D’Souza and his background

Ken at Popehat finds my and others’ reaction to Michael Shermer’s letter requesting lenient sentencing for Dinesh D’Souza depressing.

D’Souza’s attorneys are asking the court to exercise its discretion to go below the Guidelines and impose a non-custodial sentence — not to send him to jail, in other words. That’s not even a little surprising. I would do the same thing. So would any competent defense attorney. Given D’Souza’s lack of record and his background, it’s a reasonable and achievable goal. It’s no sure thing, but many judges would do it. (If anything D’Souza’s privileges work against him on this issue — the “rich and famous people shouldn’t get special treatment” narrative will be powerful. With some judges he’d have a better shot at the break if he were an obscure middle manager.)

Well, the “and his background” clause is an issue, isn’t it. “And his background” could mean “with his background he should know better” or “with his background he has less excuse for fucking up” or similar thoughts along those lines. There’s also the fact that with his background, he was and will continue to be in a position to do more harm than most people can.

What bothers me is the reaction to a letter written to the judge in D’Souza’s favor by Michael Shermer, a prominent skeptic.

Shermer, who has debated D’Souza, says he has known him for twenty years and finds him forthright, honest, polite, and courteous. Shermer expresses his admiration and respect for D’Souza. To anyone who practices federal law, there’s nothing at all remarkable about the letter.

I get that, but on the other hand…again, there’s some privilege-deployment here. D’Souza can call on some Names for these letters. He has advantages, and that’s one of them. The whole setup seems less than impartial. It may all be very normal and routine, but that’s not the same as okie doke and harmless.

But the mild letter has provoked outrage, because of Shermer’s and D’Souza’s opposite ideological positions. This blogger screams “TRAITOR.” Ophelia Benson characterizes it as “Important Guys gotta stick together.” ““WTF?” asks P.Z. Myers. “Let D’Souza’s fellow Christians and conservatives defend him. Shermer by doing this has betrayed most of the skeptical community,” says someone on Twitter. “No one deserving of the title ‘skeptic’ could possibly believe that D’Souza is forthright and honest, or that he is an ‘important voice in our national conversation,'” says skeptic Ed Brayton. I’ll spare you the quotes from Twitter.

Is it really wrong to think that professional skeptics shouldn’t go to bat for convicted frauds?

The reaction to Shermer’s letter disappoints me. It depresses me. It doesn’t make me feel that way because of how I feel about D’Souza. It makes me feel that way as a defense lawyer, and as a citizen. This scorn for appeals for mercy is an old story; I’ve condemned it before when someone on the opposite side of the political spectrum was sentenced. But it troubles me every time it repeats. It would be a better nation if people could recognize the good qualities of people they vehemently oppose. It would be a better nation if we were wary of the justice system no matter what the ideology of today’s defendant.

No I really don’t think it’s ideology. The issue is the attitude to truth, not the ideology.



  1. says

    We also should consider the possibility that Shermer fears someday being convicted of a felony himself and hopes D’Souza would go to bat for him in return. You scratch my back, I scratch your, that sort of thing.

    And what is so bad about D’Souza going to prison for what he did? Aren’t Conservatives themselves typically “tough on crime” people? Oh, they are……unless THEY are themselves the criminals!

  2. gmcard says

    His whole blog post boils down to a “mercy for mercy’s sake” argument. No. For most of the readers here, I think it’s safe to say we’re not Christians, and we won’t be guilted into some “judge not least ye be” nonsense than puts the onus for forgiveness on the victims of crime. Mitigating circumstances are fine, demonstrated contrition and rehabilitation is fine, examining whether the laws and prescribed punishments themselves are just is fine. But no one is owed our mercy “just cuz”. I’ve never sought to subvert our democracy via public corruption, and have no qualm throwing the first stone for that crime. D’Souza has done nothing to merit mercy for that crime. Shermer’s letter couldn’t say anything about D’Souza’s remorse for his crime or steps he’s taken to stop public corruption in the future. All the letter could say is that D’Souza’s really a very honest guy–which is utterly belied by D’Souza’s public actions right now, that he tells the court he’s remorseful for his crime while outside court in public and private he claims to have done nothing wrong and is being unfairly prosecuted.

    So no, there’s nothing wrong with us not extending mercy to the remorseless, or in finding fault with those who lie when pleading for mercy for another.

  3. Pierce R. Butler says

    Why should D’Souza face jail time for the type of crime he has confessed to?

    Five-digit violations of campaign finance law are by definition not committed by “little people”, so it would be cruel and unusual for D’Souza to endure the sort of punishment routinely meted out to his sociopolitical inferiors for shenanigans unknown to their class.

  4. smrnda says

    D’Souza’s crime – he knew it was illegal, did it anyway, and there are no extenuating or urgent circumstances that make his decision to do an illegal thing more understandable. He wasn’t faced with having his power shut off so he tried to steal and re-sell a bicycle. If he gets anything but the full term, it’s just that rich and privileged people don’t have to deal with jail.

  5. Peter Nee says

    Whatever his personal character, D’Souza has in his public appearances as a “public intellectual” has shown himself to be arrogant, shallow, dishonest, petty, and polemical. If Shermer actually held to the principles of rationality and love of the truth that he claims he does, he would find D’Souza contemptible.

    Instead, I think he sees himself and D’Souza in the same club. Men (and I do mean men) who make their living by getting others to pay them to reliably espouse and express certain opinions in writing and in speeches. They may or may not actually believe the things that they say, or actually hold themselves to the moral or intellectual standards they prescribe for others but they have established a valuable brand that can feed them for the rest of their lives. They count this not as a case of good fortune or even responsibility, but rather an act of consummate skill in working the rubes. And they admire this skill in both themselves and others, no matter if those others are working for causes diametrically opposed to the their own.

    One is reminded of the bastardization of etiquette that is “collegiality” in the U.S. Senate.

  6. dshetty says

    I think Ken is mixing up multiple issues
    Should we have mercy appeals even for the guilty? – of course – But the merits of the each case have to be independently evaluated. There is nothing in D’Souza’s case that suggests he deserves a more lenient approach other than this is the first time he has been caught. And I hope I’d say the same if it was some well to do liberal guy who was caught bribing people

    Should the penalty be this harsh for campaign contribution fraud – I don’t know – but it is what it is. Change the law if you don’t like it.

    If it was some other famous skeptic (not Shermer) who sent the letter , would we react in the same way? I would like to think , yes. You cant call yourself a skeptic and call D’souza honest in the same paragraph and expect to have your credibility intact. Does it happen – i.e. Do skeptics overlook things in people they consider friends? All the time – But that doesn’t mean we don’t get to call them out for it.

    Should defense lawyers be attempting everything they can, legally, to have the best possible outcome for their clients? – of course – I don’t like it – but it is what it is (and one of the reasons people detest lawyers)

  7. screechymonkey says


    I agree. Ken seems to be interpreting the criticism of Shermer as being based on (1) an assumption that there is something unusual about writing “support letters” on behalf of a defendant awaiting sentencing; and (2) a belief that one should never write such a letter on behalf of an ideological opponent.

    But I don’t see Ophelia or anyone else relying on either of those claims. I can imagine there would be circumstances where I would write such a letter on behalf of someone with whom I disagreed vehemently on political or religious issues — I doubt such things would enter into my decision at all.

    And of course, Shermer’s letter does more than simply defend D’Souza despite his opinions; Shermer holds D’Souza’s “contributions” to the public discourse up as an affirmative reason for leniency.

    I admit that in general, I would be less likely to write such a letter than the average person. I would certainly need more to go on than “well, he’s been nice to me.” Practically everyone is nice to their friends, or to professional colleagues (and at a certain point, a recurring debate adversary really is a sort of colleague — no more an adversary than Tom and Dick Smothers were to each other). I wouldn’t presume that someone treating his friends and colleagues well sheds any light on what the appropriate punishment is for a criminal offense.

  8. thephilosophicalprimate says

    I find Popehat’s criticism utterly point-missing and baffling. Here’s the key to what he seems to get entirely wrong: “This scorn for appeals for mercy is an old story.”

    As far as I can tell, no one criticizing Shermer has expressed scorn for appeals for mercy in any general sense: Certainly, Ophelia and Ed haven’t. They’ve expressed scorn for the very specific matter of someone whose whole career is supposed to be devoted to truth-seeking skepticism (Shermer) appealing for mercy on behalf of a professional liar (D’Souza), especially when the matter at stake is a form of fraud (i.e. lying for gain). That D’Souza lies regularly and knowingly — both to push his political agenda and to advance or protect his personal gain and profit — is as well-established a fact as any reasonable person could possibly desire. And having faced D’Souza in debates, Shermer cannot possibly fail to know that D’Souza is a willful and enthusiastic liar; I think it’s extraordinarily reasonable to take the position that Shermer having found D’Souza personally charming is NOT even remotely close to being a good reason to go to bat for him in court.

    This makes Shermer’s action not only worthy of criticism on its own demerits, but also raises perfectly reasonable and legitimate questions about Shermer’s motivations, and begs analysis of the context and power relations involved. Frankly, I find the narrative of “Privileged, ideologically-driven asshat offers support to another privileged asshat with slightly different ideology” to be monumentally unsurprising; but I’ve witnessed the inner workings of a lot of good ol’ boys networks over the years, so I’m especially cynical.

  9. says

    Reminds me a bit of the Scooter Libby case. After Libby was convicted, and awaiting sentencing, there was this HUGE outpouring of letters to the judge from everybody who was anybody, all vouching for Libby’s character, and his good works, and pleading for leniency, and arguing against–horror!–a prison sentence.

    The judge seemed a little nonplussed. He was like, we put people in prison every day here. That’s what we do. And suddenly all you people are upset because–what?–it’s someone you know? Deal with it. Then he sentenced Libby to prison, and then Bush granted clemency (no prison time).

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