Injustice Can Make You Crazy As A Bedbug

Years ago I worked on the indigent defense panel serving federal courts here in Los Angeles. For very little money, I represented federal defendants who could not afford a lawyer. They were accused of immigration crimes, drug crimes, violent crimes — the whole family of blue-collar federal criminality.

Their attitude about their circumstances was very different than the attitude of my paying clients. My paying clients are usually accused of white collar crimes, usually college-educated and raised in upper-middle-class or better environments, and usually have no prior contact with the justice system. They tend to experience that system in a conspiratorial light. The criminal justice system is so perverse, so Kafkaesque, so indifferently brutal, that it seems inexplicable that what is happening to them happens to everybody. Instead, they usually believe that someone — an investigator, a prosecutor, a judge — had a grudge and is singling them out for especially brutal treatment, usually at the secret instigation of their enemies. They often believe that the case might be made better by complaining about the prosecutor targeting them for unfair or unusual treatment.

My indigent clients didn’t express that feeling at all. They had no expectations of fairness or courtesy or reason. Most of them had been through the system before, or had family who had been through the system. They expected Kafka, and got him. They might say that witnesses were lying, that the case was bullshit, or that the sentence was unfair, but they never thought they were being singled out. They knew this was how it worked.

This gulf between people with a fantastical view of the justice system drawn from myth and people who have been on one end of it or the other has been particularly gaping for the last five or so years. The Robert Mueller investigations and prosecutions, the January 6 prosecutions, and the cases against Donald Trump and his entourage have all produced outrage about selective prosecution and biased treatment. In the vast majority of cases, the outrage has been directed at the system doing what it does all of the time, but doing it against powerful, rich, or famous people, who usually escape such treatment.

Today’s example comes from New York Times columnist Bret Stephens, a man of deep concerns that, if not serious, are borne seriously. In a dialogue with Gail Collins, he expressed outrage at E. Jean Carroll’s $83.3 million verdict against Donald Trump for defamation:

This is a classic example of an elite person — here, a New York Times columnist born to good fortune and educated at the University of Chicago and the London School of Economics — suddenly becoming outraged at the injustices of the system when it is used against another elite person — here, a famous and powerful billionaire who was the President of the United States and might be again.

There are plenty of revolting aspects of our justice system, criminal and civil. There are many things that could, or should, outrage Bret Stephens about American justice. This is an odd place to start.

First, Stephens complains that a “socially unpopular figure” can be accused of a “heinous crime” in the “jurisdiction where he is hated the most.” Generally, people who are accused of awful things are hated in the places where they are tried. Take the Central Park Five. They were accused of horrific crimes and tried in a city that reviled them. In fact Donald Trump — the man who arouses Bret Stephens’ civic sympathy — bought a full page ad demanding their execution. Let me tell you: people accused of crime, particularly violent crime, are generally reflexively despised in America. All it takes to be “socially unpopular” is to be accused.

Second, Bret Stephens complains that Trump has been tried “without any realistic chance of defending himself” because the case involves an accusation of decades-old sexual assault. This is nonsense, based on the common-from-dudebros mantra that it is illegitimate and unreliable to try someone for something based on one person’s word against another, as opposed to based on a panoply of CSI-style evidence.

But as both criminal lawyers and civil litigators will tell you, cases routinely turn on key issues that come down to one person’s word against another. That might be a cop’s word about what a suspect said, or it might be a CEO’s word about whether a fact was disclosed in a pitch meeting. But it is absolutely mundane for juries to be asked to weigh one person’s version of events against another’s. Usually one of those people isn’t a billionaire former President with unending access to top lawyers and political connections. Poor people are generally not sued for millions of dollars, because poor people don’t have even hundreds of dollars. But poor people routinely suffer in our system based on a single person’s word. They are denied bail, convicted of crimes, their probation revoked. They are evicted and their benefits are cut and they lose custody of kids. The word of a single person — a cop, a landlord, a bureaucrat — is commonly treated as inherently more believable than theirs. In happens every second.

Unstated but implied in Bret Stephens’ gripe is the premise that women accusing men of sexual assault are particularly unworthy of belief when uncorroborated by physical evidence, or that some sort of hysteria about sexual assault has addled our ability to weigh credibility. This is a worldview, to be sure. It’s just odd to see it raised on behalf of Trump, and not someone far less able to defend themselves. Donald John Trump is no Scottsboro boy. Donald Trump is someone with the maximum possible capacity to defend himself. And he did: represented by very capable counsel at the first Carroll trial, if not the second, and he used every argument and technique possible to convince the jury not to believe Ms. Carroll’s account, and that her delay in reporting rape and lifestyle choices made her unbelievable. Well, every technique except two — he didn’t present any defense witnesses and he didn’t testify. Perhaps Bret Stephens means that, in a he-said she-said case, it’s impossible for “he” to win if “he” is so transparently narcissistic, unlikable, and incredible that it would be suicidal to testify. Well, no system is perfect.

Bret Stephens is also upset that in civil cases, the jury decides who won using the standard of preponderance of evidence, rather than the beyond a reasonable doubt standard applicable to criminal cases. Does Stephens think that the higher standard should apply when billionaires are accused? When women accuse men? It’s not clear. But his quarrel should be with the legal minds of the 18th Century, when the standard was developed.

As a criminal defense attorney, and a commentator on criminal justice, I spend a lot of time thinking about what arguments will move an audience. I am a realist. I know that some audiences begin with their arms folded against me. In Bret Stephens, I have the audience of a man who is inspired to outrage by a large judgment against Donald Trump, a billionaire who deliberately treated his trial like a circus. Stephens’ analysis resolves every doubt, every question, every issue in his favor. But that same audience’s sympathy goes in the other direction if the protagonist in question is, for example, a 13-year-old Latino:

Well, Bret Stephens thinks, if we cannot save the 13-year-old poor boys, at least we should try to save the millionaires.

“But the precedent will eventually come to haunt someone who doesn’t deserve this kind of treatment,” Bret finishes.

Oh Bret. They might not teach you this at the London School of Economics. But deserve’s got nothing to do with it. And the precedent was set long ago, on the backs of far more humble people than Donald Trump.