Sunday, October 17, 2010

Because Anger Isn't Enough

And because there's enough danger to go around.
As he usually does, Scott Greenfield hits the target in the right places.
Lawyers on Strike, the new blog I wrote about here, is written by an anonymous person claiming to be a lawyer.  (It's the internet, without more information on him/her than the pen name Atticus - which Scott points out is "the name commonly adopted by the self-righteous as the keeper of Justice" and that Atticus Finch would not hide from the fray but put himself on the line - the author could be a lawyer or a fishmonger or the Fuller Brush Man, if there are still Fuller Brush Men, or a rocket scientist working for NASA.)  The author plans to identify (by undisclosed and perhaps permanently secret criteria) particularly evil judges and then call on all members of the bar to join in a strike against them.  Presumably the idea is that this would force them off the bench.
I said that it's difficult to imagine how that would work.  I can't, after all, refuse to pursue my case just because it's in front of a judge I don't like.  Aside from the whole contempt of court thing, and the ethical violation bit, there's the fact that my client suffers.  Scott notes all of that, adds that criminal defense lawyers aren't good at collective action (he actually references "feral cats") and adds the point about what's good for the gander.
If we can influence the bench this way, so too can the prosecution.  What would happen if the prosecution refuses to appear before judges who are, in their opinion, too favorable to the defense?  And get real about it, as the prosecution is invariably better capable of concerted action than the defense, as they hold the purse strings over their line.
As I say, he's right about all that.
Ah, but the frustration.  And the yen to call the question, to make a difference.
A few weeks ago, I attended a program put on by the New York Times at which Daniel Ellsberg and Max Frankel spoke about the Pentagon Papers and how Ellsberg got them to the Times and negotiated their publication and what the Times did and how.  All this while the Wikileaks releases from Afghanistan and their echos were still on the front pages.  Also there, not on the stage, but introduced - as specially invited members of the audience - were Frank Serpico and others less known by name but who also put themselves on the line, at great personal and professional risk, to expose broad and deep abuses of the public trust.
Listening to Ellsberg and Frankel, just being in the room with them and the others, was a reminder of what people can do when they act.  (And Ellsberg went after his hosts for not displaying the same degree of willingness to expose itself in order to expose truth as it had those decades ago.)
I'm no starry-eyed dreamer.  I'm not naive enough to believe that just because this Atticus wants to take on the system that it will be possible.  Or that this Atticus will make wise choices.  Or that it wouldn't have unintended and horrific consequences so that our clients would suffer more than they do now.
Every plan I've heard over the years for criminal defense lawyers to take collective action in court - most commonly involving refusals to waive time or to resolve any case without trial - is doomed to failure because it can't be done without sacrificing the clients who would benefit from waiving time or taking a deal, or who just want to do it because dammit, that's what they want.
I think this is no different.
But Atticus is angry.  And looking for a way.  It's more than most of us do.  As I said, it's worth keeping an eye on.  Hey, if he (?) can figure something out . . . .
Then again, Tim McVeigh was angry, too.  And he figured something out.
Of course, he was wrong about more than just how he expressed that anger.


  1. There are definitely still Fuller Brush men AND women. I am one.

  2. Glad to know it that some things are still as they were (though modernized considerably, I assume). And I certainly didn't mean to deny women the job.