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.