as in what good it would have done had this been the case when Timothy McVeigh was ticketed for driving without a license plate, then join the club.  If the point is that bad dudes are sometimes stopped for small things prior to committing heinous crimes, so what? There’s nothing about it that suggests a strip search, had they been arrested and placed into general population, would have unearthed a bomb.  Perhaps it’s just the idea that we would all feel better knowing that McVeigh had to squat and cough before he blew up a courthouse?

But more importantly, this means that tens of thousands of Americans who, through the greater glory of our legal system find themselves placed in jail over trivial (or mistaken, or even non-existent) matters will be subject to one of the most humiliating and dehumanizing experiences a person can endure because a justice can dream up two (count ’em, two) examples of really bad people who got traffic tickets. 

This is not a case about hardened criminals who have been arrested for serious crimes being able to skirt inspection as they bring weapons or drugs into prisons.  Nobody argued that should be the case, though there remains a decent argument that even serious crimes in terms of penalty, such as stock fraud, really don’t offer much of a reason to conduct a cavity search.  But that wasn’t on the table.

This is about the people who pose no meaningful threat to anyone, who in a society with better control over their police would never be in the position of being put in jail, being left to the discretion of their jailors.  It’s about the unpaid speeding ticket (even if it had in fact been paid and some grocery clerk neglected to update the computer), the protesting nun, the guy nabbed for contempt of cop, being put through the wringer because they can.

And now, they can. Because Justice Kennedy doesn’t think he and the four others who told him to write an opinion think they have any business second-guessing prison officials.  And because the last man to speak on all of our behalf, to argue this point so that our wives, husbands, daughters and sons won’t be needlessly, pointlessly, irrationally, subject to this fundamental degradation of common human dignity, failed.

Should you find yourself in the clutches of a screw who tells you to drop your pants and squat, remember that it didn’t have to be that way.  It shouldn’t be that way.  And yet it is. Now you know who to send the thank you note to.  This is an utter disgrace, and hopefully, in a decade or two when the composition of the court changes and a competent advocate steps forward to address this issue again, we can undo the shame of this decision.

While the subject of the Individual Mandate hasn’t launched a thousand posts around the criminal blawgosphere, it’s caused the murder of a million words among legal academics. No surprise, given its controversy and importance. In the aftermath, it’s also given rise to a new round of lawprof mudwrestling. 

Via Ilya Somin at Volokh Conspiracy :

Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of Prawfsblawg suggests that such advocacy blogging (at least by legal academics) is unethical.

Advocacy is unethical? It might sound ridiculous to advocates, as it’s what comes naturally to us.  But it’s not merely advocacy, but advocacy unsupported by the belief that their position is legally correct rather than merely the writer’s desired outcome.

At the same time, Horwitz is right to suggest that it is wrong for an academic to publicly “assert… with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence” for the purpose of influencing public opinion. Doing so attaches the veneer of academic respectability to an opinion that isn’t actually backed by the scholar’s expert judgment.

There’s the hitch, that scholars who advocate for a position, even if it’s not really supported by their “expert judgment,” undermine the “veneer of academic respectability.”  In other words, they’re selling out their lofty position as scholar to achieve a desired end.  Kinda like being a prosecutor, I suppose.

The reason this is problematic amongst lawprofs is that their “opinions,” according to themselves, “shaped the narrative.”  After all, if a lawprof says a law is constitutional, doesn’t the Supreme Court pull out its big old rubber stamp?  While trench lawyers count votes at First Street, the justices count up the articles by lawprofs and whichever side gets the most votes wins the day.

Dave Hoffman called baloney.

One small quibble.  I hear repeatedly that debates in the blogosphere “sharpened” arguments against the mandate, and the liberal academy’s “groupthink” weakened the pro-mandate case. We may never know. But, frankly, this seems like exactly the kind of thing that conservative academics – long suffering and marginalized – would like to believe (and liberals fully believe about viewers of fox news!)  But whatever honing (or comforting) the blogosphere has done, it strikes me as highly unlikely to have influenced Justice Kennedy’s sense of his place atop history, his views about the contours of the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” and Justice Roberts’ consequent 5-4 anti-ACA or 6-3 pro-ACA opinion.  And isn’t that all that matters, in the end?

To put this more simply, no one cares what the warring tribes of scholars have to say except to the extent that someone can cite to them in support for a facile way to explain the result desired by the Court.  That they huff and puff amongst themselves is fun to watch, but the arrogance of believing that they “shape the narrative,” and the rest of the world watches and learns at their bended knee makes an outsider chuckle. 

The academics are aware that judges don’t read their brilliant law review articles, much to their chagrin. Do they seriously suspect that Justice Kennedy is lurking on Volokh Conspiracy nightly to figure out which side to vote for? 

The notion of their opinion being truly more worthwhile because of their veneer of academic respectability is one that frightens me enormously.  Imagine if this were true, and important decisions were left in the hands of a bunch of smart but  “youthful” folks who were so seriously lacking in real world experience that they couldn’t be trusted to find a courthouse, no less figure out what to do once they were inside.  They live a cloistered existence, largely talking and fighting among themselves except when the odd reporter calls for an opinion about a subject they know nothing about, yet can’t wait to offer their views.  Shaping the narrative is all the rage.

The question remains why it’s unethical for a scholar to advocate for a position she supports. On a practical level, are lawprofs not allowed to believe in a greater right and wrong, and seek to promote what they believe is right?  Even if they recognize the validity of arguments against their belief, as does pretty much any thinking person even though they lack the respectability of a scholar, does that preclude their belief that their desired position enjoys sufficient, if not greater, validity to be worthy of their support? 

The suggestion that supporting and advocating for positions they support is somehow improper strikes me as a mechanism to silence the opposition, to quell disagreeable views. If a scholar advocates a position which is laughable, then let other laugh at him for it. But that others disagree with a lawprof’s argument doesn’t crack the veneer of respectability, or implicate respectability at all. We’re allowed to disagree. Even smart folks are allowed to disagree.  Even smart folks are allowed to put greater stock in a position that may not be the orthodoxy.

To the extent academics have any impact on the narrative, it seem unethical (if that word has any real implication in espousing views in which one believes) to remain silent or state a position that supports the opposite of what a scholar thinks is the best course.  Put on your big boy lawprof pants and support the view that you think is right, even if other guests at the party think otherwise.

A few years ago, I wrote that we either stand for something or stand for nothing, with an homage to the J.H. Blair coal miners of Harlan County, Kentucky.  Are lawprofs better? There’s nothing unethical about standing up for what you believe in.

While the killing of Trayvon Martin by George Zimmerman has give rise to an important conversation about race, guns and killing in America, it’s largely been theoretical. What actually happened has been a moving target, with the police being nearly useless in providing any meaningful answers due to their cursory investigation.

As the video of Zimmerman after the incident emerged, the narrative shifted away from his story of being beaten, his nose broken and his head banged against the sidewalk.  The images on the screen showed none of these injuries.  There were reasons why that might happen, though there are far better reasons why a broken nose would look like a broken nose, and why there should have been blood on his shirt.

But the  Daily News reports a story via the  Orlando Sentinel about one of the most contentious aspects of the encounter, the scream.  Did the scream come from George Zimmerman, as he claims, or Trayvon Martin, who can’t speak for himself because he’s dead?

While it would be in everyone’s best interest to keep their house clean, the protection of Section 230 of the Communications Decency Act is without question the single most important factor that allows the flow of communication on the internet.  This, apparently, is killing Connecticut’s paragon of virtue, partyless Senator Joe Lieberman.

The word just out is that Lieberman is sponsoring a bill to amend Section 230. Well, amend is too kind a word. Emasculate strikes closer to home.  The  McIntyre v. Ohio.

Regardless of how you feel about bullying, Happysphere, or any other variation of partially censorious speech, we will all fall together if Section 230 imposes liability on website owners for the comments of others. Don’t let this happen.

H/T Brian Cuban

Update:  Well, it was April 1st, you know.

Once it gets a foothold, it’s hard to stop.  First Alabama. Then Connecticut. Now Arizona. From Eugene Volokh (again). Both houses have passed  Arizona HB 2549, and it awaits signing.

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

It’s grown tedious discussing what’s wrong with such laws. Use a curse to characterize a supporter of this law on your iPhone and you’ve committed a crime?  What a bunch of assholes. Oops, guilty.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else.

I’m not big fan of using profanity in general, but only because I believe we can express ourselves without it.  Aside from that, it’s not as if I haven’t heard it, don’t occasionally use it, or start to shake when my delicate ears/eyes are assaulted. 

The question is why these laws, so obviously unconstitutional to pretty much any lawyer not blinded by the desire to shut others up, have become the unquestioned darlings of legislatures everywhere?  Most legislatures are lousy with lawyers, elected in small part because of their education and skills in handling such questions as the constitutionality of their enactments. Are these the stupidest lawyers around who have finally found a place where legal ability has no place?

What are the chances that some judge somewhere is goind to share the legal ability of his legislators and uphold a law like this?  Even if it’s eventually held unconstitutional, how many people will be prosecuted, maybe punished, for the exercise of speech?

And if this happens, how many blawgs will be banned in Arizona as continuing criminal enterprises?

Free speech is under full scale assault in the United States, and there are a great many anti-bullying lawprofs and lawyers, not to mention well-intended members of the public, who are so vociferous about bullying (whatever that is) that they will not shed a tear over speech.  Don’t think this is going to be an easy problem to fix, or that we aren’t facing a very real problem.

First Alabama. Now Connecticut. It’s growing, like fungus. Laws arising to guarantee that no one shall utter a harsh word and hurt anyone’s feelings. Enforced with the might of the state and some quiet time in prison. Volokh provides the text : 

The Raised Bill No. 456, sec. 2 would provide, in relevant part:

(a) A person commits electronic harassment when such person, with intent to harass, annoy or alarm another person, transmits, posts, displays or disseminates, by or through an electronic communication device, radio, computer, Internet web site or similar means, to any person, a communication, image or information, which is based on the actual or perceived traits or characteristics of that person, which: …

(2) Has a substantial and detrimental effect on that person’s physical or mental health;

(3) Has the effect of substantially interfering with that person’s academic performance, employment or other community activities or responsibilities;

(4) Has the effect of substantially interfering with that person’s ability to participate in or benefit from any academic, professional or community-based services, activities or privileges; or

(5) Has the effect of causing substantial embarrassment or humiliation to that person within an academic or professional community.

According to the Courthouse News, the judgment of $2.5 million against Crystal Cox has withstood a motion for a new trial, championed by some of the bigger guns in blawgosphere,  Eugene Volokh and the Electronic Frontier Foundation . While the law in the case may be problematic, the decision itself reflects one of the most fundamental and common problems with developing law; It’s based on the outlier.

Remember when the Virginia Bar Association found that Horace Hunter’s blog  would require an advertising disclaimer?  Many shook their heads in dismay, as the free speech hero was smacked.  But then, Horace Hunter didn’t have a blog. Sure, he called it a blog. Sure, the Virginia bar called it a blog. But it was no blog, and it had nothing to do with what others in the blawgosphere did. It was nothing more than blatant advertising masquerading as a blog.

Same for Crystal Cox.  She calls herself an “investigative blogger.” If she called herself a “savior,” she would have a better chance of being Jesus. I won’t link to her because there’s nothing she’s ever written that deserves to see the light of day. She’s a blight on the internet, an affront to any person who has the slightest concern about the insanity that appears regularly in a google search.  She is not like us. 

Anyone with a keyboard and internet access can claim to be a blogger.  There is no test for character and fitness. Or sanity.

Aside from representing herself at trial, which certainly didn’t help matters, and without reference to the utterly bizarre and wholly unfounded allegations she claimed, there’s a special twist that needs to be understood.

 “[T]he uncontroverted evidence at trial was that after receiving a demand to stop posting what plaintiffs believed to be false and defamatory materials on several websites, including allegations that Padrick had committed tax fraud, defendant offered ‘PR,’ ‘search engine management,’ and online reputation repair services to Obsidian Finance, for a price of $2,500 per month,” Hernandez wrote.

“The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media.”

The judge clarified his position on the media status of bloggers, which was an issue that made this case a cause célèbre among some free-speech advocates.

“In my discussion, I did not state that a person who ‘blogs’ could never be considered ‘media.’ I also did not state that to be considered ‘media,’ one had to possess all or most of the characteristics I recited,” Hernandez wrote.

The judge said he focused on lack of evidence that would establish Cox as a member of the media.

New York criminal defense lawyer Nathan(s) Burney has a  lengthy and thoughtful post about a rarely discussed problem with the legal system and its various participants. The gist is that our system is conceived based on an assumption that the key players, from defendant to juror, prosecutor to cop, are rational actors, but they’re not.

[Nobel Prize winning economist Danny Kahneman’s] Prospect Theory shows that people aren’t rational. They’re more risk-averse than they ought to be, when choosing between things posed as “gains.” When options are presented as “losses,” people are prone to take more risks.  A year added to a sentence is significantly more valuable to a client than a year whittled off, though they both consist objectively of the same 365 days.

This has HUGE implications for criminal law, beyond the tactics and strategy of a particular case. Our entire jurisprudence is built on the presumption that people, in general, are rational actors.

In the course of explaining how this impacts the critical players in the system, criminal defense lawyers were somehow left out of the mix. Are we the only rational people in the mix? Come on. In a perfect world, we’re detached and unbiased, capable of making unemotional assessments of both the case, our client and our adversaries. And ourselves. But then, in a perfect world, everyone else is a rational actor too, so there’s no basis to reserve to ourselves such a lofty place.

Nathan(s) has done an excellent job of discussing how the Prospect Theory affects the decision-making of defendants, jurors, prosecutors and police, and I urge you to read his post. There’s no purpose in my repeating it here, so this post will be limited to the player left out, the criminal defense lawyer.  In his example of a defendant failing to rationally assess risk, Nathan(s) states:

Your client’s looking at 10 years after trial, but you figure a 70% chance of acquittal? Rationally, going to trial is the equivalent of taking 3 years. If the offer is 7, the rational decision is to go to trial. But your client doesn’t see it that way. His starting reference point is that 7-year offer. He just sees those extra 3 years if he loses at trial, and they far outweigh the 4 years he objectively saves by going to trial — and they even outweigh the 7 years he saves if, as is probable, he wins.

My very first client asked me the question that’s been repeated thousands of times since: what are my odds of winning? Nathan(s) example uses a 70% chance of acquittal. In almost 30 years, I’ve never been able to answer the question that well.  Back then, I used to say, “I’m not Jimmy the Greek; I don’t do odds.” While experience has allowed me to make gross assessments, such as “excellent” or “not a chance,” to suggest that we possess the ability to put such a fine point on the percentage is, in my experience, ludicrous.

There are so many variables that go into the ultimate result that are unknown at the time a decision on whether to take a plea has to be made that it can often be a blind guess. Whether the evidence will play out as the prosecutor suggests; whether the jury will be swayed by emotion, anger, hatred, bias, sympathy, empathy, and the rest of the panoply of feelings that trump facts in almost every trial.  We usually don’t have a firm knowledge of the prosecution’s evidence, though few realize how little we have to work with until they find themselves in the defendant’s chair.

And then there’s our own internal issue, the belief that we, gladiators, hired guns, fighters for freedom, can pull it off. Criminal defense lawyers tend to believe in themselves and their abilities to make magic happen as an occupational necessity. It’s impossible to stare down the government if you don’t. At the same time, this belief can easily skew our vision of the defendant’s chances at trial. We wrap ourselves in our cloak of invincibility and believe we can do anything.  We find out when the verdict comes in how right, or wrong, we are.

On the other hand, it is often in the financial self-interest of the criminal defense lawyer to advise the defendant to cop a plea.  You’ve been paid, and should the defendant take the offer, the case is over. No more work to do. As I’ve explained more times than I care to remember, when defendants complain afterward that their lawyer was never willing to take the case to trial, when they retained a guy with a fee that was a fraction of what other lawyers, the ones who would be just as happy to take a case as not, charged, did they not realize that the lawyer never intended to try the case? Do the math, guys. At least this lawyer’s fee was rational, albeit utterly deceptive, unethical and irresponsible.

To the extent that criminal defense lawyers have the capacity to make a neutral and detached assessment, that comes with experience combined with competence. After years of working in the well, the criminal defense lawyer has a basis upon which to provide some insight to predict the outcome.  The rookie, on the other hand, has nothing. Without sufficient trial experience, it’s impossible to assess the likelihood of a positive outcome. It’s pure bluff and swagger, with absolutely no foundation.

A smart young lawyer will run it past a more experienced lawyer, but the prediction still has to be tempered by the lawyer’s trial skills, a serious unknown. Whether the rookie will tell his client that he really doesn’t have a clue because he lacks the experience to offer anything remotely resembling a valid assessment is another ethical question.  Self-assessment is notoriously unreliable.

As Nathan(s) asserts, we have constructed a system that assumes all the actors are rational, when the reality is that all the players suffer from some degree of color blindness.  There are better and worse, and that goes for everyone involved. But the criminal defense lawyer is no more immune from irrationality than anyone else in the game, and the realization of this deficit is critical to overcoming our bias and providing the most meaningful advice and counsel to our clients as possible.