Mr. Rakofsky's Professional Suicide -- And Time I'll Never Get Back

Engagement is the key to success for those looking to make a lasting impression in the electronic world. Link to others, comment on their comments, talk nice about them in what you write, do all this and, well ... what exactly? I’ve never quite understood the dynamics of it all. What’s more, I am deeply suspicious of the on-line "community" and its emerging norms of conformity. No mob scares me quite so much as a self-righteous mob. I guess I sacrifice readers by not playing by the rules. Alas.

So I was intrigued my a lawsuit filed by a young lawyer named Joseph Rakofsky. He sued the Washington Post and a passel of lawyers, and near-lawyers, including friends of mine, who blog about the law. When it was reported that a District of Columbia judge declared a mistrial in a felony murder case because of Rakofsky’s incompetence, the blawgosphere apparently erupted in self-righteous fury. "See what happens when a newbie markets too aggressively? See? See? See?" I confess, I missed the controversy.

When I wrote about it earlier, a couple "blawgers" poked at me, tapping their keyboards in scorn, thumping hollow chests as they strut their electronic stuff. The web lowers inhibitions, you see, whether for good or ill. It didn't suprise me to see the pokes, it was a depressing reminder of why I prefer to avoid theories of engagement: I am grateful for readers, but not looking to join any self-styled "communities."

Rakofsky’s seventy-some page lawsuit in New York claims that the Post and others got the real story wrong. A conflict arose in the course of the proceeding between lawyer and client. The judge did not grant the mistrial because of incompetence of counsel, an event that almost never occurs. Rakofsky’s suit raises the question of whether he was mobbed by those reckless with the truth. That’s how the suit reads. If what was plead was true, the suit promised to raise some interesting issues.

It was a gutsy move by the young lawyer. Was David going put the would-be Goliaths on the run? Was he the victim of what I call the Rule of Eleven, a newbie refusing to play by the rules of the those who’ve given themselves the right to set standards for the rest of us? The suit raised the possibility that even on the Internet, a medium that prizes instantaneous expression above all, an outsider could stand firm and insist that the truth be told, that a rush to judgment was wrong.

Well, that was one possibility.

The truth is now emerging in bits and pieces. A friend sent me a piece of the trial transcript in the matter of United States of America v. Dontrell Deaner, presided over by Judge William Jackson. The transcript is dated April 1, 2011, but the words in it are no joke, at least not for Mr. Rakofsky.

"It appeared to the Court," Judge Jackson said, "that there were theories out there – defense theories out there, but the inability to execute those theories. It was apparent to the Court that there was a – not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to the detriment of Mr. Deaner.... I would find ... manifest necessity. I believe the performance was below what any reasonable person could expect in a murder trial... [I]t became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment."

These are powerful words. Only a fool would chose to litigate claims of defamation in the face of the these comments. There is simply no gloss that can cover the damning observations of the trial judge: Rakofsky was worse than inexperienced, he was, in the judge’s words, so poorly prepared that he failed to provide effective assistance of counsel.

I cannot fathom why this lawsuit was filed. Mr. Rakofsky’s prospects in the litigation appear poor. There is already grumbling on-line that he will be sued for vexatious litigation when this is over. A bad day in court is morphing into the promise of years of bitter litigation.

I am putting this suit on a my death watch list. Perhaps I should make a special list. It really belongs on a suicide watch. Mr. Rakofsky is a young lawyer. He is ambitious. His ambition got the better of him here. He’d have been far wiser not to pick these new fight. Loath though I am to lend encouragement to the self-styled policemen of the law’s internet, it appears as though they are the victims of this vexatious suit. I suppose there is something more dangerous than a self-righteous mob; in this case, the danger is a young lawyer without the sense to know when he ought simply to admit he erred.

In the meantime, I’m looking for a complete copy of the transcript in USA v. Deaner. I’ve read hundreds of trial transcripts in my time. This might be a collector’s item. I simply do not recall a case in which a mistrial was granted and such hostile words were uttered from the bench,

Postscript: I asked for it, so I cannot complain. Within minutes of posting this, I was called out on Twitter for being a coward, a sissy, lacking in integrity, and a host of other insults, by a few folks who feel passionately about what was written here. It being Sunday, and time not pressing down with its full weight, I responded in kind, thus throwing perfectly good time away, time I will never get back. And what's worse, it doesn't even feel good. Getting down and dirty with a mudslinger just get's you dirty. I know better; at least I think I do. A year or so ago, I de-linked from a bunch of sites and Twitter feeds that were going places that didn't appeal. But today. Well, today, I illustrated the point I attacked in this piece: the Internet to rageaholics what bars are to drinkers: places where it's too easy to go on a toot without regard for the consequences. So much though I don't regret the flame war -- it felt good; I regret the descent into simian rage. Mea culpa.

Every hockey team has its enforcers, guys who go out to draw penalties and try to distract opponents from the game at hand. Better players know to ignore then enforcers. I failed today, and hence draw some time in the penalty box. Live and learn, over and over and over again. 


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