A flop. Round two Keller. She wins again.

Well, the big day came and went with nary a whimper.

Of course, it is my fault.  By calling for a strike without ascertaining local support I set the whole thing up for failure.  In my defense, starting up a new blog with a new idea required something, anything to generate some interest.  After all, there are a lot of blogs out there and there’s got to be some reason to pay attention to this one as opposed to thousands of others.

I’m left with the problem I would have had at the beginning.  I can keep track of judges and prosecutors who seem like good candidates for a strike, but without any sort of prominence for this blog I will have to pick them from other blog posts or media reports.  I can then post something and see if any lawyers from the relevant geographic area respond.  The likelihood that someone will respond is very low unless my readership expands significantly.  More patience is required.  That’s okay.  I have plenty of that.

More seriously, my concern at the outset was not with the judges that make news because they are bad in some way the media find worthy of reporting.  I am more concerned with the routine and unreported perfidy that occurs on a daily basis.  The lawyers know about these things, but the media largely do not report them for reasons of their own. This blog could really fill a void there.

There are two other important things about this that bother me.  First, for my part, I think I overdid the implied criticism of the lawyers of Texas in my first posts calling for a strike against Sharon Keller.  I meant it more as an exhortation to act, but it wound up possibly alienating the opinion makers who are going to be the backbone of any effort to bring off a lawyers’ strike.

Second, I think the reaction from some other bloggers was unduly and somewhat puzzlingly negative.  To some extent I think they are protecting their blogger turf, and would react negatively to any other blogger who came up with an idea they didn’t have, whether good or not.  Egos are involved:  the temptation is to declare an idea unworthy if you didn’t suggest it first.  It’s more of a temptation when the idea is a good one – as this one is.

And that, I think, is the bottom line here.  The arguments and objections that surfaced about this effort have been entirely unconvincing.  The nature of the problem – the disparity of power between police, prosecutors and judges on the one hand, and defense attorneys on the other, is beyond dispute, and no one disputed it.  The increasing inefficacy of more of the same is also beyond dispute.  No one suggested an alternative approach; no one even made an argument – nor could they – that more of the same will produce anything other than more of the same.

It’s important to call the malefactors out.  Blogs perform an important service in that regard.  But calling them out and exposing them, without a remedy in prospect, becomes tiresome because it is eventually seen – correctly – as pointless, unless something can be done.

Striking is what can be done.  It has been done in India.  It was successfully employed in Washington State.  And it can successfully be done elsewhere.

Lawyers have a special responsibility to correct a judicial system that has gone dangerously awry.  Complaint without an effort at correction, in addition to being tiresome, becomes a self-indictment at some point.  And we may be past that point.



Filed under Striking lawyers

4 responses to “A flop. Round two Keller. She wins again.

  1. I’m going to take one more shot at this.

    First, what happened in Washington state was a job action. In effect, the lawyers called a strike for higher pay and better working conditions. Aside from the fact that it was arguably (and the courts have actually said so) an anti-trust violation and a civil RICO violation, it was a classic union action by lawyers who were, technically, not unionized.

    But you’re not suggesting that lawyers in Texas should have struck for better pay and working conditions. You’re suggesting that they should have struck in order to do something about Sharon Keller. That is, I’m sorry, different.

    Now, let’s conduct a thought experiment.

    Lawyers refuse – not for a day, for 2 weeks (what the hell, let’s be bold) to appear in front of the Texas Court of Criminal Appeals. Imagine, not a single defense lawyer shows up for oral argument. Now what happens? Are the arguments rescheduled? (In every court I know of, if a lawyer simply doesn’t show up for argument, too bad, that lawyer doesn’t get to argue – but even if the court were to unilaterally decide to reschedule them all, so what?) Does Keller change her ways? Is she impeached?

    Let’s go further. For two weeks, no criminal defense lawyer appears in any court in Texas. That’ll teach Keller a lesson, right? Imagine that no client suffers. Those who might have gotten bailed out by diligent counsel are, instead, offered bond by trial court judges who feel badly for the clients so decide to do their lawyers work for them. But still, what happens to Keller? Does she change her ways? Is she impeached?

    The system can be ground to a halt if lawyers all refuse to participate in it. If you could get all lawyers to refuse to plead out any case and insist they all go to trial, for instance. But some defendants would get screwed along the way, and though you’d stop the system, it’s not all that clear what you’d accomplish. But a day won’t do that.

    There are places where criminal defense lawyers can exercise what is, in effect a peremptory on a judge. There are judges in those places who just about never see a criminal case. Do they become better judges? Do the others (whose criminal case loads of course increase under those circumstances) force them to change their ways? Nope. The defendants may benefit from the system, but the option doesn’t change a thing.

    I appreciate your willingness to think outside the box to find a way to call out bad judges and try to do something about them. More power to you, and keep it up. And yes, write about bad judges and bad government officials of all sorts. Speak truth to power.

    But aside from the question of whether anyone could generate enough support for a significant enough strike to shut down a state’s system even briefly (in Washington, it was lawyers who took murder appointments in a particular county; PDs in some counties in Missouri have refused to take more cases; whether they can do that is in the Missouri Supreme Court), I don’t see how you achieve anything beyond having done it.

    The court’s reaction: So what?

    You say all the arguments against your plan have been “unconvincing,” and I suppose I can’t disagree that they haven’t convinced you. I’ve found them pretty compelling, but then I’m a blogger so maybe I’m jealous that I just write about stuff and litigate rather than having had the idea of calling for a strike. Or maybe I’m right.


    • Yes, maybe you’re right. And maybe I am. It will have to be attempted to find out.

      One of my heroes of the law – besides Jeff Gamso, that is – is Benjamin Cardozo. His stuff is just sublime. He seemed to be no respecter of persons, ruling on principle every time. They don’t make ’em like that anymore.

      Modern adjudication is crass. Judges see themselves as power arbiters. Principle has nothing to do with it. The results have been disastrous. It’s like Rome around the time of Caligula or Nero.

      I can’t change that, and neither can you. There’s a serenity prayer: accept the things you cannot change. But serenity is not passivity. You go on from there. You ask: even if you can’t change one thing, what can you change?

      Refuse to plead out any cases and go to trial every time? Talk about putting your clients at risk. Miss a court appearance because you’re on strike? What are they going to do to your client when you’re not there? They require your presence to put the screws to him. You show up gambling that they won’t put the screws to him because you will make a good argument. Please. Cardozo is long dead, Jeff. More’s the pity, but we’re back to those things we cannot change.

      Let’s not rehash where we’ve already been. I’ve conceded that a strike in a particular judge’s courtroom wouldn’t work; you have to expand the area and multiply the targets for retaliation to deter that retaliation, because it would become impractical. Deterring them wouldn’t mean they wouldn’t go for it, of course. They might try anti-trust. They might call it unethical this or unethical that, as if they knew what the word meant. For all I know they might try criminal this or that. I’ve got news for you, though: in some instances they’re doing that already.

      We imprison more people per capita than any other nation on earth, by several orders of magnitude over any similarly situated country. That’s ridiculous, for a country that describes itself as “free”.

      We’ve got lots of lawyers. What are they doing? Largely, holding their clients’ hands as they get marched off to gaol, many times in situations where they know – they know – that it couldn’t be more wrong. Enough already.

      Several days or a week of striking as I have suggested might well get rid of Keller, with a lot less risk to clients than other more favorably received proposals, such as everyone going to trial. Even if it didn’t get rid of her, it might make her, and other judges, afraid that it would.

      If you cross a certain threshold they’ll take your arguments seriously, and your skill and effort will be meaningful every time. That threshold is, unfortunately, that they are afraid that if they don’t take your arguments seriously you can damage them. That is what drives this proposal. I wish it were not necessary, but it is. At least it’s non-violent. History often records that nothing meaningful changes until there is violence, but lawyers have a special role in pre-empting that.

      It’s really, really bad out there. We’re not far from a collapse of civilized conduct. You have clients. You practice law. You know exactly what I’m talking about.

      I didn’t make the world. I’m just trying to deal with it as it is.


      • Like I say, I appreciate the effort to think in a different way (in different ways?) about how to fuck with the real (-) world system so that those charged (ostensibly) with making it work without fear of political consequences or favoritism for friends and power and money would actually try to do that.

        In fact, there are such judges and there are such elected officials. There always have been and probably always will be. I’m not sure the percentage has changed all that much. The Warren/Brennan court may have been a high water mark for many criminal defense and civil liberties issues (though not all), but you’ll have a hard time convincing me that it’s because the justices then were more principled than the justices today. They had DIFFERENT principles, but that’s not quite the same thing, and they engaged in result-oriented jurisprudence just as much.

        But I’m going back to the question I asked in the comment above because I’m still looking for some reason to believe that you’re onto something specific rather than simply on to SOMETHING. Why would a strike change anything about Sharon Keller? (Put aside the fact that I think you’re simply wrong when you say they can’t fuck our clients if we’re not there. If we, en masse, don’t show up, they’ll rewrite the rules to let them fuck the clients.) But what about Keller? Who would give a rat’s ass? The people of Texas like the way she does her job. And the courts (not every judge, but the courts in general) don’t much care about criminal defendants’ rights. You think they’re going to start caring because criminal defense lawyers say Keller is a disgrace and we won’t defend our clients unless you start treating them the way we think you should?

        Sure, there’s an empirical question here. We can’t know with absolute certainty what will happen unless we try it. But I can’t think of any reason to believe it would change anything, and I can think of a lot of reasons that it might hurt (including the courts taking revenge on our clients). That makes the experiment seem too risky to try.


        • I certainly agree about the Warren/Brennan court. I have no illusions about them. Cardozo was a different matter, though. Ironic that he replaced Holmes on SCOTUS. Holmes pretty much epitomized modernism in the law; Cardozo was kind of tradition’s last gasp, before the hellish and thorough politicization of the law in the remainder of the 20th century.

          But I digress. Why would a strike change anything about Sharon Keller? It would be a countervailing force, the operative word being “force”. What is the countervailing force now? There isn’t one. Keller, and thousands of other judges like her, run roughshod whenever they please. This is the result of encountering no resistance, whereas they encounter relatively fearsome resistance the other way, as the Harold Baer incident shows.

          I don’t know if Scott Greenfield has specifically proposed this, but he has certainly implied something along the lines of defendants resisting by not accepting plea bargains en masse, chiding lawyers who plead their clients, as if the problem boiled down to a lack of cajones when facing the state on behalf of a client. I’ve seen a lot of that kind of chest thumping bravado, and it’s silly, and it can really hurt clients. Any lawyer who isn’t afraid of what the state can do to his client is just being obtuse, even stupid.

          How then to resist? Well, what is it that they want from you? Figure out what that is and take it from them, or threaten to.

          That’s not difficult. What they want from you is: represent your client zealously (but not too zealously) within the rules we set, and we will fuck him over if we feel like it (and we always feel like it, especially when you’re too zealous). Why do they want that from you? Because blatantly fucking over your client would be readily seen as – well – blatantly fucking over your client. They need the “color of law” to function credibly, and that’s not just because of Gideon. Defendants were represented in Soviet show trials, too. You give them credibility when you participate. You can take it away.

          Respectfully, I think your risk analysis is way off. In the first place, the downside is very limited. Why are you so worried that if lawyers strike the clients will get screwed? Like they aren’t getting screwed now?

          Then, you seem to believe that they will find a way to screw clients over even if you’re not there, but I can’t see how you’re thinking that through. What do they do? Replace you – then screw the client over now that you’re gone? They’ve just proven you right and given you the moral high ground. They’ll never, ever do that. I don’t see how anyone can disagree. The whole point of the show is to get that verdict of “guilty”, to reinforce that the state is not just arbitrary power, but morally justified. You threaten to discredit their guilty verdict in advance. That’s the whole ball game, arguably.

          What else can they do? Let the client go unrepresented? You think they’ll repeal the 6th amendment?

          On the other side, you appear to be underestimating the potential impact. Maybe it’s the flip side of your flawed risk analysis. You worry about the risk on our side to the point where you don’t see it from their side, even though their risk is much larger. They believe, more than you or I do, that the whole thing is a lie, an illusion, a game in which they are the designated winners. You and I lament that; they embrace it.

          But illusions and lies are vulnerable to exposure. They know that, too, better than we do, precisely because they have embraced them and built their careers on them. They have to be worried about exposure, and that’s what a lawyer’s strike threatens to do. It doesn’t undermine just one guilty verdict, it undermines all of them. It undermines the robes, the “In God We Trust”, and all the other trappings that make their positions valuable to begin with. It’s a dagger pointed right at the heart of the beast.

          Because they know all this they will be afraid and intimidated.

          Moreover, if the strike is targeted at a specific judge (as this would be), the dynamic in favor of the strikers is further enhanced. The other judges say: if we throw her or him under the bus, we reduce the risk to ourselves and our whole game. Once you put that dynamic in play, the odds for a favorable outcome improve. You are betting on their poor character. This is usually a winning bet.

          Then later, because this dynamic will have played out once, it will be easier a second time and each successive time. Judges will be afraid to be targeted once one of them has been felled.

          Are there potential pitfalls and dangers? Sure. Most likely to the lawyers who strike, not the clients.

          But if they bring it off, their lot and that of their clients will be greatly improved. So will the courts. So will the profession.


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