Bizarro World Legal Ethics Update….

This just in:

You know that aneurysm-inducing defense in the case of the Republican consultant who created a robocall designed to trick black Democrats into not voting on election day?

It worked.

Julius Henson was convicted only of not including the identification of the candidate in his robocall, as required by law. He was acquitted of election fraud, meaning that the jury apparently bought Henson’s self-evidently ridiculous claim that his robocall was not deceiving black Democrats into not voting for the Democratic candidate by telling them that their party’s man had already won, but was instead giving them that message as a “reverse psychology” tactic to goad them to sprint to the polls and vote…Republican.

Makes sense to me!

Think about this case the next time you are tempted to accuse a lawyer of being unethical for bringing what seems to be a ridiculous lawsuit, or arguing what appears to be a loony defense. You see, if one is practicing law on Bizarro World—the square planet in Superman lore populated by stupid, flawed clones of the Man of Steel and Lois Lane, where all logic is turned upside-down and nothing makes sense—an argument is only  frivolous when the idiot populace won’t be persuaded by  it. Our jury system, unfortunately, is like that, and lawyers are ethically obliged to practice law to persuade the juries they get, not according to the juries we wish they got, which is to say, smart and knowledgeable juries that can recognize a nonsensical theory when they hear one.

Julius Henson’s lawyer, following the lead of his shameless client, made an argument to the jury that only a fool could fall for, and sure enough, the fools fell for it. That makes Edward Smith an effective and ethical advocate, Julius Henson a lucky scoundrel, and the jury an embarrassment.


Source: Baltimore Sun

Graphic: Making It

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14 thoughts on “Bizarro World Legal Ethics Update….

  1. Don’t be silly. It was a vote on party lines. The fix was in, there are enough zealots in an election year (on both sides) that it will always be deadlocked or Not Guilty, when it comes to political malfeasance.

  2. In the wake of the Casey Anthony trial, I pledged never to criticize a jury for an acquittal. I wasn’t there; I didn’t see/hear the evidence. This verdict may, in fact, have had nothing to do with the defense: even if the defense’s case is utterly implausible, it’s still incumbent on the prosecution to prove guilt beyond our old friend “reasonable doubt.” And it’s still the jury’s job to acquit if the prosecution doesn’t do its job, even if they think the defendant is a lying weasel who almost certainly is guilty of this and many other crimes.

    None of this, of course, exempts the defense lawyer from criticism: his argument is anti-intellectual, dishonest and unethical; it is a profound threat to the judicial system not despite the fact that it worked, but precisely because it worked. (Or, at least, there was an acquittal, whatever the reason.)

    • I agree with you about juries, Rick. But I can’t make the point that we shouldn’t judge the attorney’s defense of an indefensible client without examining his audience without examining his audience.

      It worked because of the jury, and the lawyer is ethically obligated to maximize the chance of his defense working with the jury he has. I don’t think you can say this attorney was unethical or dishonest. A frivolous argument is a silly argument that can’t possibly convince anyone. The fact that his client was acquitted creates a rebuttable presumption that his argument wasn’t frivolous…just stupid.

      • I live in hope that the argument didn’t in fact convince anyone: that the acquittal was based on the prosecution’s failure rather than the defense’s success.

        We enter into a different ethical quagmire if zoebrain is correct (and I think that’s quite possible). That is, it is perfectly possible to imagine a case in which a juror–in this case an unethical Republican one (and no, I don’t think that’s a redundant expression)–seizes on whatever flimsy argument the defense provides in order to acquit “one of ours.” This hypothetical juror would know the argument was nonsense, but would pretend to be convinced. In this case, the argument per se wouldn’t have persuaded anyone.

        Obviously, I know next to nothing about legal ethics. But it strikes me that, rules aside, a standard whereby an argument can be perceived as frivolous only if “can’t possibly convince anyone” means that there’s no standard, at all. Such criteria mean nothing unless we’re talking about convincing a “reasonable person,” not just anyone.

        • In practice, I think there is in fact no standard at all.
          Look at one of Cochran’s main arguments in the OJ trial: An allegedly racist cop gathered evidence to make OJ look guilty, before he could have possibly known whether OJ was a even a plausible suspect, or whether he had an air-tight alibi. The real argument was: acquit OJ because you blacks on the jury don’t like the LAPD. Is that an honest, fair, or logical defense? No. But remember, a lawyer is ethically obligated to defend his client under the rules…if Johnny knows that this argument will work, will convince jurors, and save his client’s life, is it more unethical to use it, or NOT to use it?

          • Suspect #1 is always the husband/wife/boyfriend/girlfriend/ex, and most people don’t have an airtight alibi for most nights, even former heisman trophy winners. Hell, the closest I come to an alibi after 9pm is my Netflix streaming records, which I could automate with a simple script.

            Your underlying plausability assumptions are met.

            The argument was “Cops screw over people like you and the defendent, and this is a cop biased against people like you and the defendent. We can’t trust this evidence.”

            And you know what, I’m perfectly fine with that argument. It’s not unethical at all. It’s also commonly true. Just look at NYC’s use of illegal stop and frisk searches. Honestly, the police cannot have their word trusted.

      • The fact that his client was acquitted creates a rebuttable presumption that his argument wasn’t frivolous…just stupid.
        Aren’t you making a case for moral luck and/or consequentialism here?


        • See, class? Dwayne pays attention!

          The definition of frivolous in legal ethics terms is, in essence, making an argument that wastes everyone’s time because it can’t possibly prevail. It is hard to argue that an argument can’t possibly prevail when it did prevail; it’s even hard to argue that it was a such a bad argument that no body could reasonable that it would prevail. If there is a chance that a frivolous argument could be rescued by moral luck, then, ironically, it can’t be frivolous, so it isn’t moral luck!

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