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?