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Popehat unmasked : For a good cause

December 30, 2011

Popehat unmaskedI’ve gone back and forth with ‘Ken’ on the Popehat blog more than once over the last few years regarding his remaining an anonymous blogger.

Perhaps I don’t like anonymous bloggers. Perhaps I was envious of what is a dam good title for a law blog. Perhaps I am too defensive.

But no question I ran across the law blog because of it’s valuable insight and commentary running under the tagline “A Group Complaint About Law, Liberty, and Leisure. Ken didn’t hold a punch.

This morning, via Attorney Scott Greenfield, I found out who Ken is. He’s Los Angeles’ Ken White, a criminal defense lawyer with Brown, White & Newhouse.

Popehat was ‘outed’ when Radley Balko, senior editor at Reason magazine, and a policy analyst for the Cato Institute, specializing in vice and civil liberties issues, asked White to write about the culture of prosecutorial conduct for Reason.

Unlike too many other criminal defense law bloggers, Ken didn’t hold back on his views in the Reason article, ‘Culture of Misconduct: The Misplaced priorities of prosecutors.’

Yet state and federal prosecutors routinely fall short of this ideal (that prosecutors may strike hard blows but not foul ones). There are too many stories of convictions obtained through subornation of perjury, through suppression of exculpatory evidence, and through the willful use of unreliable, wrongfully obtained confessions.

It’s difficult enough to detect misconduct, mostly due to inadequate funding for criminal defense. But if detection is rare, redress is even rarer. Prosecutors enjoy “absolute immunity” from lawsuits, a privilege no other profession in America enjoys save for judges. In theory, state bars should sanction misbehaving prosecutors, but that is also vanishingly rare. Last September, USA Today found 210 cases in which federal prosecutors had committed ethical breaches so egregious that a federal judge personally rebuked the prosecutor, overturned a conviction, or dismissed the criminal charges entirely. The prosecutor faced serious discipline from a state bar in just one of those 210 cases. Recent studies of misconduct among state prosecutors in California have produced similar results: disturbing examples of misconduct and an even more disturbing lack of accountability.

Though White was finding the ‘veneer of anonymity’ wearing thin and knew that he would soon be ‘outed’ by a successful pro bono defense of a science blogger against a SLAPP threat, he still supports bloggers who choose to remain anonymous.

I’ll also now concede, fully appreciating White’s reasons for anonymity, that there is a place for the anonymous law blogger.

We use the phrase a lawyer’s lawyer in our profession. To me that’s always meant a lawyer among lawyers – someone willing to put up a fight (no matter the personal consequences), a lawyer who’s worked hard to earn their reputation, and a lawyer that gets the best work all by word of mouth, not advertising or promoting themselves.

White, who uses his blog not to promote his firm or practice, may be described as a law blogger’s blogger.

The fact is that bloggers like White do hone their legal skills through blogging, they reinforce their principals through blogging, and ultimately earn a reputation as an excellent lawyer through blogging.

Maybe 2012 will prove to be the year when more lawyers (especially criminal defense lawyers) realize a blog is not a cheap marketing ploy.

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