The discomfort of principles

One of the first things you learn when you become a criminal defense attorney – and really learn, not just recognize ideologically – is that your emotions will get in the way of your job. I can almost guarantee that on the first day of your job as a defense lawyer, you will see something that is morally repugnant to you.

The second thing you learn as a criminal defense attorney is that your emotions are to be ignored. It will take time to achieve full zen, but the process starts on that day. That’s not because you are a heartless, soulless person who cares only for the defendant and not the victim, but that you have to be.

Because emotions and principles clash, every day, all the time. And you in order to effectively stand up for and defend the latter, you have to sacrifice the former.

Take the ACLU, for instance. A venerated champion and defender of civil liberties, the ACLU last week demanded that the Department of Justice investigate George Zimmerman to see if he can be prosecuted by the Federal Government after being acquitted by the State of Florida 1.

“Last night’s verdict casts serious doubt on whether the legal system truly provides equal protection of the laws to everyone regardless of race or ethnicity,” ACLU Executive Director Anthony Romero said in a statement on July 14, the day after the Florida jury’s verdict. “This case reminds us that it is imperative that the Department of Justice thoroughly examine whether the Martin shooting was a federal civil rights violation or hate crime.”

It’s hard to blame most people for letting their emotions get the best of them in cases like this where the air has been tinged with cries of racial injustice since the very beginning. Race is still a sore subject.

But the ACLU isn’t just anybody. It’s the organization for the protection of individual rights and civil liberties. Thankfully, they eventually came to their senses:

“The ACLU believes the Double Jeopardy Clause of the Constitution protects someone from being prosecuted in another court for charges arising from the same transaction. A jury found Zimmerman not guilty, and that should be the end of the criminal case,” she wrote.

But the damage has been done. The ACLU has exhibited that even they can be swayed from their principles. And if our principles are so subservient to our transient emotions, then how principled can we be?

Two days ago, Mark Bennett asked which of two self-defense statute scenarios would be want for a society that we were building afresh:

On the one hand, life is pre­cious; there is some appeal to the idea that before using force that one should, as a mat­ter of prin­ci­ple, do every­thing rea­son­able to avoid hav­ing to end another human being’s life.

On the other hand, when peo­ple are going about their law­ful busi­ness, attackers—lawbreakers—should not, as a mat­ter of prin­ci­ple, be able to force them to flee. Free people stand their ground.

Yesterday, Scott Greenfield wrote of the decades old adage being tested by the yoot of today:

While it would make sense that the historical platitudes regurgitated by lawyers when they fit their interests are purportedly liberal, so too are the forces that apply to ridding our society of crimes, like rape or sexual harassment, that have taken on sacred cow status. So much so that even the most progressive of schools have indoctrinated their students into believing that such principles as not convicting the innocent take a back seat to making sure no sexual harasser walks away.

Add to that the fact that most college students today lived more than half their lives under the regimen of fear borne of 9/11, and the government’s decade old “if you see something, say something,” campaign. They never walked onto an airplane without having their bags x-rayed and taken off their shoes. Compliance with authoritarian demands is the norm of life, and it’s been drilled into their heads that it’s for their own good.

A few days ago, the Wall Street Journal had this article reporting the dismal results of a survey:

Increasingly, the First Amendment is coming under challenge — by the American public.

More than a third of Americans say the First Amendment goes too far in the rights it guarantees, according to a new survey.

* 36% couldn’t name any of the rights guaranteed by the First Amendment.

I don’t know if this is symptomatic of a larger problem, such as the inability to hold two competing thoughts in one’s head at once, or the inability to recognize that the world is larger than oneself and that the self-important, self-centered attitude of the modern generation is dangerously myopic.

Because principles are hard. They are things we believe in even when the outcome of sticking to those beliefs is unpleasant. Because we don’t moralize based on an individual factual scenario. If we believe murder is wrong, don’t we believe all murder is wrong?

Take this example: I suspect there are many people who, when asked in the abstract – or even as applied to others – would definitively state that it is wrong and dangerous to run a red light.

But I would also venture a guess that a vast majority of those people have themselves run red lights. Why would that be? You recognize that it is dangerous to do X, such that you don’t want others to do it and you want to society to prevent others from doing it, yet you yourself are exempt from that prohibition.

Because stopping at that red light and waiting for another minute is harder than running the risk of squeezing through. Because you’re special and nothing will happen to you.

When something affects us emotionally, viscerally – anything but intellectually – we are quick to throw our beliefs out the window, because dammit it feels right.

Do you understand that if you say, today, “police officers should be allowed to stop cars and check them to see if there are drugs because we want to stop drug trafficking and save our children”, that means you’ve given the police permission to stop and search your car, for no reason, and then arrest you for the X they find in your car “because we want to stop X and save our children”?

When you clamor for the infringement of another’s protection because you don’t like him, you give the people with power the authority to decide that they don’t like you and do the same to you.

If there are exemptions for everyone, then there is no rule. And if there are no rules, then what will you hide behind when they come looking for you?

 

 

  1. For more on dual sovereignty and related issues, see this post at Overlawyered.

13 thoughts on “The discomfort of principles

  1. Pingback: Nerve Touching | Simple Justice

  2. wyrdwyrd

    Stand Your Ground oughta to be renamed Last Man Standing — ’cause whenever it finally occurs that it’s two *armed* persons late at night, *both* of them will likely consider the other to be suspicious. So it’s showdown time… or something. And then the “winner” can pretend to say what happened: “he pulled a gun on me. I was a-feared for my life. I shot him.”

    ———

    Re having to put any concern for the victim aside:
    I’m probably being naive and stuff. But is or are there some other systems of justice out there that aren’t adversarial?

    It always seemed to me that part of the problem is that our system isn’t interested in figuring out what *actually* happened, but is instead hell-bent on having two opposing sides aggressively (zealously) argue for their respective opposing positions regardless of whether it makes any real sense or not.

    If the system were differently focused on getting to the truth, mightn’t that help?

    But I’m guessing the problem is that it’s virtually impossible to really make the system work in that fashion.


    Furry cows moo and decompress.

    Reply
    1. Gideon Post author

      I suppose; I haven’t really given it much thought. The inquisitional system, though, seems to place “truth” above all else, including individual rights. I guess it works for many other countries, so why not us? I don’t really have an answer for that.

      As to the first point, that outcome could occur without “stand your ground” laws. All self-defense cases usually involve only one party left to tell the tale. Judges and juries still make determinations as to the reasonableness of the use of force.

      Reply
      1. AK

        An instinctive answer might be that the inquisitional system works in places with less deranged criminal statutes and without such an active history of constant, virulent racism throughout the criminal justice system. It’s much easier to place truth above rights when your criminal statutes and police force aren’t designed specifically to enact force upon the poor and minority.

        Reply
  3. LJS

    “Stand your ground” exists because of bad case law on retreat. In a nutshell, most states require one to retreat, in public places, before using deadly force, if one can do so in complete safety. (Castle laws and cases generally do not require one to retreat in one’s own home from an intruder.) This sounds reasonable, but …
    Self-defense arises when the defender is in imminent danger of death or serious bodily harm — that’s by definition a high-stress state. And we know from eyewitness ID research and research into officer-involved shootings, that one’s perception and memory are adversely affected by stress. What looks like a perfectly good avenue of retreat in hindsight, in the quiet of the jury room, or in the judge’s chambers, is very, very different from what the defender could have perceived. Thus, bad decisions convicting folks who had strong self-defense cases, which turned into a push for laws getting rid of the often ambiguous in practice retreat rules.

    Reply
  4. Windypundit

    I seem to recall a quote or something about cutting down trees to chase the devil and having nowhere to hide from the wind, or the devil when he turns ’round on you…anybody remember something More about that?

    Reply
  5. Pingback: “Lie-detector Indian” | a public defender

  6. Pingback: Police and prosecution roundup - Overlawyered

  7. A6

    “One of the first things you learn when you become a criminal defense attorney – and really learn, not just recognize ideologically – is that your emotions will get in the way of your job. I can almost guarantee that on the first day of your job as a defense lawyer, you will see something that is morally repugnant to you.

    “The second thing you learn as a criminal defense attorney is that your emotions are to be ignored. It will take time to achieve full zen, but the process starts on that day. That’s not because you are a heartless, soulless person who cares only for the defendant and not the victim, but that you have to be.

    “Because emotions and principles clash, every day, all the time. And you in order to effectively stand up for and defend the latter, you have to sacrifice the former.”

    What on earth can this mean if not that you know most (or all) of your clients are guilty?

    Your emotions would be fine if you were defending the innocent.

    So you imagine you’re defending the Constitution. Of course, you sometimes do–just as sometimes a plumber does, or an architect–but it’s not the way to bet on a day-to-day basis.

    Fortunately, you won’t have too much trouble with your emotions, for the same reason your clients don’t. Forgiveness, even applause, is quite easy when the object thereof is oneself.

    Reply
    1. wyrdwyrd

      What on earth can this mean if not that you know most (or all) of your clients are guilty?

      What it means is that the word “guilty” is gonna sound a whole heck of a lot different to you if you should ever happen to find yourself playing the unhappy role of “defendant”.

      What’s that? You’d never do something “wrong” in the first place you say?

      Dude–whoever said this was about the ambiguous, dubiously defined moral concepts “right” and “wrong”? This is only ever about the criminal code. And about how small time criminals that do small time crimes might tend to arbitrarily get the book thrown at them for what horrible or not horrible illegal thing they did whilest those with the money and the power (who get to hire the best lawyers of course) almost, almost always get away with minimal to no penalty for.. theft, embezzlement, fraud, etc, etc.

      Just take a look at Herbalife. It’s a pyramid scheme. Yet there it is on the publicly traded NYSE

      (hypothetical) Oh but hey–this guy over here, he beat up a woman and took her purse. So that totally justifies (actually it doesn’t justify) when the police brutally beat him down even though he surrendered when they showed up.

      So it goes.

      ——————-

      Your emotions would be fine if you were defending the innocent.

      That might (maybe) be true during opening and closing arguments. Because those instances (from what I’ve seen at least) are all about making impassioned, not necessarily fact-supported speeches. It seems like shameless emotional appeals are totally fair game there.

      But outside of that–well IANAL, but what I’ve read/heard from those that are is that emotions tend to get in the way of doing good lawyer-ing regardless of whether those emotions are for your client or against. Lawyer-ing appears to be 9 parts logic to 1 part emotion.


      Furry cows moo and decompress.

      Reply
  8. A6

    P.S. Of course, you’re right about the ACLU, except that you were surprised.

    I quit the ACLU not because it’s overenthusiastic about civil liberties (as it likes to suppose) but because, on the whole, it’s now against civil liberties and in favor of a racial spoils system.

    Reply

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