Undercutting the “Nerd Defense”

“A killer? Him? Come on, look at him. He couldn’t hurt a fly!”

More than a year ago, Ethics Alarms discussed the ethics of a current criminal defense tactic employed by lawyers with clients accused of violent crimes, putting them in nerdy glasses:

“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.”

I’ve quizzed lawyers about the ethics of this tactic in my CLE classes, and they nearly unanimously agree that the tactic crosses no ethical lines that can be drawn with appropriate precision. I’m not so sure. I think it goes beyond merely giving your axe-murderer a shave and a haircut so he doesn’t look like an axe murderer, and edges into the realm of intentional deception. Apparently some courts may agree.

A District of Columbia Superior Court jury convicted Donnell Harris of the 2007  shooting death of Michael Richardson. Harris wore glasses during his 2008 trial, and the prosecutor was ready for the tactic. He presented witnesses who said they didn’t know that Harris wore glasses.  Then the prosecutor requested that the trial judge instruct the jury that if they decided that Harris had altered his appearance to avoid being identified, they could choose to regard it as as pointing to Harris’s guilt. Now the D.C. Court of Appeals has upheld the instructions.

The Appeals court essentially said that it was within the judge’s discretion to allow the inference that the defendant’s changing of his appearance had some probative value, though weak. In the case of wearing glasses for the first time, I’m not sure I agree. My problem with a lawyer having a client with 20-20 vision  wear glasses is that it is intended to mislead the jury about the defendant’s character, even if the tactic is based on a stereotype. Such a tactic has nothing to do with the defendant’s actual guilt. If glasses make a defendant seem less guilty, it’s an effective strategy whether the defendant is guilty or not. But the D.C. instructions, if they are employed by other judges in other jurisdictions, may have the effect of eliminating what may be an unfair tactic by making a defendant accept enhanced suspicion of guilt from the jury as the price of looking more innocent.

Interesting.

___________________________

Facts: Legal Times

Graphic: Modded Mustangs

 

17 thoughts on “Undercutting the “Nerd Defense”

  1. Pingback: Undercutting the “Nerd Defense” | Ethics Alarms | Tax Attorney

  2. Pingback: Undercutting the “Nerd Defense” | Ethics Alarms | Defensive Lawyers

  3. I’d vote yes it crosses a line. Any attempt to portray someone in a light in which they do not portray themselves is a lie.

    Off topic, (and I know you don’t like when a poster brings up an ethical problem that isn’t the one blogged about):

    How about the jurors allowing their stereotypes and biases to cloud their judgment of the evidence and testimony presented?

    I’m no lawyer, so I just plain don’t know. But if a prosecutor suspected a defendant / defense counsel of using such a tactic, is the prosecutor allowed to ask a question about the defendant’s vision? To try to show the jury that the defense is trying to hoorah them?

      • I’d say that probably started out more to fill the intent of composing oneself in a respectful manner while taking part in the sacred actions of a court of law.

        I’m certain of it…societal pressure said “look and behave respectfully in court”

        Safe bet is that custom, like all customs, can assume alternate intentions and objectives, like in this case… Instead of being respectful to the court, the intent is now to try to pose as a respectable person before the court.

  4. ‘But surely you don’t object to having your client dress well and shave before going to court?’

    Just as an average person watching the news (not in any way involved in the legal profession), I am sometimes astounded at the difference between the original mug shot and the defendant’s ‘look’ at their first court appearance, and have often thought that the should be required to show up ‘au naturel ‘ for trial, as they usually appear.

    • There is so much class and economic status bias in that, though. Those with wealth, a solid upbringing and education understand how to make a good impression. I’m sure you’ve seen Nick Nolte’s DUI mugshot–should be have to appear in court like that? What’s normal dress and appearance? What you would like to dress like if you could? How your were groomed and dressed at the time of the offense, whether that was your usual look of not? I sometimes go a few days without shaving if I’m on a writing and research binge, and wear an old warm-up suit. When I’m at the theater working, it can be anything from a Hawaiian shirt to slacks and a blazer, a four day beard or clean-shaven. When I’m doing a law firm program, I’m in a suit. Do I have to come into court like I was on the day I was arrested? You look better if you smile. Is it unethical to tell a defendant with a permanent death stare to smile and look pleasant? If the defendant figures that out himself, should the lawyer have to tell him, “no, you need to look scary, like always? People are scared of gang members–are you saying that an innocent gang member still has to look like a gang member in court?

  5. What I mean to say is that it seems dishonest to take someone who dresses in a backwards baseball cap with his jeans hanging around his knees, who you know is a gang member (for example) and put him in an outfit that makes him look like a young businessman when you know he is nothing of the sort. The way Nick Nolte looked in his mug shot is not the way he usually looks, I should perhaps been more specific in what I wanted to say….but many of the photos one sees in the news, the snarling looks, the tats etc ARE what the defendant normally looks like, even if they show up at trial looking like altar boys.

  6. Well, let’s look at the basic playing field: the US Court system is not designed to “find out the truth”. Depending on the case, the court is looking for a “preponderance of evidence” or “beyond a reasonable doubt”. So, a court and jury is not there to figure out the truth in order to convict the guilty/ release the innocent. It’s merely going to see what the lawyers come up with to meet those criteria and make a decision based on that criteria. Unfortunately, the lawyers have learned to use every trick available to them to meet the necessary criteria and to influence the judge/jury — they are not looking to determine the truth of the matter. They are looking to win. There’s many studies that look at how juries make decisions, and what influcences them (and lawyers are well aware of them).

    Lawyers will often use any and every trick they can think of, that they can get away with, to win their case. That’s their job. In circuit court, where there are all sorts of oddball judges, and where judges don’t overrule “influenced” juries, there are lots of bizarre decisions. Hopefully, they’re overturned on appeal.

    Well, there’s no law against dressing up your client in nearly any way you choose. Ethically — well, if you’re the lawyer, you’re ethically bound to try to “win” for your client, and that might include the geek glasses to achieve the goal. And to me, this absolutely stinks, as it is a lie.

    Now, ethically, in terms of the greater good, general humanity? No. Dressing up a client to appear like something he/she is not, is not ethical.

  7. Shouldn’t jurors already know the people sitting at the defense table may or may not look like people who would commit a crime? Unless they live under a rock they ought to know people aren’t always what they appear.

    • Easier said than done. Such biases are subliminal and unconscious. Society favors men, thin people, tall people, white people, beautiful people. Much of that bias is unconscious. They are hot-wired into human nature.

  8. This plays along the lines of what the Army calls “role camoflage”. The concept is that, by adopting even a smattering of the mannerisms and overt appearance of those around you- and with confidence- you can successfully divert attention from your true appearance and intentions. A little can go a long way. It can often go farther than an elaborate disguise. It’s all about playing up to the human proclivity to interpret what is seen in terms of normality. In movie terms, “These aren’t the droids we’re looking for.”!

  9. It’s funny this is can be analogized to the OJ Simpson case. I don’t know if many know this, although it hasn’t been kept a secrete by no means, but Cochran had O.J’s house pretty much completely altered before the jury came in to do a walk-through. OJ had a bunch of pictures of and with white people. Those were all taken out and replaced with images of African Americans. Bibles were placed on tables, philosphical works in his bedroom etc. Perhaps the Judge shouldn’t have allowed the jury to visit his home but regardless, what a move by Cochran. Yes, I think unethical in a non-legal sense, but very clever…Are his actions worthy of sanctions? He did attempt to portray OJ as someone he is not. He did attempt to disguise and mislead the jurors…. But then again, the courts should not control people’s personal lives or defense tactics. I think doing so encroaches on Constitutional rights and comes into dangerous territory. You know, if the prosecution was as smart as Cochran, once they heard the Judge was allowing the walk-through of OJ’s house they should have attempted to get witness testimony to give their account of how they remembered his home to be. Then again this falls in to rules of evidence but I’m sure if it’s within a Judge’s discretion it should be admissible.

    • I did know about Cochran’s actions, and it is pretty clear to me that what he did was unethical. If the prosecution did the same thing in reverse, is there any doubt that it would justify a new trial? That was classic Perry Mason stuff, and in California, Cochran knew he could get away with it. I disagree that courts should not control dense tactics—of course they should. And do. Altering the physical evidence is fraud on the jury and the court—this was an example of a judge and a prosecution asleep at the switch, that’s all. The analogy between the O.J.’s house, which is evidence, and his appearance, which is clearly within his personal sphere of guaranteed control, is unwarranted. But thanks for reminding me about Johnny’s house trick. I would discipline a lawyer–hard—for doing that. It’s not a close call.

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