But as Ken reveals, his earlier words came back to bite him:
Self-evidence is rarely, well, self-evident. More to the point, anyone who writes stuff on the internet should realize that the words are there for others to read. This is true whether one asks a question that's ridiculously unethical, incredibly stupid or just addresses more mundane issues of the practice of criminal defense.A Note About Sarcasm
I'm only going to address one minor issue in the briefs and the tentative ruling, because it involves me and this blog. In March, well before Ms. Naffe sued and I appeared in this case, I wrote a post about Ms. Naffe's threats against Mr. Frey. In that post, referring to Mr. Frey's point-by-point questioning of Ms. Naffe's accusations against James O'Keefe, I dropped this line:
The defense attorney in me is tempted to say that this is the most thorough consideration of exculpatory evidence that I have ever seen from a Los Angeles County Deputy District Attorney, but that would be uncouth, so I will not, and you should definitely forget that I brought it up.
I thought that this was self-evidently a joke, a friendly swipe by a snarky criminal defense lawyer talking about a prosecutor. I was rather surprised to see both Ms. Naffe's counsel and — in response – the judge seem to take it literally. Such are the hazards of sarcasm. Or maybe I should say, as I always do to my wife, kids, law partners, and anyone who will sit still, that nobody understands me.
Write about a particular subject and someone will see it and use it against you. Write about a general subject and someone will try to use it to extrapolate something to be used against you. Or against all criminal defense lawyers, assuming they can get away with it.
On a few occasions, I've walked into court or a conference where someone, whether judge or prosecutor, will make an off-hand remark designed to make sure I know that they've read SJ. Given the number of posts here, there is a fair to middling chance that I've written something about them, about the issue, about their office, that wasn't entirely flattering. They want me to know that they know, so I know that they know that I know that they know. As if I didn't already know.
This is a risk that goes along with being a blawger. While all the angry IANAL commenters writing their simplistic yet hateful thoughts about cops, prosecutors and judges do so under cover of darkness, lawyers who actually take a stand and write substantive posts on the internet are fully exposed. We're here for all the world to see, and for all our adversaries to use against us at their leisure. And the people hiding under rocks are fearful of exposure? We are in the direct line of fire.
I'm well aware of this. I'm sure that Ken is well aware of this as well, particularly since he went from pseudonymous Ken to former federal prosecutor turned criminal defense lawyer Ken White. He's a very smart guy, so there is no doubt when he came out that he appreciated the consequences.
Some blawgers try to use this to their advantage, writing self-aggrandizing posts about themselves and their cases, laying out their arguments or angst online. It rarely works, particularly when their one-sided arguments fail to carry the day, and often shows them to be reckless in revealing client confidences. It's a risky game to play, and no one has yet to pull it off without disgracing themselves amongst their peers.
So blawgers who have made the choice to offer seriously (in the substantive sense, even if humor or sarcasm is the delivery mechanism) commentary on issues of consequences have put their butts on the line. Readers may not think about this part of the fabulous life of blawgers. You may love or hate what we say, but you don't really care that we have to walk into court later that day and have a judge peer over the bench furious about our less than enthusiastic thoughts of his recent opinion. You applaud? The judge, not so much.
One might hope that judges and prosecutors are all big boys and girls who are smart enough and tough enough to take some criticism. After all, the nature of what we do invites challenge. It's called an adversary system for a reason, right? And in fairness, we can revile a judge's decision one day, and applaud his decision the next. It's not personal (Godfather moment. Relish it.).
Well, that's not always the way it works out. Like the 7th grader who inadvertently farts in history class and suffers the nickname "Stinky" until graduation, people tend to remember the things we write that bother them, and it lingers. It's not so much that grudges are held as that fair disagreement or criticism is a slap that continues to sting. Well, maybe it is that grudges are held.
Ken, who occasionally makes his point by using sarcasm, faces this problem. So too, I suspect, other serious criminal law blawgers, like Bennett, Tannebaum, Matt Brown and Murray Newman. So do I. That's the risk of what we do. We can either write tepid, pointless, worthless garbage, and be embraced by the Happysphere, or hit hard and get hit hard in return.
On the bright side, there are also readers who respect what we say, and our fortitude in saying so. On the whole, we make a lot more friends in high places than enemies, because we have the opportunity to say what a lot of people (even lawpofs, who often hold shockingly strong opinions you would never discern from their public writings) are thinking but, because of their positions or fear of ramifications, would never say aloud. We do it for them. And if the price of doing so is the occasional blowback, it's a price we're willing to pay.
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