Saturday, August 14, 2010

Wendy Murphy, Esq.: Lawyer, Pundit, Bullshitter.

Mr. Gillette:  Great post on lawyer-pundit Wendy Murphy!  This is the first I've heard of her, as I don't catch much cable news these days.  In fact, people like Ms. Murphy are the main reason I stopped watching cable news years ago.

But I am going to do my best to defend Murphy.  In her own defense, this is what she says:

You have to appreciate my role as a pundit is to draw inferences and make arguments on behalf of the side which I'm assigned. ... So of course it's going to sound like I'm arguing in favor of "guilty." That's the opposite of what the defense pundit is doing, which is arguing that they're innocent.
In other words, she considers herself to be a zealous advocate for a position, with the viewers serving as the jury.  To the extent that her claims don't match the evidence, she simply loses the argument.  What's wrong with that? (Oh, by the way:  This philosophy has a nice side-benefit of making for better television--nothing is more boring that watching (or listening) to people agree about everything.  That's what PBS and NPR are for:  falling asleep to. This is one reason why I'm defending Murphy in this post.  We are agreeing too much!)

Anyhow, one answer for "what's wrong with that" is that lies are not part of zealous advocacy.  Mr. Balko accuses Ms. Murphy of lying, but he makes a weak case.  It seems to me that she's guilty of nothing more than bullshitting (a.k.a, the lawyer's art).  (To define our terms, "bullshit" is a statement made with reckless disregard for the truth; a "lie" is a statement the speaker knows to be false.)

For example, Balko criticizes Murphy's assertion that "half—half—the prisoners in California are illegal aliens."  He starts by stating that he can find "no study, report, or government data to support that assertion"--giving the impression that Murphy must have made up the number on on the spot.   But then we learn that he did, actually, find a source for the the assertion--a 2005 editorial in the Investors Business Daily, which was then disseminated widely by  Balko criticizes that editorial itself as unsourced, but Ms. Murphy is off the hook on the lying charge.  The 50% stat is out there--she didn't make it up.  At worst, it was bullshit, and it really wasn't even that. 

The other major charge against Murphy is that she made her name defaming the falsely-accused Duke lacrosse players.  Balko reiterates the charges of K.C. Johnson:
In addition to the outrageous quotes highlighted above, on at least 18 occasions over the past nine months, Murphy has made demonstrably untrue statements. She also has engaged in a pattern of wholly unfounded speculation and has routinely denigrated due process.
Let's break that down:  (1) 18 "demonstrably untrue statements" and (2) "wholly unfounded speculation."

Demonstrably untrue statements

First, many of the supposedly "untrue statements" are hyperbole on their face.  For example, Johnson quotes Murphy as saying, "“Over 99 percent of cases indicted are in fact legitimate; the guys are guilty.”  Johnson's beef is that no study supports that assertion.  But Murphy didn't say there was a study.  This was just, like, her opinion, man.  Moreover, even the Fox News article you linked to, which criticizes Murphy, acknowledges that the "widely used and accepted statistic on false accusations of rape is that about two percent of charges are false."  In fact, this statistic is so entrenched that a law professor had to write and publish an article debunking it.  So the charges of "demonstrably untrue statements" are trumped up.

Second, there is a big difference between "demonstrably untrue statements" and "lies."  Just remember:  it's not a lie if you believe it.  Even beyond the Costanza defense, statements made with a mistaken understanding of the facts are not lies.  Where the mistaken understanding is formed in good faith, that's just a misapprehension; where the mistaken understanding is formed because of reckless disregard for the truth, that's bullshit.  But in neither case is there a lie.

Wholly unfounded speculation

Honestly, this is a tough charge to take seriously.  I can't think of three words that better define the role of "pundit" than "wholly unfounded speculation."  That's all people do on the 24-hour cable-news networks:  speculate.  No one thinks or believes that they have any special access to the facts.  They are just there to take the same four facts that everyone knows and speculate about them endlessly.  Getting worked up about that is pretty silly.

Finally, you raise the interesting question of Murphy's fitness, given her conduct, to be a member of the Massachusetts bar.  But none of the rules of professional conduct actually apply to her conduct, even if her statements could be construed as lies.  What all the rules share in common is a requirement that the lawyer act with candor when she is acting in her role as a lawyer.  The best example of this is Rule 4.1, which you neglected to cite:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
(emphasis mind).  This is clearly the most closely applicable rule, and yet even it limits the duty of candor to statements made while "in the course of representing a client."  Clearly Murphy has formed no attorney-client relationship with the networks she appears on, so this rule--and all of the other rules you cite--do not govern her punditry.

I think that's probably enough for now...But this provoked some more thoughts that I'll share later.  (If you're lucky!)

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