You'll doubtless recall that the same tactic was used in the infamous "Parent Trap" murder trial....
Way back in May of 2010, I wrote about a lawyer who suspected that his criminal defendant had pulled a switcheroo, substituting his identical twin brother for himself in his trial. (He had, too.) That was bad enough, but when a lawyer pulls the same stunt, she has crossed some significant ethical lines that will land her in serious trouble with the judge and probably the bar. Thus when Dorothy Savory, a Kansas City defense attorney, placed her client’s identical twin at the counsel’s table just in time for him to be identified by a witness as the man who had snatched her purse, the judge was furious.
This sleazy tactic is older than Abe Lincoln, and has the theoretical purpose of establishing inherent reasonable doubt by showing that an eye witness has identified the wrong person. It has been long established, however, that doing this is a fraud on the court–deceiving not merely the witness, but the jury and, most important of all, the judge, unless a defense attorney alerts the judge to her intention and gets advance permission to try to fool the witness by seating a fake defendant where the real defendant would normally sit. There were three things that made what Savory did unethical:
1. She didn’t alert the judge.
2. She used an identical twin as the substitute defendant, which would never be approved by any judge. When the fake defendant who is fingered from the stand looks nothing like the real defendant, this legitimately undermines the credibility of the witness—it is a legitimate and probative tactic. Fooling a witness with a twin, however (or someone disguised to look like the defendant) proves nothing except that the defense lawyer has watched too many old “Perry Mason” re-runs..
3. Savory’s real defendant wasn’t in the courtroom when the faulty identification was made. This made the stunt a true cheat—the witness was told that the accused robber was in the courtroom, and saw only one individual who resembled the man present. Of course she would point to the twin.
As if this weren’t enough, Savory’s comments to the judge after the incident will probably guarantee disciplinary sanctions in addition to what she earns from her twin deception.
First she claimed that she did nothing deceptive, saying:
“My client was not the one I called to come to the table. This honorable court asked for Mr. White, and that’s who’s at the table today, Mr. White.”
This is blatantly dishonest. Savory knew that when the court called for “Mr. White,” it meant Darrell White, the defendant in the case, not Frank White, the former Kansas City Royal second baseman, not Jaleel White, who used to play Steve Urkel, not David White, who was Darren Stevens’ boss on “Bewitched,” and certainly not Darion White, Darrell’s twin brother.
Then Savory had another whopper for the judge, even more dishonest than the first. When the judge asked her directly, “Was it your intention to bring someone else up to this counsel table so she (the witness) could misidentify him?”, Savory responded, “No, your honor.”
No? NO? Then why, pray tell, would she place her defendant’s identical twin at the counsel’s table? Show and tell? To let him feel his brother’s pain? To give him a better seat? To give an in-court homage to “The Parent Trap”?
Ms. Savory’s twin shenanigans have put her in serious ethical difficulties, and she deserves every bit of them.
Ethics Alarms 
While I don’t disagree that this was horrible behavior, your comments also show that the whole process of having witnesses identify defendents from the stand is unethical.
The attorney behaved unethically (and stupidly) to fight an injustice.
No doubt about it—in court ID’s when the defendant is so easily identified by his positioning are unjust.
To clarify most of the comments that have been reported in the papers and in the media: THEY ARE NOT IDENTICAL TWINS!! They are fraternal and though they resemble one another like any brother or sister would, they are not identical. Facial features, hair, skin complexion and height are different. But of course, that wouldn’t be reported.
What are you concerned about? The deception is essentially the same, whether the individuals are twins, fraternal twins, brothers or strangers who look similar. Someone is being presented to the court as the defendant who is not the defendant. Most people don’t know that the Olsen twins are fraternal, and they look more alike than some identical twins. You are right—good reporting would note the fraternal twin status. I don’t think it makes any difference to the ethics involved at all.
Remember, regardless of how stupid this act was, thousands of people are being wrongly convicted because the victim didn’t really see who committed the crime. After months and even years of “coaching” by the prosecution, countless court appearances in which the victim is now “trained” to identify the defendant, during the actual trial, they will positively identify the defendant. Did anyone think about that? Though this was stupid, the big picture is that she may have prevented citizens from paying years of prison costs, liitigation costs, etc. If you know who did a crime, it doesn’t matter who is sitting at the table or not. Thanks, Ms. Savory!
Your logic does not follow the situation as reported. Ms. Savory, if she was motivated as you suggest, lied outright to the judge. Unnecessary, unprofessional, and wrong. If she had concerns about her client being unfairly identified in court, she could have asked the judge to approve letting her have someone else sit by her, or just leave the chair empty and have him sit with the spectators. Usually judges allow this. Two wrongs don’t make a right, and making it impossible for an eye witness to identify a thief by not having him present doesn’t further the interests of justice, truth, or anything else.
Thanks for nothing, Ms. Savory. And I hope you have alternate career plans.
…and making it impossible for an eye witness to identify a thief by not having him present doesn’t further the interests of justice, truth, or anything else.
Bad prosecutor…. assuming the defendent is the thief. Having the witness point to the defendent doesn’t further the interests of justice, truth, or anything else, either….except for making a weak case look better.
Bad judge, maybe. If the prosecutor is convinced that he has the right culprit, and ethically, he has to be convinced, then availing himself of methods of proving his case allowed by the law and the judge are not merely ethical, but mandatory. If the in-court ID’s are unfair, it is up to the defense, not the prosecution, to oppose it. A judge has the discretion to prevent such an ID, but the prosecution is bound to use all legal means to get a conviction.
If the in-court ID’s are unfair, it is up to the defense, not the prosecution, to oppose it.
Yes and no. The prosecution is not supposed to do anything that is unfair. They are, supposedly, in the business of justice.
the prosecution is bound to use all legal means to get a conviction.
That runs directly counter to the ideal of justice and your belief in the goodness of prosecutorial discretion. Of course, you are right in that this is what occurs.
The difficulty is the prosecutor has it both ways. Using every legal trick in the book, and falling behind the veneer of independence. You can’t be both advocate and impartial.
It’s not the prosecutor’;s job to decide what is fair—the ethics rules and the law do that. It is up to the defense to argue a tactic is unfair. Your version of an adversary system doesn’t work. All is predicated on the assumption that the prosecutor has a good faith belief in the defendant’s guilt beyond a reasonable doubt. That given, he is bound to use the tools the law says he may use, including this one. It is not unethical to do so, and nothing in prosecutor ethics requires a prosecutor to apply some vague, non-legal concept of “fairness.” In prosecution, the law and precedent determines fair, and beyond that, it’s up to the judge. Some judges will not permit this, and I salute them. But a prosecutor who has a judge who does allow it will use it.
I think we’re arguing past each other. If Prosecutor’s were taken as advocates (just like defense attorneys), there wouldn’t be a problem. As it is, great deference is given to prosecutors by judges, both at the trial level and the appeals level.
This is wacker than any plot in the Law & Order franchise.
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