While I am a fan of the site and I believe it has argued the points very well, I must say I think it is wrong on each and every point.
I note as a preliminary matter that once again, there is no counter proposal. It is acknowledged that the system is “corrupt and dysfunctional”. All right. What then? Another conference?
“Responsible leaders” don’t “experiment with people’s livelihood or the fate of defendants.”, says Grits. That sounds good but it’s way off. I’m not engaging in “leadership”; I’m gathering information, picking a date and disseminating it. I don’t presume to “lead” other lawyers. They know better than I do who and what they’re dealing with. They’re going to tell me, not the other way around.
Beyond that, every day practicing criminal defense law is an “experiment with people’s livelihood” and “the fate of defendants” and the deck is stacked. I don’t imagine this will unstack it. It might move the deck in that direction somewhat. More than another conference, if we’re lucky. The alternative, so far, is to continue with the same remedies, if any, that have admittedly resulted in a “corrupt and dysfunctional system”. There’s no reason to believe that could ever yield a different result.
Grits takes issue with the potential effectiveness of “direct action”, though he admits that there are more plentiful examples of success in the labor contract setting. Yet this proposal is most closely analogous to that. This is not mobilizing the general public or a broad political constituency around a political goal; this is an appeal to a discrete, relatively small and already well educated group of players. There are about 83,000 lawyers in Texas. I’m just educated-guessing, but it’s likely only about 10,000 or less engage in day-to-day criminal defense. That’s a small enough group that a lot of them know each other. And if they refused to participate in numbers, even briefly, that would cause enormous problems, unlike gathering at the prison protesting an execution, no matter how many people you got.
Word would easily get around with the right outlets. After that, each lawyer would have to decide for himself, based on his own assessment of what is to be gained and what the risks are. Criminal defense lawyers are peculiarly suited to that kind of decision. They make them every day. And they’re used to the prospect of serious consequences, too. If that alone stopped them from acting they wouldn’t do anything.
The “end game”? If we give even one judge trouble, not to say precipitate a resignation, every other judge – political animals all – will be afraid to get targeted. Right now the judges are afraid only of the police, their unions, the prosecutors, the insurance defense bar, other government agencies and their lawyers. They are not the least bit afraid that ruling against the weaker litigant will have an adverse impact on their career – quite the contrary – and in that they are certainly right.
Every experienced disfavored litigant’s lawyer, in their heart of hearts, knows that this imbalance is the single biggest problem he has to deal with. It is the biggest problem with the system. You can’t even it out by reducing judges’ fear of the more powerful players; you can only even it out by increasing their fear of the less powerful.
Being less powerful, though, what are their options? This is one. I have yet to hear of another. They do it in India, and elsewhere. Are lawyers in those countries irresponsible and cavalier about their clients? Do they spend years organizing and building coalitions before they even try? Do the critics of this idea therefore subscribe to American Exceptionalism? Even in Texas, where Judge Keller embarrassingly sits in judgment of others on the state’s highest court of criminal appeals?
Criminal defense lawyers are prone to reflexive nay-saying. It’s part of their nature. But when things are bad enough maybe they can get past that. In Texas you have Judge Keller. Is that bad enough for you? If it isn’t, what would be?