Mimesis Law
1 May 2017

Cross: Patrick Frey, Prosecutor By Day and Patterico Online

February 16, 2017 (Fault Lines) — Scott Greenfield and David Meyer-Lindenberg cross Los Angeles County Deputy District Attorney Patrick Frey, renowned online for Patterico’s Pontifications.

Q. You spent your undergrad days in beautiful Ithaca, NY, learning to drink heavily and attending class when it was absolutely unavoidable. What was your major? What made you choose Cornell? Did you travel far from home for your fancy Ivy League education, or was central New York always your kind of place? Back then, was the plan already to become a lawyer, or did you still harbor greater ambitions?

A. As with any decision, there was a mix of factors at work. One of them can be summed up in a single word: overreaction. I grew up in Fort Worth, Texas, which is known to be pretty hot in the summertime. Money was tight, and the rule in our household was: no air conditioning unless the temperature reaches 100 degrees. There was a telephone number you could call for the current time and temperature, and when it got hot, we kids would call that number every five minutes or so. When the automated voice said 100 degrees, we ran to our parents to tell them. At night we would turn on the attic fan, but it would sometimes just pull in hot air, as the temperature could easily still be in the 90s at bedtime. At such times, I would go bed with a washcloth, recently soaked in cold water, draped across my forehead. Are you feeling sorry for me yet?

So, I overreacted. I was determined to go somewhere cold. Cornell fit the bill. Also, it was the best school I applied to — kind of a “we’ll apply to this one on a lark” sort of thing — and I got in.

I had a double major in music and English with a creative writing concentration. I had no plan, really. I just took classes I enjoyed.

Q. From Cornell, you went to UT for law school. Ithaca to Austin is a pretty big jump, and not just because of the weather. Why’d you go? Were you already sure crimlaw was what you wanted to do? At that point in time, would you have considered defense work?

You were a gifted musician, and you wrote a number of songs in the early 90s that were recently covered by indie acts. If you’d played your cards right, could we be writing about Patterico the rock star? (And can you link us to a decent performance of one of your songs?)

A. To be honest, I went to law school for lack of anything better to do. I also thought about attending graduate school for music or journalism, and went so far as to apply to (and get accepted to) the Medill School of Journalism at Northwestern and the University of Missouri School of Journalism. Ultimately I went to law school because it seemed to offer the broadest array of options, and I didn’t want to get boxed in.

That said, it had always been in the back of my head that I might want to be a lawyer. As a kid, I wanted to be Perry Mason. He always caught the bad guy! When I grew up, I realized it was actually the prosecutors who put the bad guys away. When I learned about RICO in law school, I had the idea that I wanted to be an AUSA who used RICO laws against gang members.

The reality is better than I imagined: I became a county prosecutor who uses the STEP act (California’s analogue to RICO) to put away murderous gang members. I think my cases are at least as interesting and significant as the federal RICO cases I have seen — probably more so, as I’m prosecuting murders, whereas the AUSAs tend to focus on drug and weapons trafficking.

I never really considered doing defense work, but I did take part in a criminal defense clinic at the University of Texas, in which we represented real misdemeanor clients in court under the supervision of local criminal defense attorneys. It gave me insight into some of the challenges that criminal defense attorneys face, such as dealing with difficult clients, unreceptive judges, and inflexible prosecutors. It also taught me that many people charged with criminal offenses — especially misdemeanors — are decent people who don’t have evil hearts, but are just fundamentally irresponsible, often because of involvement with drugs and/or alcohol.

Thanks for asking about my music. I don’t know if I would describe myself as “gifted,” though. “Rock star” would definitely be my profession of choice if I had the talent — but I don’t. I wrote some songs in the early 1990s that I performed very badly, but that I always thought could sound great if done by a professional.

Through the magic of the Web, I have been able to persuade some of my favorite artists to cover some of my songs. Some of these songs (including some of my original wretched performances) are on my Soundcloud page. If you listened to just one, I’d recommend Wrong Side of the Road — a song about the dangerous consequences of going against the grain in life.

Q. After law school, you went to California, passed the bar and signed on with the Los Angeles County District Attorney’s office. What made you decide to apply for a job on the left coast? Did they make you an offer you couldn’t refuse? Or is it just that you’d gotten used to traveling 1500 miles every three or four years? Did you work any other jobs in between law school and becoming a fixture in LA law enforcement circles, or was it straight to DAhood for you? And once you’d arrived, what did they make you do? Did they try to park you behind a desk and set you to writing briefs all day, like certain other prosecutors we’ve Crossed, or was it straight to standing in the well for Patterico?

A. I always had it in my head that I’d like to live in California. I wanted to live in a big, exciting city with access to a beach. I got a litigation job with Shearman & Sterling — a huge international law firm based in Manhattan that had a small office in Los Angeles (which has since been closed). I worked with some great people, but it wasn’t for me.

Once I arrived, my best friend there said I should apply for a judicial clerkship. I figured it was too late, but he said judges were starting to take clerks who had some work experience. I ended up landing a job with the Honorable William D. Keller of the Central District of California in Los Angeles. In many ways it was the greatest job of my life (something a lot of clerks say): a never-ending stream of fascinating and important issues crossed my desk. I loved it. I returned to Shearman for a year, but my wife (who was already a Deputy D.A.) seemed to be having a lot more fun in her job than I was having in mine. So I took a huge pay cut and came to the D.A., four years into my legal career.

Funny you should ask about writing briefs. Just 2 ½ years into my D.A. career, the office was experiencing a huge influx of habeas writs due to the Rampart scandal. The unit handling those writs had to be dramatically expanded, and I was one of a handful of people involuntarily tapped for that. I almost quit — I had joined the office to do felony trials, not to receive a third of the money I’d been making to do the same desk-bound writing work.

When I joined the D.A.’s office, I had offers in hand from other Biglaw firms — your O’Melvenys, Irells, and Arnold & Porters — and had turned them down to be a trial attorney. So I was pretty angry that I was being pigeonholed in a writing job right out of the gate in the D.A.’s office. But in the long run, it all worked out. I have been doing serious gang cases for over a decade, and I’m glad I toughed it out.

Q. Obligatory first trial question. When was it? Whom were you prosecuting, and whom were you up against? Going in, did you feel you were adequately prepared, maybe even that you had the win in the bag? And were you right? Looking back now, with twenty years‘ worth of practice to your name, what, if anything, do you think you should’ve done differently?

A. Great question. My first trial was a misdemeanor. The defendant was charged with a “terrorist threat.” (That’s a misleading label that does not require any connection to terrorism, but merely represents a “true threat” under First Amendment law. The name of the statute was changed to “criminal threats” after defense attorneys routinely stood up in court and said, apropos of nothing in the jury instructions: “My client’s not a terrorist!”)

The defendant in my case had threatened to kill the victim, his ex-girlfriend. She called the police, and while police were taking the report, the defendant called back to threaten her some more. She handed the phone to the officer, who heard the defendant threatening to kill her. At trial, the victim could not be found. A California Evidence Code provision allowed her statements to police to be presented to the jury despite her absence. (This was 1997, before Crawford v. Washington made clear that the use of such out-of-court testimonial statements violates the Confrontation Clause.) Also, I obviously had the testimony of the police officer.

I started the trial the Friday of my first week in the job. I prepared for it very carefully. The defense attorney — a smart, talented public defender — argued that the jury couldn’t possibly know whether the victim was scared by the threat (a necessary element), since they had not been able to see her testify and assess what type of person she was. I thought that was a silly argument. Today, having met a wide range of people, I’d be less skeptical of that sort of argument.

Our office in Huntington Park was located a five-minute drive from the courthouse. I was in my office when I got a call saying the jury had a verdict, and that the grumpy old judge wasn’t going to wait for me to get there. I quickly drove down to the courthouse in the rain and caught the jury walking out the door of the courtroom. They told me they just had found the defendant guilty. I was very excited.

For my next trial, a car burglary case, one of the more senior DAs came to watch my opening statement and my direct of the only eyewitness. I concluded the direct and we broke for lunch. The more senior DA said to me: “That was a great opening statement. You didn’t read from notes and you had a clear command of the facts. Great job. Just one question . . . are you going to have your witness identify the defendant?”

I was appalled. After lunch I asked the judge if I could reopen my direct examination to ask one question (“Do you see the person who broke into the car here in court today?”) The judge grumbled about it. He said everyone knew the witness was talking about the defendant, but he let me do it. I love to tell that story — and other stories about my young incompetence — to young lawyers. I think it’s important for them to understand that everybody starts out feeling uncertain and making rookie mistakes. I lost that case, by the way.

Q. In 2003, after ten years practicing law in LA, you started Patterico’s Pontifications, your blog, as a way to give voice to your conservative opinions in a way that didn’t involve the mass sending of emails. You‘ve spent your whole adult life in extremely liberal towns, something that does raise the question of where those views came from. Are they the product of where you grew up? How you were raised? Is it just that you’re a freethinker?

Before you began, you made the decision to blog anonymously and keep your professional and online lives separate. Even now, fifteen years later when your identity’s no longer as much of a secret, you’ve chosen to stick with your nom de plume and the Simpsons avatar. How come? Brand loyalty? Force of habit? Or do you still have that instinct to insulate yourself? In retrospect, was the decision to grab a keyboard and say what was on your mind worth it?

A. Keep in mind that I spent my formative years in Fort Worth, Texas, which is hardly a hotbed of leftism. I was raised by Republican parents. I do consider myself an independent thinker, though. College opened my mind and caused me to examine my beliefs. Most of them survived the test, but not all. I read James Baldwin and Ralph Ellison and learned about the reality of our history of racial discrimination. I met homosexuals, whom I had never met in Fort Worth, and learned that they are people too. That said, I have always been, fundamentally, a “conservative” — albeit one with some views considered left-leaning or libertarian, such as acceptance of gay marriage, or concern for the environment. I believe in the Constitution, the free market, liberty, and limited government.

As for secrecy, I always knew that it was likely my identity would be discovered, so I always blogged as if my name were known. I decided to go public in May 2004 when a journalist named Mark Glaser asked if he could use my name in a piece he was doing in the Columbia Journalism Review on the impact of bloggers on journalism. The L.A. Times had published a piece about Antonin Scalia’s speech to an organization with litigation pending before the Court. I wrote a post noting that Justice Ginsburg had done the same thing, and asked the editors why Scalia’s speech mattered and Justice Ginsburg’s didn’t. To my surprise, the Times responded by doing a front-page story on Justice Ginsburg’s speech, and it became a nationwide story. Glaser wanted to write about all that and wanted to use my name. I told him it was OK. I didn’t want to be in a position where people could learn my identity (which I assumed would not be hard to do) and use that information to threaten me.

I had my picture up on the blog for a few weeks or months early on. The Simpsons avatar is a cartoon drawn from that old picture. I look very different now — more pounds and more gray hairs. I’m wary of having my image on the Internet, since there are still some very obsessive personalities out there who don’t like me — and I have prosecuted and am still prosecuting gang members, including Mexican Mafia figures, for murder. When I prosecuted a member of the Mexican Mafia for murder in 2012, a local news station covered the trial in nightly news reports. I asked the reporter to make sure the camera was always pointed away from me, and he understood and obliged.

Blogging has brought both good and bad. I would say that, despite the SWATting and lawsuits and other nuisances, it’s mostly been a good thing, on balance. It’s brought me into contact with many, many people I never would have met otherwise — and many of those people are important in my life. In the end, it’s part of who I am. It’s hard to imagine myself without it.

Q. Being forced to self-censor at the workplace is nothing new. When patterico.com started out, it was in part a way for you to express tentative support for the Iraq War, something that probably wouldn’t have won you many friends among your peers in LA. But from the start, you also took a classic hardline stance on crime and punishment, including such standard fare as support for the death penalty.

Are liberal prosecutors as unresponsive to law-and-order rhetoric as your average liberal? Is there a subset of your views you could discuss at the water cooler, without fear of professional or social reprisal?

While the Left thinks of the ACLU, Bill Kunstler and Ron Kuby as heroes, the likes of Robert Morgenthau rarely get a mention. In general, is there any tension between left-wing attitudes and a willingness to prosecute sex or gang crimes? Are there secret Pattericos out there, people who agree with you but aren’t as willing to speak up? And now that your coworkers know who you are, do you find you’ve changed any minds?

A. There are definitely left-leaning prosecutors. I went to a retirement party last night for a good friend who is a solid lefty, and one of his other left-leaning friends addressed the crowd by saying that he heard Trump’s library just burned down. Both of Trump’s books were lost, he said, and Trump hadn’t even finished coloring one of them yet! Plenty of people laughed, and I was one of them.

So yeah, there are left-leaning or progressive prosecutors, to be sure. (I don’t like using the word “liberal” to refer to progressives or leftists. The true meaning of the word “liberal” is a lover of freedom, in the style of a Milton Friedman or a Friedrich Hayek.) But most of those are still law-and-order types. It’s a misconception that someone who believes in progressive politics necessarily wants to open the doors to the prisons, although it’s certainly true of a lot of progressives in public life here in California. I think our office has a healthy mixture of political perspectives, but most everyone would be considered supporters of law and order. That’s why they have the job.

Most of my political discussions at the office are with conservatives who are aware of my blog and like to hear my opinion on the latest Trump brouhaha or what have you. I also sometimes discuss politics with left-leaning people, and (unlike the way it happens on the Internet) we’re generally able to appreciate each other’s point of view and disagree in a respectful manner. I don’t have any opinions that I feel I have to hide. Like anything else in life, you choose whom to talk to, and how open you want to be with this person as opposed to that one. But there is no belief of mine that I would be ashamed to have people learn about — which is a good thing, since I am constantly spouting opinions in public under an easily penetrated pseudonym!

I’m a little embarrassed today at my support for the Iraq War, since I now view that war as a mistake. That said, based on what we (thought we) knew at the time, it seemed like the right decision. I was then, and remain today, a supporter of the death penalty, and have a defendant on Death Row in California. It doesn’t seem that he or any other Death Row inmate in California will ever be executed, but I assure you that he richly deserves it.

Do I think I have changed minds? For the most part, no. Does anyone ever succeed in changing another adult’s views on a political topic? Stranger things have happened, I guess. There’s a YouTube video you may have seen where a guy on a motorcycle gets into a crash and ends up flipping in mid-air and landing on his feet atop the roof of a moving car. If that can happen, I guess someone can be persuaded to change their mind on a political topic. But I’m guessing it’s a pretty rare event.

Q. You parlayed your skill and experience with writing into commentary gigs at various websites. (You’ve been published in the LA Times, your blog posts have been covered in the New York Times and Washington Post, and you used to write at Breitbart before it went alt-right.) These days, apart from the blog, you’re best known as a regular at RedState.

Whether at RedState or Patterico’s Pontifications, you haven’t been one to express much support for our current President. You opposed his candidacy, and even deregistered from the Republican Party after he became the GOP’s torchbearer in the general election. By lining up behind Trump, have Republicans betrayed their limited-government ideals? Now that he’s been in office for a few weeks, has he proven as bad as you feared? Is he even worse?

What about the current immigration debacle? Is it the constitutional travesty left-leaning lawprofs claim it is? Do you take as dim a view of plenary power as they do? Was it, perhaps, unwise of Trump to deny re-entry to lawful permanent residents? In the age of Trump, can we expect the same, ahem, scrupulous level of commitment to the Constitution we were used to from Obama?

A. I do not think that support for Trump, by itself, reflects a betrayal of limited-government principles. Plenty of my readers, like me, supported another candidate in the primary, and don’t care for Trump. Many of those people voted for Trump just because he is not Hillary Clinton. That was not my decision, but I understand it and can’t criticize that point of view.

However, on May 3, 2016, the day Ted Cruz bowed out of the race, I instantly saw that the Republican party was going to start conforming itself to Trump’s vision more than I knew I would be comfortable with. Republicans were going to support big government initiatives, worry less about state sovereignty and the Constitution, and defend any number of outrageous Trumpy statements and positions. I wanted no part of it, and I wanted to disassociate myself from a Trump-led Republican Party in a very public and clear way.

My abandonment of the GOP, and my personal distaste for Trump, have been very disturbing to the part of my readership that is more partisan and less concerned with limited government principles. It’s difficult to watch some long-time readers view me as a “leftist” and treat me contemptuously, as if I were the enemy, simply because I can’t stand the demagogue that has seized control of the Republican party. But I don’t change my views to suit my readers. I suspect some other bloggers have — especially those who are dependent on their blogs for income. In that sense, it’s nice to have a day job. It makes it easier to say what I really think.

I despise Donald Trump as a person. I liked that state senator’s description of Trump as a “loofa-faced shitgibbon.” He’s obviously a vindictive, nasty, narcissistic, dishonest clown who has probably never read a book in his life. He is the best argument for the irrationality of the American voter we have ever seen. That said, I wasn’t looking forward to Hillary Clinton being in office, and I think Trump has done and will do some good things. His selection of Neil Gorsuch to replace Justice Scalia was brilliant.

You asked about immigration. I’m very sympathetic to Trump’s concerns over an influx of refugees from war-torn Muslim nations. I don’t think that accepting those refugees in large numbers with insufficient screening has worked out very well for Germany. The Nordic countries have seen their very successful cultures threatened by an inordinate number of immigrants with a murderous ideology and a desire to inflict Sharia law on everyone. All that being said, I am a fierce critic of runaway executive power, and I think Trump should be working with Congress on this issue. It’s also beyond debate that Trump’s rollout of this particular executive order was hasty, slipshod, and illegal as applied to green card holders and other visa holders.

Q. As Patterico’s Pontifications grew and you attracted a bigger following, you also became a target for nutjobs. In 2011, you were infamously doxxed and then SWATted by a lunatic who may have been mad at you for your role in breaking aspects of the story of the first Anthony Weiner sexting scandal. Back then, SWATting – calling in a fake emergency to sic a SWAT team on someone, an extremely dangerous crime that can easily get the victim killed – was a fairly new phenomenon. Did law enforcement take what happened seriously, or did they treat it as a harmless prank? Were they sufficiently responsive to your concerns?

Nor were you the only right-wing blogger covering Weiner to be targeted. Was any headway ever made in those cases? And did the experience do anything to dissuade you from blogging? After all, it’s not exactly a financially rewarding experience, giving rise to the question of whether it’s worth putting your well-being at risk. Did you consider packing it in? Or were you determined not to let the nutjobs silence you?

A. I’m going to remain mostly mute on this, because I am still (still!) facing a lawsuit from convicted bomber and perjurer Brett Kimberlin about it. Suffice it to say that it’s not clear the SWATting was connected to the Weiner story; it could be merely that the SWATter wanted it to be perceived that way.

I never considered packing it in. If anything, it reinvigorated my desire to write. It seemed to me important to show that I could not be silenced.

No headway was ever made in the cases. I was dissatisfied with the efforts of law enforcement. Without going into detail, the FBI agents handling my case did not give me the impression that my case was a priority. They didn’t treat it like a harmless prank, but they also didn’t seem to be going out of their way to solve it either.

There has been one bright spot in all this. Several talented lawyers have stepped forward and handled the lawsuits pro bono. Ron Coleman of Archer & Greiner and the Likelihood of Confusion blog and Bruce Godfrey of Jezic & Moyse LLC have represented me in the lawsuit brought by Brett Kimberlin. That same Ron Coleman represented me in the Nadia Naffe lawsuit along with [Fault Lines contributor] Kenneth P. White of Brown White & Osborn LLP and the essential Popehat blog. I am forever indebted to these gentlemen for their help, and encourage your readers to consider them for paying jobs!

Q. Then there was that ludicrous SLAPP suit you were hit with when a woman by the name of Nadia Naffe decided that, by God, she wasn’t going to stand for you criticizing her on the internet. You, Fault Lines contributor Ken White and Ron Coleman brought her vexatious suit to a very satisfactory conclusion in 2013, when a federal judge dismissed everything she tried to use to silence you.

What is it about legal blogs that makes them such targets for crazies? What was it like to be at the center of one of Popehat’s patented pro- free speech, anti- censorious bullying whirlwinds? (Did it come with all the snark and inventive profanity you’d expect?) And in the years since, has there been an opportunity for you to use your platform to help other blawggers under attack?

A. Yes, we reached a settlement in which I paid her nothing and retracted nothing. As I just said, and can never say enough, I will forever be grateful to Ken White and Ron Coleman for their work on that case. Ultimately, the entire case revolved around the fact that, in looking into her background as a critic of James O’Keefe, I came across a deposition of hers on PACER that I thought reflected poorly on her credibility.

I uploaded it to my own site, and then someone informed me that the lawyers who had uploaded the document to PACER had not redacted her Social Security number as they were supposed to have done. I immediately pulled down the transcript, which had been up on my site for barely over an hour. Later that day, I uploaded a redacted version. But that became the basis of an entire lawsuit claiming I had doxxed her as retaliation for her criticism of me, etc. etc. It was ridiculous, but it took a lot of time and work to make it go away.

I have tried to publicize other cases where there are frivolous lawsuits — usually ones I first read about on Popehat. It’s not easy to line up such help, though. When Ron Coleman was looking for local counsel in Maryland to help with the Brett Kimberlin litigation, exactly one person stepped forward: the aforementioned Bruce Godfrey. Without him and without Ron, I don’t know where I’d be.

Q. You’ve been a fixture of the blawgosphere for fifteen years, and the mainstream media for almost as long. In that time, a lot has changed. Former mainstays of legal blogging dried up and blew away, the user base isn’t what it was and the collegial atmosphere of days gone by is no more. Meanwhile, conventional media is in a bit of an existential crisis, and the national environment for debate is as coarse as it’s ever been, with relentless, damn-the-facts partisanship the new norm.

What keeps you coming back, day after day, putting out intelligent, knowledgeable political and legal coverage at a time when the hottest New Media projects pump out hot takes by uninformed 23-year-olds? Has the composition of your readership changed, a la the Volokh Conspiracy when it moved to the Washington Post? Is writing still worth it? Do you see yourself doing this for another fifteen years? Now that Patterico is an established, legitimate voice on the political Right, what do you plan to do with your soapbox? What’s in your future?

A. Thanks for the kind words. It does seem as though the atmosphere has changed, and of course I have changed, as all humans do. I think it’s common for people to look back on the past as a glorious time of non-partisanship, and to some extent our current view of politics suffers from the misconception that the old days were better than they really were.

And yet…something does seem to have changed, doesn’t it? I find myself increasingly irritated by silly partisan arguments coming from “my” side of the aisle. I don’t know if it’s because my fellow travelers are becoming more partisan, or that I am personally becoming more irritated with stupid partisan arguments. I suspect it’s a little of both.

Has the composition of my readership changed? Good question. I think the readership at my personal blog has declined a bit. It’s not uncommon for people to stop by solely to declare that I am no longer readable because they don’t like what I say about Donald Trump. On the other hand, my blend of conservative principles and dislike of Trump probably landed me my gig at RedState, where I am reaching a whole new audience with very little extra work. (I cross-post most of my posts at both blogs.) When you add the RedState readers to the mix, I’m probably reaching more people than ever.

What’s in my future? Well, I have begun a couple of new projects in recent months. One is the reanimation of an old blog with a new purpose: civil conversation and debate. At The Jury Talks Back, I cross-post all the posts from my main blog — but there are strict rules for the comment section: no personal attacks, no strawmen, no snide remarks . . . in short, no personal nastiness. The rule is: you speak to other people the same way you would speak if I had invited you to my home and you were sitting in my living room. It’s not as lively as my general comment section, but it has definite advantages and has brought a lot of lurkers out of hiding.

My other project is the Constitutional Vanguard, a group of people who believe in liberty, the free market, and the Constitution. We have a mailing list, a discussion forum, and a secret Facebook page. There are over 900 people in the group and it’s growing all the time. People can sign up for it here.

As the old proverb goes: Man plans, and God laughs. I take it day by day. As long as I still enjoy writing, I’ll continue to do it.

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  • Amy Alkon
    15 February 2017 at 9:21 am - Reply

    I really appreciate Patrick’s balanced thinking on Trump. Also, his remark about being wrong about the Iraq war reflects the person I’ve seen him to be over the years — the integrity he shows.

    Great interview.