There is nothing wrong with a little skepticism among lawyers. Lawyering is serious business. It takes training, thought and effort. The hardest kind of effort: mental effort.
Indeed lawyers are trained skeptics, especially criminal defense lawyers. In each case they confront a situation where there has already been a significant consensus: at least two highly respected public institutions, the police and the prosecuting attorneys, have agreed upon a narrative that is almost always adverse to the interests of the person the CDL is sworn to represent. The job is to find weaknesses, holes, flaws in that narrative, overturning it entirely if possible.
Thus it is not surprising that any new effort or new idea presented to criminal defense attorneys will be met with skepticism. That’s what this blog is. And that’s what has happened.
Scott Greenfield thinks the pseudonymous tactic rules the effort out in advance; Jeff Gamso thinks I’m “angry”.
Norm Pattis, whose writings tend towards a depth and subtlety that are unusual in blogs, may or may not have been referring obliquely to this blog in his latest post where he refers to “snarky internet communication”, “every malcontent with access to a computer”, and talks about lawyer-bloggers “striking” against twitter.
Regardless, I plead not guilty on each count.
First, I’m not angry. At least, not particularly angry. To the extent there is some anger here, it’s justifiable. The Sharon Keller thing should make any lawyer angry. Any lawyer. Including conscientious prosecutors.
Second, I have described the reasons for anonymity, and there has been no response taking issue with them. In any event, those reasons fade as the success of the effort increases, along with the feasibility of maintaining anonymity: it would not be difficult to find out who I am if anyone was determined to do that. I have stated that I will identify myself promptly and completely in the event of a successful strike, in which case anonymity vanishes as an issue. Let’s not make more of this than it really is.
Overall, it is fair to question the motives of a self described but anonymous lawyer blogger, but in this case it’s putting the cart before the horse. One thing no one has done is to take issue with a strike directed at Sharon Keller, or to take issue with the idea of striking generally.
Well, Greenfield did, a little, but not on the merits. His argument was that CDL’s never agree on much of anything and have the cohesiveness of feral cats, which is generally a valid point but it goes to the pragmatic concern of how, or whether, a strike would work, not whether it’s justified or should be done. Or at least tried. And the first part of the argument is wrong, at least in context: I don’t think there is any CDL who wouldn’t agree that Keller should not be a judge, and that she’s a central component in a train-wreck of a state criminal justice system.
One other thing. Mark Bennett and Scott Greenfield are making hay about a mildly amusing video posted by a prosecutor ridiculing criminal defense lawyers. Neither of them touched on a more serious underlying issue: the facile contempt behind it, on the part of a public official who can, as matters stand, inflict society’s greatest opprobrium – and worse – upon the individuals he targets. It is a grave mistake to imply that incompetent CDL’s are a serious problem in the system; they may be a problem here and there, but comparatively speaking they’re a problem that is easy to address.
What is far more difficult is to dislodge the animus behind that video. And that is a problem of far greater concern because its origins lie in the intractable disdain often felt by the strong for the weak. Since it does not, at bottom, flow from an assessment of a CDL’s competence, it is not limited to incompetent CDL’s.
And unlike even the most brilliant CDL, the prosecutor who posted that video is likely to be a judge some day.