As SDFLA blog readers know, I do not use this forum as a place to discuss my cases. I use this blog as a place to cover news in this District and other court news that I find interesting. Every now and then there is an exception, and this is one of those times.
Joe Patrice at Above The Law had this post where he compared me and other criminal defense lawyers to the Trump administration’s attack on the media as fake news. In a case that I am handling, the prosecution has come up with various theories which we do not believe have any support in the facts. One such theory was that my client was paying for the defense of an indicted defendant. Even though this is demonstrably false and even though the prosecutor never asked us if this was true, the prosecution filed a motion setting out this false theory. I described the motion (and the prosecution in general) as based on “alternative facts.”
Based on this quote, Patrice then compared me and criminal defense lawyers to Trump’s attack on the media as “fake news”:
Today we grieve in solidarity with the victims of Sweden while the official organs of American government ask that we kindly get over our hangups and just accept the simulation they prefer. It’s how we do things around here now.
Which is not dissimilar to the role criminal defense attorneys routinely play. When you think about it, asking reasonable people to accept all sorts of ludicrous alternative theories in the spirit of creating that shadow of a doubt is a time-honored tradition. … Because defense attorneys are definitely respecting the tricks and tactics of the administration.
But he’s got the analogy backwards. Our Founders created a system with a robust bill of rights so that the media and lawyers could act as a check on the executive branch. Criminal defense lawyers are the cornerstone of our criminal justice system, just as a free press is the cornerstone of our democracy. The media must be permitted to call out the executive branch when it is less than fully transparent and accurate. So too must the criminal defense lawyer call out the executive when it fails to prove its allegations.
Patrice's thinking -- that criminal defense lawyers are out there using tricks to subvert the truth -- has led to all sorts of problems in our system: innocent people being forced to plead guilty, prosecutors holding back evidence (see, e.g., Ted Stevens), and so on. One study says that 10,000 innocent people are convicted each year.
Forcing the government to back up what it says with actual proof instead of baseless statements isn’t a “trick” or “tactic.” This isn’t a defense lawyer “flipping th[e] script” as Patrice describes it. It is exactly the script that our Constitution dictates and one that I and other criminal defense lawyers are proud to carry out.
