The doctrine that speech can be criminalized if it is the “instrumentality used to commit the crime” misses the point. And if it is permitted to persist, the exception will swallow the rule. Because you could make the argument that any speech that is criminalized is the instrumentality.
Under that analysis the legislature could pass a statute that criminalizes writing our your grocery list. We all know that’s silly, but let’s walk it through. If you write a grocery list, then the words used in the grocery list are the instrumentality of the crime.
We live in a country, in a state, with significant problems. We all know that. Things have been rough these last few years. If any speech can be criminalized, the populace will not feel free to criticize government. And look where that got us.
For that matter, we won’t feel free to criticize private people, or businesses, for fear they will sue for defamation. If you look at the roots of defamation, as I did this morning, it was used by Roman Emperors to stifle any speech but theirs. Interestingly, the edict at that time was that those who located a defamatory document were required to burn it, to never step forward with it. (Go to Wikipedia, and key in “defamation.”) So the irony in my disciplinary matter, is that Judge Wieland gave a bunch of documents to the OLPR, claiming she had been some version of defamed. If we are true to our roots, she should have burned those documents and said nothing further.
This has always been an obtuse aspect of defamation lawsuit. To come forward and claim harm, you must re-publish the very material that you are claiming harmed you in the publication. The law has attempted to get around this in certain ways. But there are other problems with defamation. Originally, truth was not a defense. Wikipedia attaches some type of Roman edict (I do not know where this came from), claiming that anyone acting in the public safety could step forward to denounce the libel. And if he was right, he would receive a great commendation. And if he was wrong, he would be “visited” with capital punishment.
Now, that puts the truth-seeker at great risk. I kind of feel like that Roman dude, who must have debated long and hard before stepping forward in the public good. The risk is high, the ultimate risk. The risk has been high for me as well. They (and we all know who it is) have forced me to stand and defend my license. They have had no shame in attempting to imply I am not a good lawyer.
I will put my lawyering up against anyone’s. But it’s really more than that. In the early days, the way you proved that you were right in stepping forward to protect the public good, was by arguing what was morally right. We seemed to have lost our way. With so many technical rules of ethics (oh yeah, complete with competing provisions, interpretations by case law, advisory opinions by the Lawyers Board, and the sundry MSBA article by Mr. Klausing or Mr. Cole), what about what is right? Members of the public are fond of saying someone got off on a technicality. What about all the people who got on on a technicality? Who are good people, meaning no harm, but caught up in the system, fighting until their arms and fight are full of glue and the system has them stuck to the floor. When can we cut through the technical details and ask – what is the right thing to do here?
What is the right thing to do here?
Look, people have a right to be concerned about their reputation. But the nature of things today, where so much is on computers, and bad even false allegations can fly around the world in an instant by email, it’s time we revisited the way in which we conceptualize this claim.
At least in a lawsuit you can stand and fight. It’s the behind-the-scenes retaliation that is the most harmful and the hardest to get at.
And that’s mostly what I have encountered. For years, I had a pretty good feeling about what was going on in the back rooms. That is, that people were taking my name in vain. I was told this, point blank, by some judges. Usually followed with, “and you are nothing like what I was told you would be like.” That made me feel better for the moment. But as the years wore on, it became clear that without being able to be present when people were attacking me, I was losing the battle.
What I finally came into possession of proved that I had been right all along. Actually, it was worse than I had ever imagined. I knew I was controversial (you know, those awful things like accountability and justice), but I had no idea the venom that flowed from some my way. I still, to this day, don’t know what I did to inspire such anger. I have my theories (and being a good lawyer, I could prove about five of them, in court, to a jury, today), but I will never truly know. I kind of don’t care. That is, on some level, these people need to take care of themselves, and if anger at me if their issue, I guess, you know dude, some therapy might be in order. I have been busy taking care of myself, working diligently to take care of my clients (the notion that I might have harmed my clients is absurd, and you all know it), and trying to do a bigger piece for our system. It’s part of who I am. I don’t need to explain it to you, and I don’t need to justify it. It’s what makes me “tick,” as they say. And I’m not in the mood to apologize for who I am (or my personality).
And I have been working on this project for 10 years. And it would be awesome if y’all would help me. There are many people who have (on their own) demarked themselves as my enemies. Some of you I wouldn’t care to spend any personal time with. But you all have experience in this system, which could be brought to bear on the problems, if you would only just let go, and help.
No matter what people say about me, you know I am a hard worker. And it’s really overwhelmed me. There is so much fodder here, so much to work with, to try something new. Here’s an idea:
This morning I looked up “polemic” as a form of argument. It is pointed (to prove a particular hypothetic) and described as “harsh.” This is what lawyers do. Debate, it turns out (go figure) is fashioned to show both sides, and foster a compromise.
What modern juries often do is to come to a compromise. We as lawyers are not permitted to observe this, but we can see its traces. For example, criminal prosecutors know not to charge one offense, but to charge at least two, preferably three. Because a jury intent on compromise will likely, as a part of that compromise, convict on one. In civil, excessive force cases, there is often no room for compromise, because only one claim exists at the time of trial (not dismissed on motion according to some edict or other) and that being excessive force. Combine that with a morally wrong jury instruction, and the outcome is predictable. Lawyers and judges focus on polemics. Juries see it as a debate. But if both sides of the controversy are not before the jury at one time, the jury won’t see the big picture from which to forge the compromise. If a trial included not just the “criminal” charges against the member of the public (which in these cases is that the officer was just doing his job, using appropriate force under the circumstances), but also the “civil” issue (the allegation from the member of the public that the officer used too much force), the jury sees the broader picture.
Lawyers don’t want jurors to ask questions, because they are worried they have crafted a house of cards that if they are clever enough to put on the show it will stand, but one question from one layperson could blow the whole thing. Jurors asking questions should be, could be part of the hearing if: 1) the evidence was gathered by a neutral magistrate and everyone knew what it was, had equal access to it, and presumed it would go before the jury; 2) the jury did not need to decide “fault” in the classic sense, but the hearing was used to educate the jury as to the circumstances in which the dispute arose; and 3) experts were used truly to educate the jury, and not to put on a show for one of the sides. This would include damages experts. This resembles using a jury for high-low arbitration (plus juror questions – which could even include – which is the low so high or why is the high so low). What do you think?
We’d need to move some pieces around the puzzle board to make this work. There are federal court issues, state court issues, and a lot that needs to be worked out. But it’s better than what we have been doing.
When you think about it, it’s kind of what I have been trying to do with my disciplinary case. I never, not for one second, thought I was “guilty” of anything. The whole thing has been a sort of grueling exercise. Although it’s been intriguing to be a party, rather than a lawyer, I can’t say it has enhanced my position view of the system at all. Quite the contrary. I now have felt what it is like to be the little guy, when the system brings all it can to bear against you, but you know you did nothing wrong.
I am older, and wiser from the experience. I have great empathy for those who have been wronged by our system. And, perhaps not something that you wanted to hear, I have even more zeal to continue to work on solutions. If you think you had trouble shutting me up as a lawyer, think of what I can say as a member of the public!
And, you know it’s not over. You already have some glimpse of what I could do as a pro se attorney and representative of a class.
So let’s get real; I’m not going away.
Work against me if you must, but consider, if you will, that there could be another way.
I have been trying to figure this one out since like May or June. Perhaps when I post that, you can help me describe it better.