Hey Folks,
I guess this is a rant. As a very politically engaged criminal defense lawyer, I read this site on a daily basis, these days with growing frustration. It seems to me that there is a great rift between journalism/blogging and accurate information about the law. Just about every day there is a rec listed diary that grossly misrepresents a legal principle, often combined with an expression of outrage and the vilification of actual human beings who the diarist imagines did something heinous, but who in all actuality did not. There are too many instances of this to list, but here goes a couple of them:
Last week, a rec listed diary called a poor woman something like a godawful horrible loathsome excuse for a human being for suing her own nephew who caused her to fall, breaking her wrist, when he gave her an enthusiastic hug. The diarist got it totally wrong, but can't really be blamed, because the whole internet got it wrong, and the clickbait articles mischaracterizing the situation proliferated everywhere. I read the diary and immediately knew that the woman was being demonized unfairly based on a simple misunderstanding of how the legal system works. See, in order to get insurance to pay for her injuries, the woman had to file a lawsuit and, although the named defendant was her loving nephew, this was just a legal fiction, because it was the insurance company whose money was at stake and it was the insurance company that was defending the case. That's just the way the law works. The law is full of counterintuitive legal fictions. There are literally thousands of them and if you take them literally, you will grossly misconstrue the situation. Prominent legal fictions that are commonly misunderstood on this site are that corporations are people or that spending money is speech, but that is the subject for another diary.
I didn't have time to try to correct the diarist who demonized this poor woman, but my lawyersplaining is not usually all that well received in the comments section anyway. People tend to be more attached to their ideological outrage than the principle of truth. There was never any hard feelings between the woman and her nephew. The nephew wasn't "confused" about what was happening, as so many examples of clickbait "journalism" claimed. It was simply the way the legal process unfolds in a case like this. Here is the boy explaining that the lawsuit was never the adversarial proceeding against a small child that the blogosphere portrayed it to be. The boy wanted his aunt to win the case and get her injury covered by insurance. Both parties loved each other and both feel that she has been horribly and unjustly portrayed as an evil person for playing out a legal fiction that is counterintuitive to laypeople. But, will the diarist post an apology or retraction? Will any of the commenters who were so quick to express their outrage against this poor woman in the most hateful terms learn anything from this? From what I've seen here, I kinda doubt it.
Today there is a rec listed diary by SemDem totally mischaracterizing a proposed law in Florida. This diary appears to be based on a blog piece that misconstrues a MSM article that in turn misconstrues the actual proposed legislation. I am not attacking SemDem, whose diaries I tend to enjoy and whose commitment to justice I feel aligned with. Nor am I defending this proposed legislation. I am just bringing it up as an example of how low the standard seems to be on this site for dissemination of information when it relates to the law. Here is the text of the bill that SemDem mangles in today's diary. If you can understand the legalese, you will see that SemDem is just completely wrong when he says: "if you knife somebody in the gut, the burden of proof will still be on you as to why you did that. But if you SHOOT somebody in the gut, the burden of proof will be on the guy who got shot to prove IT WAS NOT SELF-DEFENSE!!!" First of all, there is absolutely no distinction in the law between knives and guns or any other weapon or bare hands. Second, the burden of proof is NEVER on the defendant to prove self-defense in any state in this land. It is ALWAYS on the prosecution, once the defense puts the claim at issue. Again whether it is a knife or a gun or bare hands changes nothing. Third, the burden of proof in a criminal case NEVER falls on a victim in a criminal case, but on the prosecution. Contrary to many people's belief in what "justice" is, a criminal prosecution is not about the victim, it is about the state and the defendant. This is a subject for another diary as well. I agree with SemDem that this proposed law is beyond stupid and I hope that even the Florida legislature can see that, but not for the reasons SemDem points out.
SemDem seems to confuse basic self-defense, the law of every single advanced legal system in the world for the last four or five centuries, with Stand Your Ground, which is one small component of self-defense, which also, by the way, is the law in most advanced civilizations, but not all. Most frustrating to me as a criminal defense attorney, is SemDem's portrayal of the typical murder defendant invoking self-defense as a George Zimmerman, rather than the underprivileged person of color that most often sits in the defendant's seat. Although African Americans are only 12% of the population of this country, they are well over 50% of the murder defendants in this country. You see, the unfortunate fact is, economic and racial justice being in such a sorry state, black Americans are 7 times more likely to commit murder than white Americans. In many cases, the only thing standing between these black men and a life sentence in prison is a lawyer like me wielding the protections of the self-defense doctrine. So, social justice oriented people should be very careful about cavalierly attacking this defense, even though the occasional Zimmerman or police officer gets to benefit from it too.
I'm just frustrated that a community that should be all about disseminating to each other quality factual information is so often wrong about legal matters. We love Shaun King, but he was almost a daily offender on this point. You see, the law is counterintuitive and that's why really understanding the law requires an advanced degree and usually several years of practice on top of that. A lot of the diaries on this site excoriating some person for what they perceive as inexcusably heinous behavior are really just advertisements for how ignorant that diarist is of his/her subject matter. They read to me like the equivalent of someone vilifying a surgeon for cutting open someone who is already sick, because that sounds counterintuitive to someone who hasn't the slightest clue about how medicine works. I would be happy to offer myself as a legal consultant to people's diaries on legal topics, if they want to run it by someone with some experience and expertise. Let's try to be a little more cautious and do a better job of getting it right, please. Thanks for hearing me out.