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Let's Talk About Lawyers

By J. Freeman on 04/01/2018 08:50:16

So, put yourself in my shoes for a minute. It's September 2014. You've been arrested for a crime you didn't commit, and which, in fact, is not even a crime. You have no real accusers, and it seems that no one can name a single thing you've done wrong. Despite that, you've been tortured and threatened with death, deprived or fundamental rights like the ability to bear arms and attend your church, and lost over $4,400 in bond. To make matters worse, your home has been placed under near-constant watch by a police force that may as well just be a bunch of gangsters with badges, forcing you to flee. One reaction I've heard over and over again from people contemplating that problem is: "Well, no big deal. You'll have lawyers chasing you down to set this straight, because there's going to be a huge payout in the end." I've even heard people say (more than once) the words "instant millionaire" in shrugging off the plight of people whose civil rights are violated by the police.

Those people simply don't know how this works.

I don't really want to dig into the big-money-lawsuit angle on this today, but what I do want to talk about is the lawyer angle. There's a stereotype out there that tells us we have an endless supply of "ambulance chasers" who are looking to file any frivolous suit imaginable. Some suppose that obtaining one of these lawyers is as easy as rolling over to sign the paperwork. The prevailing mindset seems to be that everyone is suing everyone else over everything and that our biggest problem is endless abuse of the system in baseless suits. "Too many lawyers" some would say. Well, I can't speak for medical malpractice (which receives the brunt of such arguments), but I can tell you that there is a severe shortage of criminal defense lawyers, and finding one to defend a free-speech case ain't easy.

First things first - I didn't even try to get a public defender. Back in 2014, I undoubtedly had enough money not to qualify for one. And believe me, in Georgia, you've got to be really poor to qualify. Regardless, I didn't want the help of the public defenders, because I had seen how they operate. Even before my arrest in 2014, I was very interested in the functioning of the courts, so much so that I would (on occaision) spend time visiting the Hall County courthouse to watch the proceedings. I was, I should note, the only such community legal enthusiast. I could drone on and on about how unjust I believed the proceedings were, but I won't bore you with that. What I will tell you is that American courtrooms are plea factories. Virtually every case that comes into the courtroom ends in a plea deal. Some poor sap is dragged in, accused of something generally so frivolous that it deserves no punishment, and is made to pay a fine. Whether he is guilty or not and whether the crime is a crime or not is no matter. All that matters is that the fine he pays for pleading guilty is less than the cost of pleading not-guilty and going to trial. And while you probably haven't seen it as much as I have, odds are good you've experienced this yourself due to some trifle like a traffic ticket. And of course, facilitating all of this are the lawyers - public defenders and prosecutors alike.

The situation in Hall County, Georgia is particularly embarrassing. The prosecutors set up tables in the hallways on traffic ticket days and file everyone in, calling people up and running them through and haggling with them by the hundreds. It looks like some kind of third world bazaar. And what does the public defender recommend? He recommends that you plea guilty, cough up a few hundred bucks to the state, and go about your business. Innocence is irrelevant. Maybe he's right to do it that way. The legal system has become so unjust at this point that losing in court really is a better financial strategy than winning, but in this case, I wasn't prepared to lose. I was planning to fight for my rights to speech and religion to the bitter end. The public defender doesn't really play that game.

But I'm getting off topic. Remind me another time and I'll tell you more about my experiences with public defenders.

The point is this: I needed to find a private criminal defense lawyer, and it wasn't easy to do so. In looking for a lawyer, I first limited my search by taking the advice that I hear from everyone (both lawyer and not) that I should only look for a lawyer from outside the county where I was accused. The prevailing wisdom is that a lawyer too close to home is more motivated to hurt you than he is to help you. Remember, if the police can come out of the blue and have Joe Schmoe accused of a crime, they can do the same to Joe Lawyer. Joe Lawyer would prefer not to have a target on his back in his home town. Besides, Joe Lawyer also has to deal with this prosecutor and this judge on a regular basis. If he fights too hard for his client, Joe Lawyer might find that the state is less willing to cut him some slack in the future. There even exists a form of prosecutorial misconduct so common that it has a name - "horse trading" - in which prosecutors and defense attorneys agree to let some defendants go free in exchange for guilty pleas from others. So, pick a lawyer from your own town and you might just end up one of his bargining chips. Now I suppose that every lawyer wouldn't engage in this kind of illegal and unjust activity, but if your lawyer is too close to home, the temptation exists, and if the temptation exists...

I went through both the phone book and the internet digging up the name of every relevant lawyer in neighboring Gwinnett County that I could find. And then I started making phone calls. I don't know how many I communicated with, but it was alot. You would think that a case like mine - one in which I had been arrested on an invalid warrant - would be an easy win for a defense attorney, a great way to make a quick buck and put an extra tally mark on the "wins" column. And since Gwinnett County is so staggeringly populous, I figured that in short order I'd have my choice of a slate of enthusiastic lawyers.

It didn't turn out that way. In fact, after extensive searching, I found only two lawyers who were willing to take the case, and both to the tune of thousands of dollars. I picked the one who seemed to have more criminal defense experience. Some months later, I ended up switching to the other one. The total cost of hiring lawyers for the pretrial and trial phases in my case was $5,000.

Five. Thousand. Dollars. Add that to the $4,400+ that we had already paid in bond, and within about 4 months of having been arrested, the false accustion against me had already cost about $9,500 bucks. And those are just the hard, easily quantifiable dollars paid in direct response to the case. At the time, the median household income in Georgia was about $48,000. Remembering that most households have a second income, I don't think it's unfair to say that we were forced to drop a third of an average Georgian's annual salary (and we aren't done spending yet folks). Around this same time, the federal reserve estimated that two-thirds of Americans couldn't afford a sudden unexpected expense of $500. We had paid that 19 times over.

I'm forced to question aloud, "If a person has to spend $10k to get a fair trial to defend his religious speech, does he really have a right to speech, religion, and a fair trial at all?"

The sixth amendment to the US Constitution guarantees that everyone has a right to a lawyer. In reality, meaningful access to a lawyer for a criminal defense is only available to the very poor (who get subpar representation from the public defender) and the very rich. For the rest of us somewhere in the middle, we get to make a choice: do we want to surrender our right to a fair trial with competent counsel, or suffer financial collapse? In my case, there was no choice. I wasn't just defending my right to a fair trial; I was defending the right of every American to speak freely about abuse in his government and to engage in Christianity as the Bible prescribes. If that meant that I lost everything I had, then that's what I would do.

I submit to you though that there's no compelling reason for us to have to make that choice, because the price for obtaining a lawyer has been artificially inflated, and that problem can be easily corrected. Think about it: I have zero professional legal training, but with a very little assistance and the power of internet research, I was able to make my own legal arguments before the supreme court and win againt seasoned professionals. And remember, for me to get to that point, my hired professionals also had to lose at the trial stage. This demonstrates that being a licensed professional in the legal field does not necessarily make the lawyer any more competent than an ordinary person.* Meanwhile, lawyers are raking in huge amounts of money primarily because of the cost of becoming a lawyer. To get their license to practice law, a lawyer has to attend years of school at enormous expense. As a result, they need a great deal of money to keep their doors open, and they're able to demand a great deal because the prohibitive cost of entering the field means that there isn't much competition.

So we've got a situation here in which almost no one can afford a lawyer, and that guarantees that almost no one gets his day in court. It's a problem that simply must be fixed if we're going to say we live in a just society, and the problem is regulation. It's a crime to practice law without a license, and the onerous burden of getting the license ensures that we don't have the lawyers we need, even though cases like mine demonstrate that the licensure doesn't actually result in better and more competent lawyers.

The few lawyers we have are able to pick and choose the cases they'll take because of a lack of competition, and they tend to take the cases that will give them the easiest and largest payoffs. This ensures that civil rights cases like mine don't get the legal attention that we all desperately need them to get, because it is particularly difficult to get money out of those cases. So the legislature has given us a regulation: "We want everyone to have a competent lawyer, so if you want to practice law you have to prove that competency by going to law school." The unexpected consequence, however, is that there aren't enough lawyers to go around, and virtually no one gets a competent lawyer.

So on those grounds, I'm going to propose (again) something that I've been calling for as far back as 2013 - the deregulation of the legal industry. I maintain that there is no need for a professional license for lawyers. The free market is perfectly capable of deciding which lawyers are adequate to get the job of lawyering done. There's nothing to stop professional societies from giving lower-cost training and certifications to lawyers so consumers can make good decisions about what lawyers to hire, and, just as in other industries, the person who offers the best service at the lowest price will rise to the top. If the onerous regulations are removed, more intelligent people who can't afford to go to law school would enter the field, and we'd all be better off for it.

But don't expect the legislature to enact any such reform any time soon. The unfortunate reality is that, whether or not regulations on the legal profession are hindering our rights to a fair trial, too many people are profiting off of the regulations for us to expect any change. Becoming a lawyer is a path to making huge sums of money, and the lawyers have an interest in keeping it that way by keeping competitors out of the market - and don't think for a minute that their bar associations aren't continually lobbying to ensure that lawyers make more money, do less work, and have less competition, even if those perks come with the erosion of our rights. Seeing also that lawyers are more likely to end up in the legislature than anyone else, we shouldn't expect our lawmakers act, because acting is opposed to their own self-interest. And don't forget, higher education - another powerful lobby - also has an interest in ensuring that they remain the gatekeepers to professional work.

So, the high cost of getting a lawyer is a major problem with the current regulation of the legal profession, but I'd like to point out to you one more problem that is much more dire: the law license creates a buffer between us and our government. Consider: judges are the most powerful people in the land. Behind them are prosecutors. These two office-holders can make or break your life, and (as we've seen too often) the judges in particular can change the law through precedent (for better or worse) in ways that the legislature can scarcely correct. So, who is eligible to run for these two-of-the-most-powerful positions in Georgia? Only lawyers.

Today, America is suffering under a weight of prosecutorial misconduct and judicial indiscretion which it can hardly bear. It would be great if we could elect some people to replace the incompetent or criminal in these offices so that we can be governed by just laws, but we're essentially incapable of doing so for the plain fact that there are not enough people who are legally qualified to run for office. Most often, there is no challenger to replace a sitting district attorney or state court judge. Once one of those offices is filled, it is very likely to sit that way for a long, long time. And that's a problem. I lived in Hall County for several years before I was arrested. Elections came and went. I never had an opportunity to vote for anyone in opposition to the prosecutor and judge who had me wrongly convicted. Why? Because there aren't enough lawyers. And worse, after I've been falsely convicted, more years have passed. I'd love to take Judge Baldwin's seat from him (and my case has shown that I can handle the law more competently than he can). But guess what? I'm not eligible to run. Myself excluded, I'd love it if anyone competent would take his place, but I'm not going to hold my breath until a challenger comes forward so that I can vote for him.

If we're going to claim that we live in a free society, we can't continue under the legal regulations we have today, because they ensure that a small group of college educators and existing lawyers have essentially become king-makers empowered to decide who is and is not qualified to run for our most important offices. Who are these people? They aren't elected officials; they're just more of the massive bureaucratic buffer zone that separates the American people from living in a free society.

And people wonder why anyone would give the education system the digitus.


*Of note, I'm not bashing my lawyers here. My trial was slanted. Whether or not they could have done better in a bad situation I won't Monday-morning quarterback. There's only so much that can be done when the court has decided to wring a false conviction out of someone.

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