Criminal Defense Ethics: The Aneurysm-Inducing Argument

Darrow would understand.

Apoplectic stand-up comic Louis Black has a classic routine in which he describes how a snippet of a conversation he over-heard at an IHOP nearly killed him. The statement, “If it hadn’t been for that horse, I never would have spent that year in college,” made no sense to him at all and kept going around and around in his brain, threatening to cause a fatal aneurysm.

I know exactly how he feels.

A week ago, I read a news account of the election fraud trial of one Julius Henson, a former campaign consultant to ex-Maryland Governor Robert Ehrlich. This was the second trial arising out Ehrlich’s dirty and unsuccessful campaign in 2010 to win re-election over Democrat Martin O’Malley. In the first one, Ehrlich’s campaign manager, Peter Schurick, was convicted of election fraud for approving an election day robocall that went out to African-Americans in Maryland who were registered Democrats, suggesting that they “relax” and stay home, because O’Malley had already won. In the article, it said that Henson’s attorney had offered the defense that the call, which was created by Henson with his wife’s voice on the recording, was not designed to suppress the black vote for O’Malley. It was, argued Edward Smith, intended to prompt them to go to the polls and vote for Erhlich through the use of “reverse psychology.”

WHAT???

This makes the horse statement seem brilliantly clear in comparison. That wouldn’t be reverse psychology; that’s Bizarro World psychology. Why would an automated phone call from a mysterious source (the call did not include attribution, as required by law) convince a Democrat to vote for the Republican governor by falsely telling him that the Democratic candidate had already won? How does this theory counter the prosecution’s accusation that the call was intended to misinform the voter? What sense does this defense make at all? I DON”T UNDERSTAND!!! WHAT’S GOING ON HERE????

If it doesn’t kill me, Henson’s lawyer’s theory, if you can call it that, will have had one beneficial effect, however. It has reminded me why I fled criminal law, and what a difficult, gut-wrenching, ethically-corrupting job criminal defense attorneys have, particularly when they must defend a client, like Henson, who is guilty as sin but who either refuses to believe it or who is convinced that a jury can be convinced, or confused enough, to acquit him.

Remember, Henson has an absolute right to a trial. Knowing one’s client is guilty is no justification for refusing to defend him: the ethics of the profession hold that it is the duty of ever lawyer to make sure even the most guilty defendant gets a fair trial and a zealous defense. A zealous defense means that the lawyer must find ways to show that there is legitimate reasonable doubt in the case against his client, which, in cases where the act constituting the crime clearly occurred and there is no way to deny that the defendant performed that act, means coming up with some innocent explanation that a jury, or at least one juror, might accept.

There are two problems, however…that is, two problems other than the facts that the defendant is guilty as hell,  has no plausible excuse for his conduct, yet still wants to plead “not guilty”. The “explanation” can’t be a lie. Even the lawyer of a defendant who has no possible defense other than a lie can’t actively support and endorse a falsehood that he knows is untrue, no matter how much his client wants him to, though the lie is his client’s only chance. Nor can a lawyer help a client devise a persuasive lie, or present a lie to the court as truth (Rules 1.2, 3.3, 3.4, and 8.4 of the Rules of Professional Conduct). Furthermore, a lawyer is forbidden (By Rule 3.1 in most jurisdictions, including Maryland) from offering a frivolous defense, which is defined as an argument in which the lawyer has no good faith belief that it is supported by the facts or the law…or, as it could be defined, an argument so ridiculous that it risks giving Louis Black an aneurysm.

Now, let’s assume the crack-brained “reverse psychology” defense is how Henson really justifies his robocalls. It makes no damn sense, but if that really was Henson’s reason for making it, then he didn’t commit a crime…he is just so stupid that it’s amazing he can speak, much less create misleading robocalls. As long as Smith, Henson’s lawyer, believes that Henson’s excuse is sincere, or even if he has serious doubts but doesn’t know Henson is lying, then it is ethical under the rules for Smith to risk giving everyone in the courtroom aneurysms by arguing it. Smith cannot ethically suggest a concocted theory to the defendant; that’s suborning perjury. Nor can he—ethically—try to cue and prompt his client into coming up with a lie he thinks he might work, by having this conversation:

“Okay, now think really hard. Is there some reason you might have phrased that robocall that way in order to encourage those voters to go to the polls?

“Encourage them to go to the polls? You mean, like some kind of reverse psychology?”

“I’m asking you.”

“Uh, all right…sure, sure, I was trying, like,  reverse psychology. Do you think a jury will buy it?”

“Do you have any other explanation that involves not trying to trick them out of voting?”

“Hmmmm. No.”

“If that’s what you thought, then you aren’t guilty. And you wouldn’t lie about something like that, would you…I mean, even if it was your only defense?”

“Of course not! I’m innocent!”

That’s the answer I need to hear!”

Do defense attorneys have such conversations? Sure they do. They have for centuries: we call it the “Anatomy of a Murder” lecture. Are such conversations unethical? Yes. Would even slam-dunk proof that this type of conversation took place get a lawyer punished by a bar disciplinary committee? I doubt it very much. Similarly, if a lawyer was asked, “Come on: that excuse makes no sense! You had to know your client was lying!”, and answered, “Well, I couldn’t be sure. Maybe he’s an idiot. Being an idiot isn’t a crime,” the bar wouldn’t have sufficient evidence to impose discipline on the basis of facilitating dishonest conduct. If the next question to the lawyer was, “Wait a minute. That “reverse psychology” defense makes no sense whatsoever! You can’t have had a good faith belief that it’s legitimate or consistent with the facts,” the lawyer could answer, “Well, maybe you see it that way; I didn’t.” Then…

“What? You must be an idiot then!”

“Maybe I am. But I still had a good faith belief that my client’s explanation was sincere.”

This is one reason why so few lawyers are disciplined under Rule 3.1.

Another is that the defender of a guilty criminal client is walking a micro-thin tight-rope, and other lawyers understand how hard the assignment is. The profession tends to err on the side of permitting criminal defense lawyers a little too much leeway in his or her “zeal,” including arguing self-evident nonsense to the jury, because it doesn’t want to make future criminal defense lawyers timid about discharging their duty of upholding the most cherished rights in the Constitution.

While I might read Smith’s arguments in the Henson trial and find them laughable, from another perspective, they are heroic. Henson, either because he is shameless, audacious or an idiot, has embraced what the prosecution termed a “hot means cold and day means night” defense….which, by the way, always works on Bizarro World. On the stand, Henson told the jury that what his robocall attempted was not the fraudulent suppression of votes, despite the fact that it represented itself as a message from Democrats, and said that “we” had won back the governor’s office. He said he was just engaged in “minority outreach.” He evoked the Nuremberg defense, and said he was just following orders. He actually told the jury, under oath, that the robocall just happened to be made only to registered black Democrats and not Republicans because he was in a rush, and there wasn’t time to add the Republican blacks (there must be all of six) to the call list. Once he ruled out an insanity plea, this gave Smith nothing to work with at all. If he was going to present a vigorous defense for his defiant, ridiculously guilty client, he had to be willing to look ridiculous too.

Edward Smith Jr. plunged right in, doing a combination of Matlock, Denny Crane, and Louis Tully in “Ghostbusters II”. In his flamboyant closing argument, he used props, charts and cartoons, called the prosecutors’ election fraud case against his client a “bunch of bull-honky,” and quoted lyrics from “Backstabbers” by the O’Jays.  He thundered, he lectured, he joked. He showed jurors a photo of a “twisted man” that he said was a good likeness of the prosecution, and suggested that the state prosecutor “just walk out the door right now.”

Bravo!

His performance illustrates brilliantly why Americans have such a conflicted view of lawyers. Smith, in the best tradition of Clarence Darrow, Johnny Cochran, F. Lee Bailey and Perry Mason, stretched legal ethics to the breaking point and threw everything but the kitchen sink into a desperate argument for his client’s innocence, hoping against hope that something, somehow, would work. He also compromised his own integrity in the process when he alluded to Henson’s most absurd excuses. Yet just imagine what Smith might accomplish with a strong case, on behalf of a truthful defendant who really is innocent.

I’m keeping his name in my address book, just in case.

_______________________

Spark: Louis Black and the Horse

Facts: Baltimore Sun

Sources:

Graphic: UMKC

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.

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