Greenfield: an open letter

Scott Greenfield is finally exhausted.  He’s soliciting opinions from others about just how 4th amendment rights would be vindicated, since the courts have abandoned that role in practical terms.  He himself has run out of ideas.

He probably doesn’t mean it.

In a lot of ways I can’t say enough good things about Scott.  Not only has he spent a long career fighting the government case by case and client by client within the parameters the government sets, a grueling siege that might long ago have felled lesser men; he also incites important debate on important questions with his blawg, and draws attention to the otherwise often ignored abuses of power that have unfortunately become routine in the criminal justice system.

But I have to gently suggest something to Scott.  After about thirty years playing an approved role in it, haven’t you become one of the owners of the system?  If it’s as bad as you seem to think, what responsibility do you accept for that?

You often complain about other lawyers, too.  Particularly the younger ones.  The slackoise.  There’s a simple question you should answer, though:  is the system being handed to them better or worse than the system that was handed to you?

Be honest:  it’s worse, no question about it.  Much worse.  Just to take one example, when you started there was a 4th amendment, or at least a semblance of it.  Whatever remained of it was lost on your watch.  Now you live with that, and so do a lot of other people.

Has your approach, and that of your generation of lawyers as a group, been fundamentally flawed in some way?  The results suggest as much.

Maybe it was impossible to stem the tide of the last thirty years, and if you hadn’t made the effort things would have been worse.  That’s a fair objection.  Still, given that it was impossible thirty years ago it is all the more clear that it is impossible now, if nothing changes.  If we don’t try something else.

You’re dimly aware of this.  Maybe not so dimly.  After all, you’re no dummy.

A few months ago you encouraged and expressed support for lawyers in Arizona showing up at a lunch time rally to protest Sheriff Joe Arpaio, et al.  You were enthused that maybe 300 lawyers showed up.  This was “huge”.  It “made a statement”.

There’s an interesting contrast here.  Sheriff Joe’s cadre was upset that one of their own was held in contempt and ordered to jail.  They didn’t call for a lunch time rally; they engaged in a strike, albeit a limited, one day event.  Kind of like the one I have called for in Texas on November 17th.  But I digress.

The lawyers’ “lunch time rally”?  Well, it was more than a little late to the party:  it took place in December, 2009; the Washington feds had been investigating Arpaio since March.  A federal grand jury had been investigating him since 2008.

Still, it was something.  If criminal defense lawyers are indeed like “feral cats”, getting 300 of them to do anything together is an accomplishment.  But overall, far from being “huge”, it was a pretty poor showing from our side.  Like an afterthought.  It’s not even mentioned in Arpaio’s wikipedia page, although lots of other things are.

Why is an event that was “huge” in the eyes of Scott Greenfield – experienced, tough, smart-as-a-whip Scott Greenfield – not even worthy of a mention on Wikipedia, which regularly revels in the most obscure trivia?

Believe it or not, this is an important question.  For lawyers.

Just as an aside, the Maricopa County deputies’ “strike” consisted of twenty deputies calling in sick.  Not 300.  Twenty.  But that is mentioned on Wikipedia.

The “statement” of 300 lawyers did not equal the “statement” of 20 sheriff’s deputies in terms of perception and impact.  Sheriff’s deputies are more than 10 times more important in public perception than lawyers?  It’s a fair conclusion.

What if, instead of a lunch time “rally”, the lawyers of Maricopa County had simply refused to appear in any court and effectively shut the place down for a day?  Let’s set our sights low, just so we can get started.  Do you think we’d at least rate a Wikipedia entry?

You’re casting about for ideas and then someone comes up with one.  You don’t like it because he uses a pseudonym, and it’s “Atticus” to boot.  That’s silly.  Lawyers don’t need to be led like a bunch of school children.  They don’t need a leader for this.  They should stop looking for one.

Others have worried about clients’ welfare in the event of a strike.  But for a one day shutdown excepting, of course, anything that absolutely, positively has to be done that day?  What, you guys have never asked to adjourn an appearance for a sick kid or some other pressing matter?  There’s no real threat to clients’ welfare under what has been proposed here.

But the system is a constant threat to clients, present and future.  It plays favorites.  It doesn’t follow its own rules, and it’s shameless about it.

Why does Judge Jacobs and others like him favor the government?  It’s very simple.  The government has adorned him with honors, given him his vaulted position, and if the government is not worthy than perhaps neither is he.  He takes questioning of the government personally.

Also, and more importantly, he pays no price for it, and neither does anyone else except those who we know don’t count in advance.  Increasingly in recent years, and quite alarmingly because this is the next step in the trend, people who “don’t count” include lawyers.

Yet the system needs lawyers.  Can’t function without them.

You can’t personally do much about Sharon Keller and neither can I – other than what I am doing.  But the lawyers of Texas can.

You should help on this, not hurt.  I wouldn’t have to do this at all if you had done a better job over the last thirty years.



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