The Perplexing “Nerd Defense”

Mr. Peepers, axe-muderer

Last month, a Bronx, New York jury acquitted Thomas Cordero of stabbing a man to death despite overwhelming evidence. Cordero’s defense attorney employed a clever tactic that had helped brutal killer go free in another Bronx murder trial two decades ago: Larry Davis, who was acquitted in 1988 of executing four men, then shooting six cops as they tried to arrest him. His lawyers, William Kunstler and Lynn Stewart, both renowned defense attorneys and both with an expansive view of what constituted ethical conduct, had dressed Davis, a thug if there ever was one, to look like Mr. Peepers, complete with eyeglasses.

“If glasses made a guy like Larry Davis look gentle, they can work for anybody,” a veteran defense lawyer told the New York Daily News. “I always tell clients to get a pair. The nerdier the better.” Welcome to the increasingly popular “nerd defense,” which consists of putting a defendant charges with a violent crime in a pair of glasses to make him look less threatening.

It’s not a guarantee, but  the Daily News report says that criminal defense lawyers “swear by the gimmick, believing the right spectacles can make a sinister-looking murder suspect seem like a perfect gentleman.” “Glasses soften their appearance so that they don’t look capable of committing a violent crime,” veteran lawyer Harvey Slovis told the paper.”I’ve tried cases where there’s been a tremendous amount of evidence, but my client wore glasses, dressed well and got acquitted.” Cordero, who was represented by Slovis, wore bifocals throughout his trial, but threw them away the moment he was free.

There is some research to support the “nerd defense.” A 2008 study conducted at the State University of New York found that defendants wearing glasses were acquitted by juries more often than those who didn’t. “We found that eyeglasses tended to make the defendant look more intelligent and less physically threatening to jurors,” said Michael Brown, the  psychology professor who conducted the study. “It’s the whole idea of presenting yourself as intelligent and a little emasculated.”

It seems that Kunstler and Stewart were on to something, all right. But is it ethical? Over at the Legal Ethics Forum, legal ethicist Stephen Gillers pondered whether putting glasses on a defendant with 20-20 eyesight isn’t deceit, which is conduct prohibited by New York’s legal ethics rule 8.4. Cleaning up a defendant for a court appearance is standard, and completely reasonable and ethical: jurors, like everyone else, make assumptions on appearances, and letting your accused axe-murderer client appear in court looking like an axe-murderer borders on malpractice. But a haircut, a shave, a suit and shined shoes aren’t deceptive. Glasses convey information about physical capabilities the same way coming into court on crutches or in a wheelchair does. I think having a client feign a physical disability in court is clearly unethical, and thus the “nerd defense” may cross the ethical lines as well.

But I also think it is too close a call, and has too many potential variations, to make it a violation that any disciplinary committee would want to tackle. Is it deceit to have your client get glasses for a real but minor visual impairment that was never corrected? To have him wear glasses when he usually wears contacts? Some people wear glasses with plain glass in them as a fashion assessory: is putting a defendant in prop glasses more unethical, because it indicates a non-existent disability, or ethical, because the prop glasses are like a haircut?

This means that the existence “nerd defense” creates a legal ethics dilemma for the criminal defense lawyer. It works, it will never lead to professional discipline, it may be unethical, and the client has a right to the most effective representation the attorney can muster.

Should she try it?

6 thoughts on “The Perplexing “Nerd Defense”

  1. One assumes that prosecurtors can and would put into evidence photography of real-time mug shots, etc., of the defendant at trial. (I know too many evil people who where glasses, so that wouldn’t help me. !!)

    Overall, I think photos of the defendant AS HE WAS TAKEN INTO CUSTODY, if introduced, can certainly the counteract Mr. Peepers suddenly showing up for trial. One hopes jurors aren’t that lacking in discernment.

  2. I remember a case a few months back where a man covered in tattoos head to toe was given a cream on the State’s dime. They use the same reasoning you do. They did not want the jury to judge the man based solely on his appearance.

    There are several problems with this. Tattoos tell much about a person. Some tattoos signify how many people you’ve killed, whether you robbed a bank or a convenience store, if you raped someone, etc. If the person saw fit to look the way they do to people in every day life, they can see fit to look that way in front of a jury.

    This is misrepresentation. It’s unethical in my opinion, but it seems to not be against the law. I think it should be. Being cleaned up with a haircut, shave, and a suit should be enough.

    Your decisions to look a certain way should not be covered up just because you’re trying to con a jury.

  3. I know nothing about law but this just seems completely unethical to me. If only people could be more aware of why they make perceptions about people’s outer appearances. Really interesting question.

  4. I’m not a lawyer (father and grandather were), but when I was an Infantry officer decades ago, I was sometimes appointed special court-martial Defense Counsel for soldiers who’d run afoul of regulations – what would be misdemeanors on the outside.

    I got one guilty kid acquitted because the prosecution (“Trial Counsel”) put the wrong date on the charge. The commander, a colonel, was highly ticked at me, asked if I thought justice had been served. I told him, yes, for three reasons:

    (1) It was not my duty to tell Trial Counsel about his mistake before trial;

    (2) The gov’t failed to prove its case as charged;

    (3) Uniform Code of Military Justice says Defense Counsel must defend the Accused “by every legal and ethical means known to law”. Had I not done so I could be charged with dereliction of duty to the Accused.

    The kid got off; the colonel stayed ticked. (And I was soon transferred to another unit.)

  5. Late to the game, I know, but I think it’s fully ethical to put them in glasses, as long as the prescription is right. If they have 20/20 vision, then prop glasses are the correct prescription.

    The jury should be convicting the defendant based on the evidence and not the appearance.

    Other tactics might be for the defense to tell his client to stop working out and lose muscle. Get skinny, look gaunt. Get flabby. The reality is that the defendant will always attempt to look like they could be innocent, in any way possible. Juries need to focus their efforts on the evidence and the positive identification of the defendant.

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