One Criminal-Defense Attorney's Lament – The Atlantic

For more than a decade, the criminal-defense attorney Scott H. Greenfield has been writing about American law and culture at Simple Justice. Among the site’s readers are lawyers, law professors, judges, civil libertarians, and advocates of criminal-justice reform. What keeps me coming back is his zealous advocacy for a consistent set of principles no matter how unpopular their application might be in a given instance.

Whether I agree or strongly disagree with where he comes down on a given matter, I can count on his steadfast commitment to an underlying ethos. And in many instances that helps me to see what is at stake more clearly. Last month, I asked whether he would be willing to do an interview to discuss his growing concern with turns that American culture has taken. Here is a lightly condensed and edited version of our correspondence.


Conor Friedersdorf: What would be the best way to characterize your career?

Scott Greenfield: When asked, as a matter of personal preference, I use only “criminal-defense lawyer.” I get that people love titles and ascribed credibility, but when someone takes some fluff from my background to build me into someone of sufficient importance to be worthy of other people’s time, I cringe. Is my 35 years of criminal defense not worthy? It’s the most important thing I’ve ever done, and the rest is collateral noise.

Friedersdorf: It’s more than a job for you. It’s an ethos. You comment on matters beyond criminal justice. And your analysis and conclusions are influenced by values—like the importance of presuming innocence, due process, and adversarial proceedings—even when they aren’t strictly required by law. How have your 35 years as a criminal-defense lawyer informed the values and insights you bring to civic commentary?

Greenfield: Stick around long enough, and you may come to appreciate the value of principles in how you view law and life. They provide the defaults for how I approach issues and challenges, even when I might feel as if a particular outcome is more to my liking. Having seen the pendulum swing back and forth, and then side to side (because things rarely fit together simply), I appreciate that the outcomes I prefer aren’t necessarily the best outcomes, or the right outcomes, from a broader perspective.

The problem I have, now that I’m not nearly as smart as I was when I was younger, is that the rationalizations that allowed me to reach my goals often served to cause greater, unintended harm, because they weren’t sound. It’s a painful lesson to realize that you have to look beyond the one problem you’re trying to solve and see how the story plays out.

But without doing so, we’re screwed.

So, I’ve ended up being that guy who reminds others that their glorious and novel approach has issues and defies our foundational principles.

People tend not to appreciate being told their baby is ugly. But sometimes the baby is ugly, and if no one is willing to say so, then bad concepts are embraced and we end up with havoc. I try to adhere to principle, often when I would prefer to be as indulgent as others––and knowing that nobody is going to give me a prize for being that mean old guy who harshes dreams of glory—because principles prevent us from wreaking havoc.

Friedersdorf: What’s an example of a principle that you find yourself advocating for even as you perceive that American society is undervaluing it?

Greenfield: Let’s start with a big one, due process. Advocates for accusers in Title IX campus sexual-assault adjudications have vilified due process as allowing rapists to “get away with it.” This has been amplified as a result of the “Dear Colleague” letter by the Obama administration’s Department of Education Office of Civil Rights bureaucrats and Trump administration Education Secretary Betsy DeVos’s rescission of that letter. It is further complicated by the #MeToo movement.

The laundry list of basic procedural due-process rights—notice, opportunity to defend, cross-examination—have been ripped to shreds as unfair, traumatic weapons to victimize accusers. Of course, these are the same processes that are desperately at risk in non-sex-related criminal cases, where a similar cohort demands they be provided and honored. Why are they good for some accusers and horrible for others?

If cross-examination is an evil because it might “re-traumatize” the victim, is that not the same when the victim is in court for a robbery? If we’re to “believe the victim,” to functionally undermine the presumption of innocence and shift the onus onto the accused to prove they’re not guilty, how do we explain not believing the victim in any other criminal proceeding? And before anyone replies, “But we do,” no, criminal-defense lawyers don’t. No accusation is above challenge.

Either the concept of due process is an inherent virtue in our system or it isn’t. It doesn’t morph from wonderful to horrible based upon the nature of the accusation, or which side is preferred at any moment. As the concept is vilified, procedural fairness is increasingly seen as some technical trick to favor the accused rather than giving the accused a fair opportunity to defend himself. And lest there be any doubt, not only is it an inherent virtue in all proceedings, but without it we’re left with an inquisition. Then again, when it comes to proceedings like Title IX sex policing, that’s pretty much what’s desired by the accusers, even though it’s in fundamental conflict with core premises of our jurisprudence.

Friedersdorf: The most common retort seeks to distinguish criminal proceedings, where the accused faces incarceration, from ostensibly lower-stakes situations, like campus disciplinary hearings where expulsion from one institution is the maximum penalty; workplace complaints, where the stakes end at termination; and name-and-shame efforts, like that story about a bad date with Aziz Ansari, where social stigma and public embarrassment are the main consequences. What’s your counterargument for applying due-process norms beyond criminal proceedings? And how far does the logic extend? Whenever there is official punishment meted out by any institution? What about public allegations of sexual misconduct with no institution or formal penalty attached?

Greenfield: First, let’s separate “official punishment” from social stigmatization. To say Title IX is limited to expulsion, in itself, trivializes the impact. Expulsion from college is a huge punishment to a kid. But that’s not the extent of it by a long shot. He loses years of studying, preparing to get into a decent college. He loses tuition paid for the years preceding expulsion, or carries the debt load into an empty future, plus the opportunity cost of going to three and a half years of college and leaving without a degree.

And he’s tainted for life, as he’s constrained to explain his expulsion, like any sex offender. Except his “guilt” and punishment were derived without the basic safeguards for a valid verdict. This is by no means trivial.

In certain ways, social condemnation has become something even worse, the mere accusation being all that’s required for a mob of unduly passionate people to crush a career. There’s no opportunity to defend and no means to challenge an accusation. While the “punishment” isn’t levied by government, and is therefore beyond any required involvement of such niceties as due process, the net result can be as destructive given the current tide of blind acceptance and capitulation.

While due process is properly thought of as technical legal rules, it didn’t come out of nowhere; it came from the values society decided were worthy and necessary to craft a system of decision making before anyone would be condemned and punished. So although due process doesn’t technically apply, the values underlying due process are still as worthy and necessary as ever. It’s not because the rules require it, but because we, as a society, should value such things as fundamental fairness, opportunity to defend, the presumption of innocence, a neutral fact finder, and the burden of proof, at whatever level it should be, on the accuser.

Friedersdorf: Do you think that the efforts to weaken due-process norms, the presumption of innocence, and the “beyond a reasonable doubt” burden of proof in non-criminal proceedings will ultimately influence the criminal courts too, even given the bulwark that the Constitution provides? For example, will prosecutors or judges or jurors approach their roles differently? Do you have any specific concerns in this regard?

Greenfield: It’s already happening in ways that are somewhat subtle at this point. Prosecutors are calling experts to testify at trial about how an alleged rape survivor’s failure to recall details is proof of trauma and an indicator of truthfulness. Police are being trained in “trauma informed” investigative methods, where they are instructed to ignore inconsistencies, or even flagrant impossibilities, in a complainant’s story so as to believe and avoid re-traumatizing the “victim,” while also ignoring investigative paths that might demonstrate that no crime was committed or that it was committed by someone other than the defendant.

Judges, as in the Bill Cosby trial, are permitting prosecutors to introduce multiple prior-bad-act witnesses, who are offered to prejudice a jury by showing a propensity to commit the crime with little substantive regard for materiality or relevance. The basis is largely informed by narratives around sex crimes rather than anything sufficiently unique about the evidence to overcome its improper, prejudicial effect.

Laws are being rewritten, redefined, based upon vague but trendy notions of harms, such as Governor Andrew Cuomo’s mandate that “affirmative consent” be applied to colleges within the state university system.

Much as that phrase affirmative consent has become ubiquitous, it remains insufficiently defined. What conduct sufficiently conveys enthusiasm to overcome an allegation of rape? How often during a sex act must consent be reaffirmed? What if it’s conveyed, but with secret reluctance? It is based not on the conduct of the accused, but the accuser’s mental state, in contrast with the notice the Constitution ordinarily requires of laws, so that a person can know conduct is prohibited rather than the prohibition hinging on the post-hoc mental state of its “victim.”

Each of these, and more, are happening.

People aren’t necessarily connecting the concrete changes with their due-process component, but they undermine, step by step, the fragile system of minimal fairness that we aspire to maintain in criminal proceedings.

The irony is that people are totally capable of seeing how the system fails to provide sufficient procedural fairness when it comes to certain crimes, most notably murder when someone is subsequently exonerated on DNA evidence after they’ve been identified with “100 percent certainty.” People also see it with false confessions, as with the Central Park Five. And yet, they can’t see it at all when it comes to other crimes with more robust rationalizations for significant failures of proof.

Friedersdorf: Let’s turn from the innocent to the guilty. I’ve wondered what effect #MeToo will have on them. Bill Cosby and Harvey Weinstein are no longer able to marshal their wealth to transgress with impunity against women after woman. To me, that’s progress, and I celebrate the careful journalism that documented their misdeeds and prompted criminal probes. What concerns me is more complicated.

Back in 2015, my then-colleague Ta-Nehisi Coates published a cover story on mass incarceration. “Our carceral state banishes American citizens to a gray wasteland far beyond the promises and protections the government grants its other citizens,” he wrote, and that banishment “continues long after one’s actual time behind bars has ended, making housing and employment hard to secure.” He went on to argue that freeing only nonviolent offenders was an inadequate solution. “Arguing for leniency toward violent criminals is not easy politically,” he wrote. “The initial impediment to undoing mass incarceration in America is not that we don’t have the answers for how to treat violent crime—it’s that our politics seem allergic to the very question.”

At the time, friends of mine who work on criminal-justice reform were full of hope. They felt there was a chance to reach Americans with the argument that warehousing so many humans for so long wasn’t merely unjust, it was self-defeating—that punishment was necessary, but that redemption was too, and that offering it could turn people who are burdens on the system into men and women who could rejoin society, tap their human potential, and contribute something to their fellow humans.

Today, a “law and order” authoritarian is in the White House. Congressional Democrats are good on some issues and undermining due-process rights on others. #MeToo hasn’t touched prisoners in “the gray wasteland,” though they are one of the classes most victimized by sexual abuse. And the college-educated left is a mess of contradictions. A coalition that only recently counted redemption for violent felons as a top priority, and favored laws forbidding employers from asking about bygone crimes on job applications, now advocates for zero-tolerance policies to punish behavior from years in the past and—for example—isn’t necessarily willing to grant that Louis C.K. should ever work again.

Of course, a felon who served his time and a millionaire comedian who never went to jail are different in many ways, and I myself both favor reforms to mass incarceration and believe Louis C.K. behaved in a manner that warrants some social opprobrium. But it seems to me that cultural norms are indivisible—that we’re either going to have a society that embraces law and order, zero tolerance, harsh punishments, and the attitude that transgressors are deplorable and irredeemable, or one oriented toward nuance, moderation, and the attitude that while transgressors ought to face punishment, we all lose if they’re forever banished, and we all gain if there’s a path toward redemption that allows us to benefit from whatever human potential they can tap.

Among #MeToo supporters, I perceive a faction that feels justified in adopting the former, more authoritarian attitudes due to the perception that they’re doing so on behalf of a long-victimized class, and against an oppressor class of privileged white males. Without adjudicating the merits of their two-tiered value system, I regard it as self-evident fantasy to imagine that a society can adopt harsh norms that only affect those at the top. And I worry a lot about the folks at the bottom. You’ve more experience with the incarcerated than me. Am I wrong?

Greenfield: Before turning to your very important question, I’m constrained to challenge your preface. Bill Cosby’s first trial ended in a hung jury. He was convicted only after an extremely problematic ruling allowing five accusers of uncharged crimes to testify before the jury. While he stands convicted, there remains an extremely troubling issue on appeal, so let’s not take his guilt for granted.

And then there’s the poster boy for #MeToo, Harvey Weinstein, who has already had the charges based on one accuser dismissed because it was revealed that her allegations were false in that she knowingly engaged in sex to get a role, fully aware of the deal she made with the devil. Other charges have other issues. As he’s yet to be convicted of anything, let’s not assume the verdict by the Court of Ronan Farrow is inviolate.

But moving to your question, Ta-Nehisi Coates’s epiphany was nothing new to criminal-defense lawyers, who’ve spent decades fighting the ratcheting up of punishment and condemnation for those convicted. And hard as we tried to tell people, to explain, it was all too easy for politicians to sell tough-on-crime and fear to their audience. With each new election came a new fear to be exploited, more punishment to be imposed, and people just loved their elected officials for keeping them safe.

Having lived through the crack epidemic of the ’80s and ’90s, the “superpredator” fears, the Satanic Panic, even Enron, I have the misfortune of remembering how each of these things developed, the drama exploited to stoke the public’s anger and embrace the death of redemption. We understood the dilemma it was creating, that there was nowhere for ex-cons to go, and screamed about it. Not only did no one care, but they came up with more ways to destroy lives, like baseless sex-offender registration laws and their impossible demands and restrictions.

While there is a strain, as you properly perceive it, to adopt some new sense of redemption, a second chance, it’s not a return to the old days of a convict having paid his debt to society. It’s not grounded in reason, but emotion.

Redemption isn’t offered on the premise that all people convicted of crime, having completed their punishment, are entitled to return to society free of taint, but with caveats that apply only to those currently favored, and sometimes explicitly favored on the basis of their marginalized identity rather than because they’re a human being. Some of us think of this in terms of the concept that every person should be entitled to return to the chance for a law-abiding, productive life. Some feel that only those who haven’t committed offenses they deem especially repugnant are worthy of a second chance, even after their sentence has been served.

Drugs were a primary driver of the increases in punishment. The crack epidemic wreaked havoc with law, and then Len Bias’s overdose death brought us sentences that under the federal guidelines were astronomical compared with what they were before. Those became the new baseline, only to be increased as the new, higher sentences failed to end the epidemic, as we knew would be the case. And with the epidemic came crime to get the money to pay for the drugs, and guns to protect turf or grab new street corners or just blow away the guy who insulted your girlfriend, as newly minted drug kingpins are wont to do.

Today, all of that is (thankfully) forgotten, but it’s hardly gone. We just have a new epidemic, and those of us who were around for the last few panics are watching history repeat itself, this time with dubious sex offenses.

Will it somehow turn out differently this time? As you note, our current regime has little interest in pursuing reform, but who would have expected otherwise? On the other hand, the last administration, particularly from 2008 to 2010, had the ability to make significant change, and failed miserably. The difference is that we expected the audacity of reform from President Obama, but he kept far away from any serious change. Bear in mind, the Democrats were in perpetual fear of being disdained as the “soft on crime” party, and so they proved their mettle by being as hard, if not harder, than the Republicans.

Because that’s what they perceived Americans wanted.

Even today, criminal law and penal reform are largely fair-weather issues. The next terrible thing that happens, the next squirrel, will make the crowds go running for cover, calling for death sentences. There’s no serious call to end “harsh norms,” only to shift them away from those whom we hated yesterday to those whom we hate today. In the meantime, the old harsh norms remain stagnant, because people are taken mostly by individual sad stories rather than systemic failures that filled prisons and left us with an intractable mess.

It will take years, extremely serious and knowledgeable thought, and some very hard choices to undo the fiasco created over the past 50 years. But the new harsh norms for the latest targets of the panic manage to materialize overnight, while people create hashtags about the old ones, as if that will fix the problem. Not only are cultural norms indivisible, but they defy gravity when it comes to crime. They go up, but they don’t necessarily come down.

Friedersdorf: If I may belabor our tangent: One can grant that Harvey Weinstein has not yet been convicted of any crime, and share your misgivings about accusers of uncharged crimes being allowed to testify in any criminal proceedings, while also recognizing the overwhelming evidence, beyond any reasonable doubt, that both Weinstein and Bill Cosby behaved abhorrently toward many women over many years.

What I regard as their clear villainy is a separate matter from their fate in the courts. For all my contempt for both of them, I want them afforded full due process and the presumption of innocence in criminal court. And I generally favor steps like excluding ill-gotten evidence and statutes of limitations that sometimes result in guilty people going free. As you wrote, “I appreciate that outcomes I would prefer aren’t necessarily the best outcomes, or the right outcomes, from a broader perspective.”

But if we both recognize that actual guilt and the prudence of a criminal conviction aren’t precisely the same thing, doesn’t it follow that people aiming at truth must sometimes talk of perpetrators who’ve never been found guilty at trial? Extreme care should be taken when doing so. It may be that treating people as innocent if they haven’t been convicted of a crime is the least bad cultural default. It is mine.

But surely there is some threshold beyond which the public has enough evidence to reach a contrary judgment. I can’t tell you exactly where that line is. I can cite examples that I regard as clearly on one side of it. I watched video tapes of those Los Angeles cops beating Rodney King. No jury verdict is going to cause me to treat them as innocent of wrongdoing, and if one of them applied to work as a private security guard for an event I was organizing, I would reject him on that basis.

Would I be wrong to do so?

I’ll give you the last word on that tangent. And to move things forward, what are you thinking of when you write that “it will take years, extremely serious and knowledgeable thought, and some very hard choices to undo the fiasco created over the past 50 years”? I agree. But I wonder what you think of as the “hard choices” that confront us—and insofar as you know, what you would choose and why.

Greenfield: Ah, the Central Park Five, hated even more than Weinstein, confessing to a heinous crime, the genesis of the superpredator myth. And innocent. There is a joke that there is no appeal from the court of public opinion. There are also no rules of evidence, no burdens of proof and no opportunity to defend, yet people have a right to believe whatever they want to believe. Believing is seeing. And when they see it, they’re certain, absolutely certain, about who’s guilty.

To ask whether you would be “wrong to do so” may be the wrong question. You’re going to do so, regardless, and you have a right to do so, and a right to be wrong. You include the caveat that “extreme care should be taken when doing so,” which is obviously better than the alternative.

But is that enough? Who’s to say if the care taken is extreme, or “care” at all? Once someone believes, “motivated cognition” takes over and we argue our point to the bitter end, no matter how wrong we may factually be.

I have no clue what Weinstein did. I wasn’t there, and I lack the capacity to see into other people’s minds. But then, I’ve come to grips with my limitations long ago, and recognize that there are things I will never know. Many have not, and don’t let the absence of facts, or actual knowledge, get in the way of their believing what they choose to believe, and they do so with a Dunning-Kruger level of certainty. They may not be wrong, but that doesn’t really enter into their equation.

They believe they’re right, and that’s good enough.

The processes we employ are still far from perfect, and wouldn’t it be great if there was a red light that went off over the witness stand every time a person lied? But there isn’t, so we try our best to search for the truth and, recognizing that even due process fails us, have defaults like Blackstone’s ratio to bridge the gap. And still we over-convict the guilty and convict the innocent. Occasionally, we kill them, and that’s with the full panoply of due-process protections. If we can’t be certain we’re getting it right when doing everything possible to provide fair process, can we rely on our certainty of guilt without any process beyond our personal sensibilities?

As for what “hard choices” are before us:  People want a perfect system, as well they should, but neither systems nor people have ever proven up to the task of perfection. Mistakes are made. The guilty walk free and commit new crimes. Innocents are locked away, or killed, and their lives, their families’ lives, are destroyed. Criminal-defense lawyers tend to have a great tolerance for ambiguity, or we would go nuts at the unfairness of outcomes. We confront daily the imperfections of the system, of the people (including ourselves and our clients) in the system.

Is there an answer? Beats me, or at least not one I can offer. I view the criminal legal system as a Rube Goldberg machine, to which we add the occasional boot or tea kettle to fix one problem that flares up, only to find out (sometimes later, more often ignored at the time even though we “told them so”) that it caused some other problem. And then we add another boot to cure the latest symptom, keeping the cycle going.

We need to recognize that the system will invariably leave crimes unpunished and victims without justice, whatever justice means. We can’t react to every sad story of a gap in our latest outrage with the typical “something must be done” syllogism. We’ve seen disaster after disaster result from knee-jerk, simplistic reactions, and we’ve spent decades trying on new boots to fix the old boot problem. In the meantime, real people are harmed by our good intentions.

We need to resist the urge to address the horror du jour with untenable solutions, even when mobs adore them and denigrate anyone who questions them. At the moment, “affirmative consent” is a glaring example. When “no means no” was the test, it was a clear, workable, constitutional line. Sure, there were exceptions such as the incapacitated person, but we could easily accommodate the anomalies. Affirmative consent doesn’t work—its parameters can’t be defined and there are post-hoc excuses built in that undermine its efficacy (“I said yes, but I felt pressured, coerced, so it really wasn’t a yes, but a no.”)

To make a viable system that works the best it can, even recognizing that it will fail on occasion, we need to stop using flawed, aspirational assumptions as its basis. We need to rely instead on cold, hard reality—and a recognition that we cannot come up with a way to cure every ill people manage to cause. We will still fail at times, but we can do better if we get real about it.

Friedersdorf: As we conclude, I wonder if the news is giving us case for a bit more optimism: In Florida, the state that long disenfranchised more adults than any other for bygone felony convictions, a supermajority of voters passed a constitutional amendment that will restore voting rights to more than 1 million people. Does that result, or anything else about the 2018 elections, change your outlook at all?

Greenfield: It’s interesting that you’ve raised Florida’s Amendment 4 as an example. It re-enfranchises about 1.4 million ex-cons who’ve paid their debt to society and deserve to be restored to their rights as citizens––certainly a good thing even if other rights than voting remain denied them.

And yet, Amendment 4 omitted an entire class of defendants convicted of sex offenses. So does it prove that we’re moving toward reform or that we’re just changing the head on the corpse? If there was a principled approach to reform, then it would apply to all rather than selectively. Do the voters understand and appreciate the underlying principles at stake, or is this just pushing their happy button of the moment?

I won’t complain that good things are happening, even if for bad reasons, but if the public had a deeper appreciation of the issues, the principles, the rationale behind the solutions, they wouldn’t leave out unpopular swaths of people. Even worse, this lack of principled understanding is producing a balancing act of reform for the favored and increased harshness for the disfavored. It’s the disfavored who most need of reform, much as it is unpleasant speech most in need of protection.

In response to some questions, I’ve mentioned some examples, such as the Central Park Five. Consider another that I neglected to mention, the Duke lacrosse team, which adds one additional dimension to the problems we’re facing. Even after it was absolutely clear that there was no rape; that the prosecutor, Mike Nifong, was dirty; and that the white male athletes he wrongly charged committed no crime, many members of the Group of 88 Duke professors who placed an ad that appeared to presume the guilt of the players stood by that statement—not because the alleged rape happened, but because the allegations had focused attention on what they alleged was a campus atmosphere of sexism, racism, and sexual violence.

Passion has overcome facts and logic, and reality is no longer a constraint in condemnation. This may be close enough for an academic panel at a philosophy symposium, but real people’s lives are being affected and even destroyed in the process of elevating narrative above reality. They don’t seem bothered by the collateral damage. I value every life, and reject the notion that anyone should be sacrificed for some cause.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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