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.
Facts: Legal Times
Graphic: Modded Mustangs