2016.017: I’m The Asshole the Robs Deserve

“Rob” commented:

An investment banker closing a factory that has been a small town’s economic lifeblood and shipping those jobs off to Indonesia is creating value for the shareholders, and thus doing what is ethical and appropriate within the context of how he chooses to make his living. It’s choosing to make his living this way which makes him an asshole.

A CIA operative who waterboards a terror suspect is doing what is correct and expected within the context of how he chooses to make his living. It’s choosing to make his living this way that makes him an asshole.

Someone who chooses to make his living destroying rape victims on the stand is an asshole, or at least has a mean streak a mile wide.

Some of you might expect me to argue with this. Surprise!: Rob is right in the end.1

“Say please, say thank you, take your turn, don’t cuss in church, respect authority”: A society has agreed behavioral norms, which help people to live together comfortably in that society. A society’s norms are, roughly, the things you needed to know that you learned in kindergarten. Most people break these norms in private or occasionally without consequence, but people who  violate society’s norms consistently and defiantly are “assholes” to those who follow the norms.2

When I talk about a society’s norms I’m not talking about the law, which is a formal system overlaid on the norms.

For example, American society’s norms for treatment of victims include deference. The law does not include this. Instead, under the law, the “victim” is just a witness whose story gets tested like any other. American society’s norms for treatment of people accused of wrongdoing include shunning. The law does not. Instead, under the law, the accused is innocent until proven guilty.

But overlaying a formal system on the norms does not eliminate the norms. There are cases in which the law mimics the norms, as in crimes mala prohibita. And even when the law differs from the norms, the norms are still there, and decent people are expected to follow them most of the time. So for example you might, in your ordinary life, reflexively believe a woman who claims that she was raped, but still be able to serve on a jury if the law required you to presume the accused innocent.

You see what I’m getting at here: The criminal-defense lawyer shatters these (and other) norms. She flouts the will of society, routinely and proudly. When society tells her that she should follow the norms — that she should believe the victim, not slut-shame, not victim-blame — she has the gall to tell society that it, and not she, is wrong. So the criminal-defense lawyer is — if not definitionally, then damn near — an asshole. What’s more, when society (in the form of, say, Rob) tells the criminal-defense lawyer she’s an asshole for defending people accused of rape, she laughs in Rob’s doughy face and tells him to go fuck himself. So not only is she defiant about violating the norms, but she’s defiant about defiantly violating the norms, which is the greatest sin of all — “don’t be an asshole” is a norm of paramount importance to comfortable people like Rob3 because is the fear of being an asshole that society uses to keep people from breaking the norms.
Rob would never be a criminal-defense lawyer or a CIA officer or an investment banker. Good for Rob -0b -b. B- ba- Baa. None of us should live any farther from society’s norms than we want to. Baaa.
This won’t be the first time I’ve copped to being an asshole. I comfort the afflicted, and am an asshole to the comfortable, and I’m okay with that. Because it it’s Rob or his son or nephew who is falsely accused of rape, he’s going to want a criminal-defense lawyer who is more than willing to “destroy” the lying complainant on the witness stand.I am not the asshole the Robs of the world need right now, but when the day comes, I’ll still be here.


  1. I’ll leave the niggling details to the nitpickers. 

  2. If that isn’t definitional, it’s damn near. 

  3. So much so that calling someone an “asshole” is seen as a harsh insult! 

18 Comments

  1. and when it’s your wife or daughter or niece on the witness stand, telling the truth? Would you cross examine them with the same ferocity? If there is nothing to what I’m saying, why not?

    1. I’m probably not going out on a limb here, but that is an absurd question argument. Ignoring the improbability that those events would ever occur in that sequence, the answer is so so so obvious. Maybe you should form your opinion AFTER reading the posts.

    2. Of course he wouldn’t; neither would I, and neither would you. This is why it is a terrible idea for a lawyer to handle a case involving someone close to him (whether the complaining witness or the defendant).

      This sort of assholery requires detachment, which in turn requires that the lawyer not be too close to the situation. (This same lack of objectivity is why doctors won’t generally treat someone close to them.)

      My question to you, Rob, would be, “what alternative do you propose?” Are we to simply believe the accuser, throw the defendant under the jail, and overlook the now-countless cases in which the accuser was clearly (or even admittedly) lying about the accusation?

      1. Perhaps they can avoid techniques they know to be morally reprehensible, like Slut Shaming? A woman claims she is raped. A man says she’s a slut and wanted it. By this rationale it’s ok to paint her as a slut who wanted to be raped, because it might get your client off. It’s not addressing her as a witness, but as inherently an unreliable one because (sexist reasons).

        It makes you a supreme asshole, especially if you know your client raped the victim, and you’ve run out of legal techniques.

      2. “She consented”: That’s a defense to rape. But try to develop the evidence to corroborate my client’s testimony that the complainant consented, and I’m doing something “morally reprehensible”? GFY.

    3. Or when its your son or nephew being accused would you want the complainant treated with kid gloves and not really pressed on cross because to do so would be insensitive and “victimize the complainant twice”

  2. One cannot always be polite in defending their own rights and the rights of others. In fact, when in a situation where right need defending, not being an asshole is never going to get the job done.

  3. How do lawyers feel when they get off someone who committed the crime but were found not guilty do to the skill of the lawyer?

    “Hooray, this man is now free to rape and murder again”?

    “Good for me getting this guy off because it’s my job”

    1. A lawyer’s job is never to decide whether his client “did it,” so that doesn’t enter into the equation, you ignorant bloviating asshat.

      But when we keep the power of the state, doing the bidding of whingeing leftwing authoritarian clownshoes like you, from putting our clients in boxes, it’s either “good for me” or “the DA really needs to hire better talent, because that prosecutor was as dumb as Jordan Chandler” (a common expression among the criminal-defense brethren and sistren, though I’d never understood it till just now).

      P.S. It’s “due to,” you illiterate toolbag.

      1. Dude….what’s with the hostility? I’m a long time reader of your blog and an admirer of your writing, and I was merely inquiring. I wasn’t attacking. WTF…

    2. The guilty (or not guilty) verdict (“knowing” whether the defendant “committed the crime”) is the product of a trial. A trial is an adversarial process whereby the people attempting to prove guilt have to overcome arguments intended to make that effort difficult.

      That’s what our society agreed to.

      The defendant’s lawyer is required to have the discipline not to let what he thinks get in the way of his job (being an advocate for the defendant).

      Clearly, the process doesn’t work perfectly but it’s the proceeds that we agreed to abide by).

  4. Mark, great post. One ethics question though – I agree it’s not a defence lawyer’s job to decide whether or not the client “did it”, but what about situations where your client admits guilt to you at pre-trial stage, but then later recants and wishes to proceed with a ng plea and run a trial? Would this type of scenario affect how you proceed?

    1. If he confesses to me, he still gets a trial, because the State still has to prove its case, but I can’t suborn perjury by putting him on the stand to testify. (There are workarounds.)

      If he recants, I am not to judge whether the initial admission or the later recantation is the truth. I can proceed as though he never confessed.

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