What Scares Criminal Defense Attorneys

The title of this post is perhaps a bit inaccurate. After all, I’m just one criminal defense attorney. So what I’m writing about today is about something that actually I can only know for certain scares me — and perhaps a few other attorneys with whom I’ve discussed things like this in the past.

But, who knows? Maybe it will inspire other criminal defense attorneys to chime in on the comments.

Or, maybe it will just inspire idiots to chime in and tell me how I’m wrong, because — after all — I just “defend criminals.”

For my part, I guess I can plead “guilty as charged” to that comment, sometimes. The problem is, though, I can’t really do that until after my clients are convicted. Because prior to that time, they’re just “accused people,” or “people who have been accused of crimes.” If you want to be more hardcore, you could call them “suspects.” Police and judgmental law-and-order types prefer “perps” — because that’s the really cool way to say “perpetrators.” It makes you sound–well, actually, it makes you sound stupid.

Of course, the problem — part of the reason it makes you sound stupid — is that “perpetrators” are people who did something. So we’re right back to not knowing if I defend “perps” until they’re convicted.

After a conviction, we can look back and see if I defended perpetrators. You’ll still look stupid for saying “perps.”

What scares me, though, is the willingness of many Americans to deem others “criminals,” or “perpetrators,” or “guilty” — in other words to assume the conviction — before the conviction.

But it’s not just this willingness to assume conviction before the conviction. It’s the abject ignorance of such individuals, which almost always makes reasoning with them pretty much impossible. 

I don’t think I’d really mind, so much, an ignoramus asserting the guilt of another individual prior to hearing all the evidence, if they were nevertheless willing to hear and see the evidence and be open to the possibility of having their minds changed before pronouncing the sentence.

And I’m sorry if my use of the word “ignoramus” here bothers anyone. I just can’t think of any nicer label for someone who decides the guilt of another individual based upon their feelings, without hearing all the evidence, and then makes up reasons why they are right to decide the guilt without hearing or seeing the evidence.

This is something that, frankly, boggles my mind.

Perhaps I should tell you what provoked this little tirade today….

Sometimes, despite the fact that I keep trying to get myself to stop, I get sucked into debates discussions responding to ignoramuses on Facebook. It starts off seeming almost like a debate or a discussion, but I quickly learn that it’s just someone ejaculating idiotic statements about their unchangeable feelings onto a web page.

And that’s exactly what happened today in a discussion of the George Zimmerman–Trayvon Martin Internet mindfuckfest.

Let me interrupt this post to state that I have not been reading every article I can get my hands on about the George Zimmerman–Trayvon Martin case. In fact, I’ll admit that I’ve read probably less than three or four articles regarding the case, and all but one was from when it first happened. As Scott Greenfield pointed out in a post this morning,

Many criminal defense lawyers studiously ignore cases that catch the public’s attention. They just aren’t that legally interesting, even if the facts or issues give rise to popular passion. And so it’s been for the trial of George Zimmerman for murder 2º in the killing of Trayvon Martin.

I therefore have not formed an opinion regarding the potential guilt, lack of guilt, or innocence, of George Zimmerman.

What I do know is that a whole lot of other people have, and are willing to express their opinion, which opinion is almost always based upon some of the most ignorant statements I’ve ever seen regarding the potential guilt or innocence of an accused person.

I may lose some friends over this, but I’ve actually already tried being nice in responding to comments, and now I’m going to blog about the abject stupidity that seems to have permanently embedded itself into the American psyche. I mean, really, was the mass of humanity always this stupid? Or is this — as I hope — something new, and potentially fixable?

At any rate, if it costs me friends, then so be it. As the saying goes, with friends like that, who in the world would ever need enemies? I mean, seriously, if your reasoning processes are that scrambled, it’s going to be hard to enjoy talking to you about anything more than your feelings at any given moment, anyway. And even then, all I’ll be able to do is smile and nod, because your feelings are based on—shit, I don’t know what they’re based on any better than you do.

Which is to say I don’t know if they’re based on anything. They just are. And they’re hideous. You and people like you scare the living crap out of me, because you make me realize just how unsafe the world really is. You’re the kind of people who would get upset and beat the crap out of a ham sandwich for having too much mayonnaise on it, screaming obscenities, as if the ham sandwich were to blame. (And you’ll do this even if you’re the one who made the sandwich!

One person I was talking to kept saying that George Zimmerman is guilty of murder because he followed Trayvon Martin.

Uh…wha?!

George Zimmerman may well be found guilty of murder. For all I know — because I don’t know — he may have actually wanted to murder Martin. He may have planned to kill Martin. He might have — as another brain-dead Facebooker thought — followed Martin “because he wanted to kill somebody.” I have no idea.

But I do know that George Zimmerman is not — not in any rational universe — going to be found guilty of murdering Martin just because he followed him.

And that doesn’t change, even if the 911 operator told Zimmerman not to follow Martin.

Because following people, by itself, is not illegal. It might be a lot of things — maybe creepy, maybe based on prejudice, maybe coincidence — but it’s not, by itself, illegal.

So someone — I’m trying not to say mean things about him, even though I can’t believe what I heard — responded to me by saying,

I get drunk. I drive my car. I kill someone. I didn’t intend to kill someone but that’s what happened. I’m guilty of causing that person’s death because of my reckless and irresponsible behavior. Zimmerman is guilty of causing Martin’s death by his own reckless and irresponsible behavior….

I’m pretty sure I remember the comment being worded differently — more along the lines of this:

I get drunk. I drive my car. I kill someone. I didn’t intend to kill someone but that’s what happened. Zimmerman followed Martin. He killed him. It doesn’t matter if he didn’t intend to kill him.

That wording is not exactly correct. But the original comment has been edited to read what I posted first above, and my memory is that the connection was being drawn between the drunk driver getting into the car, and Zimmerman following Martin. Which was why I responded with this:

The analogy doesn’t fit, for numerous reasons. For starters, it’s illegal to drive a car while drunk, even if you don’t kill someone. It’s not illegal to follow someone, even if you intend to kill him. (Yep, that’s right. It’s not the following that’s illegal; it’s the killing. At least, that’s the law in California and [appears to possibly be the same in] Florida. I didn’t check every state[, but you can look here for more information if you want].) But, hey, I agree with you — only the laws you want to believe in, or create, count — you’re the final arbiter of what’s right and what’s wrong.

The final sentence of my response was directed at what appeared to me to be a general attitude that it doesn’t matter whether under the law Zimmerman should not be found guilty. He’s guilty. Period. End of story.

But the kicker, for me, was the next comment:

That may be true but it doesn’t change my opinion. Not even a little bit.

Earlier in the “discussion” — god, what’s the right word for something as bizarre as this futile exercise in education? — that same person had stated:

I don’t give a rat’s ass what Zimmerman’s motivation was. He was told to back off. He didn’t. He killed the kid. The whole thing comes down to Zimmerman continuing to pursue someone after being told not to do so. Guilty.

That’s right. My friend — who now has royally scared the shit out of me — and several of his cronies, or supporters, or whatever we should call them, firmly believes that whether or not a man is guilty of murder “comes down to” his “continuing to pursue someone after being told not to do so.” That alone makes him guilty.

Let me reiterate because I know a lot of people who are challenged when it comes to reading anything longer than a tweet are going to be reading this post today: I do not know if Zimmerman is guilty of murder. I do not have an opinion on that issue. The reason I don’t is that I have not been reading all the rumors, sensationalized stories — which I call that because of headlines I’ve seen; and near as I can tell, the sensationalism is coming from both the pro-Zimmerman and pro-Martin sides of this yellfest — and I have not been watching or listening to the trial.

So maybe Zimmerman will justly be found to be guilty of murder. I’m not expressing an opinion on that.

My concern is the attitude that fosters a willingness for us to grab our pitchforks, and make judgments — judgments that we will later refuse to change regardless of what is said, regardless of what we may see, regardless of what any evidence may show, because they “may be true but [don't] change [our] opinion.”

Let me finish off this rant by saying, again, that people who think like this scare the crap out of me.

They are at least a significant part of the reason why so many innocent people take plea bargains. They are the reason why so many innocent people are in prison. They are the reason why exonerations of innocent people are so very hard.

And they are the reason why so many more actually innocent people remain yet to be exonerated.


About Rick

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also writes at Fresno Criminal Defense.

Comments

  1. You’re not alone.

    What your post made me recognize was that it’s a two prong process. First, conclusions based on feelings rather than facts. But second, that people become absolutely adamant about their conclusions, as if it’s their life personally that’s involved. They seem willing to fight for the death over something about which they know essentially nothing.

    The Dunning-Kruger Effect comes to mind.

  2. If you want to risk your brain exploding, take a look at some of the articles (this, for example: http://gawker.com/will-george-zimmerman-get-away-with-murder-757850043 ) pushing… I don’t even know how to explain it.

    I took the time to watching the closing arguments and the State has done a terrible job of meeting their burden. Granted, Florida is a bit screwy when it comes to the burden on self defense (it doesn’t shift, so the State must disprove the claim of SD) but they didn’t even come close to that. Instead, they spent time yelling curse words at the jurors. They couldn’t even string together a reasonable narrative, while the defense stuck to logic, reason and evidence. It was truly one of the most bizarre things I’ve seen in a long while.

    Legal Insurrection has been posting updates on the trial, including the videos. They’re worth a look.

  3. One of these days, I need to switch my blog over to threaded comments.

    To Scott: That’s pretty much how it looks to me. It surprises me, though, that while knowing essentially nothing, they’ll insist that the actually have reasons for their beliefs, rather than just admit that it’s how they feel. Dunning-Kruger — I should have mentioned that in my article. Thanks for bringing it up.

    To Mark: I’m not really wanting to dig into the facts of the case. With everything else I have to do, it’s just another criminal case in my mind. The only thing that makes it interesting to me is that it’s become another in a string of trials where we have a group of jurors listening to actual admissible evidence in court, who will be instructed on the law that’s applicable to the case, and we have a whole bunch of spectators hanging out in the new, improved (and now more appropriately referred to as the) Colosseum — the Internet — who just want to see the lions rip apart the accused. As I said, I have no opinion on guilt in this case, and am not personally concerned with that particular issue — at least not at this point in time. I don’t expect to become interested in that, only because I’ve other things to do. Besides, it’s a criminal case outside my jurisdiction, so I’m not even competent to comment on the particulars. Thanks for the link, though! And for commenting!

  4. Brenda A. Linder says:

    Like the Goldschlagger people say, “Be Afraid…be Very Afraid!” These are the people who make up our “jury pool.” No wonder we feel as if we are drowning -

  5. The problem of trying to disabuse people holding opinions based on feelings rather than reason was considered by J S Mill at the beginning of his essay “On the Subjection of Women”:

    “The very words necessary to express the task I have undertaken, show how arduous it is. But it would be a mistake to suppose that the difficulty of the case must lie in the insufficiency or obscurity of the grounds of reason on which my convictions lie. The difficulty is that which exists in all cases in which there is a mass of feeling to be contended against. So long as opinion is strongly rooted in the feelings, it gains rather than loses in stability by having a preponderating weight of argument against it. For if it were accepted as a result of argument, the refutation of the argument might shake the solidity of the conviction; but when it rests solely on feeling, the worse it fares in argumentative contest, the more persuaded adherents are that their feeling must have some deeper ground, which the arguments do not reach; and while the feeling remains, it is always throwing up fresh intrenchments of argument to repair any breach made in the old”

  6. Mike Hamilton says:

    If you look at socio-biological responses in other species for things like “cheating” (where cheating is defined as doing something completely selfish at the expense of the community), typically the punishment is pretty severe. Our animal psychology works in a very similar manner – the group mentality is to “purge” the “wrong-doer”. Humans have over time had the sense to try their best to pull emotion out of the picture by adding legal process to the mix. This makes a lot of sense based on the fact that you cannot “undo” the punishment.
    What bothers me in general though is vigilante justice empowers one or more people into acting is if they are enforcement, judge, jury, and executioner regardless of due process. That being said, one could paint such a picture of Zimmernman but just as easily one could paint the same picture of those that automatically assume his guilt.
    I think the scenario presented by Zimmerman is dubious at best but sans-evidence and in support of due process my opinion is not relevant.

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  1. [...] assumption runs rampant, as people get their own “feel” for right and wrong, and then become so entrenched in their own bias that they refuse to consider the hard details of evidence and proof.  People need no trial to tell [...]