The Outrageous, Offensive, Ethical Murder Defense

"OK, granted, my client killed her. That's wrong. But shouldn't he get some credit for the fact that her loss is a net gain for society?"

“OK, granted, my client killed her. That’s wrong. But shouldn’t he get some credit for the fact that her loss is a net gain for society?”

The evidence at trial showed that Rasheen Everett arrived at Amanda Gonzalez-Andujar ‘s Queens ( New York) apartment on March 27, 2010, and almost 24 hours  later, left carrying two bags filled with the prostitute’s belongings including her camera, laptop and cell phone.. Her lifeless body was later discovered, covered in bleach. The judge pronounced the defendant, who showed no remorse during the proceedings, “a coldhearted and violent menace to society.”  Everett apparently killed Amanda after discovering that she was transgendered. She had solicited him over tbe internet.

Desperately arguing to keep Everett’s post-conviction sentence as light as possible (it turned out to be 29 years in prison), Queens defense attorney John Scarpa made about as repugnant an agrument to Queens Supreme Court Justice Richard Buchter as the imagination could devise. “A sentence of 25 years to life is an incredibly long period of time, judge,” Scarpa protested. “Shouldn’t that be reserved for people who are guilty of killing certain classes of individuals? Who is the victim in this case?” he asked. “Amanda was engaged in a life of prostitution, life of drug use, HIV exposure. She was having sex with other individuals knowing she had the chance of spreading diseases….Is the victim a person in the higher end of the community?” he asked.

This theory would have ensured Jack the Ripper, had he ever been caught, a work release program, perhaps in a butcher shop.

The judge wasn’t buying Scarpa’s  revolting logic, and responded with a note-perfect rebuke that correctly states the aspiration of the U.S. criminal justice system, though it is not attained as frequently as we should hope. “This court believes every human life in sacred,” he said, and added,”It’s not easy living as a transgender, and I commend the family for supporting her.”

Informed of Scarpa’s plea, web commenters on the story were unanimously indignant, and merciless in their assessment of Scarpa:

  • “I would hope that the New York Board of Law Examiners would take this action as a cause for reviewing this lawyer’s continued ability to practice law as a licensed attorney…”
  • “That attorney has no place in our system of law.”
  • “And his thinking has no place in our society.”
  • “So if the lawyer gets killed, we can give his murderer a lighter sentence because the victim was “just” a scum sucking lawyer? Get that idiot out of our legal system.”
  • “As bad as the Justice system is in this country, I am glad to see that there is a judge that knows the value of human life. As for the scum bag, shiester, lawyer, he should be disbarred for the remainder of his miserable life.”
  • “That attorney is an elitist self-righteous pig…Karma will find him Disbarment? ;)”
  • “This attorney is about as low as low can go. Some people are not as fortunate as others but in no way does that make them of no value. God made everything on this earth and some of the people here , I believe, can be a lesson to all others.”
  • “Hang him and that dumb ass lawyer he’s a sub human ass hole.”
  • “Freakin’ dumbass!”
  • “What a pig.”
  • “This lawyer should be hung up by his testicles. This is what lawyers have become. We don’t need all these lawyers. That’s including those in Congress. What we need in Congress is a bunch of old farmers who have lived the life of a farmer not a bunch of tongue twisting lawyers.”

…and so on. I haven’t read a single comment on the trail that isn’t critical of the defense attorney.

Apparently there are some aspects of the rights to a fair trial and  a vigorous legal defense that the public is incapable of grasping. One of them is the requirement of “guilt beyond a reasonable doubt” (See Zimmerman, George; Simpson, O.J.; Anthony, Casey). Another is the ethical duty of a lawyer to defend his or her criminal client zealously, which in some cases means trying every factual argument available, even those that are obnoxious and offensive. Zealous representation means absolute partisanship, and often it means making arguments that the lawyer knows are reprehensible. As Scarpa is well aware, outrageously lenient sentences are frequently handed out in the justice system, usually by judges influenced by their own biases. Recall, for example, the recent ruling by a Philadelphia judge that a prostitute couldn’t be raped. It is Scarpa’s job to try to induce one of those sentences for his unsympathetic client.

He didn’t have much to work with, so he attacked the victim. He suggested that murder is a lesser crime when the victim is of dubious value to society.The ethics rules permit arguments that fly in the face of accepted jurisprudence, if the lawyer believes that there is a chance to change the law or forge new precedent. This is what the attorney was doing, for example, in the recent New Jersey lawsuit in which a couple mangled in a car accident caused by the driver reading a text message tried to extract damages from the message’s sender, when the plaintiffs attorney argued that her text message caused the crash. I think it’s an absurd theory, but if a jury buys it and the lawyer’s clients prevail, then it is also a winning one. (It wasn’t.)

The position espoused by Scarpa is contrary to American ideals, and I doubt that he believes it. Many Americans, however, perhaps even most, do believe this to some degree. Prosecutors often make the same argument in reverse, when they argue for a harsher punishment for the convicted criminal by extolling the victim’s virtues and value to society.

“He took a loving father way from five children who loved him!”

“She was a teacher, a volunteer at the local soup kitchen, and a friend to the homeless!”

“He was a pillar of the community, who can never be replaced!”

“She was a young girl, which her whole life ahead of her!”

“He had just received his medical degree, and was going to save lives!”

These essentially are the same argument as Scarpa’s derided theory, and exactly as offensive to the principle that all lives are equally valuable to the people living them, which is all the justice system should take into consideration. If, however, such an argument can serve the prosecution’s client’s goals–the client being the state— by increasing a sentence, or minimize a defense attorney’s client’s sentence by appealing to a judge’s biases, then that is the vigorous, effective, and ethical practice of law.

I’m not certain that making this argument was a wise strategy in the defense of Rasheen Everett. It might have antagonized the judge and resulted in a longer sentence. I wasn’t there, however, and it wasn’t my case: I’ll defer to Scarpa’s judgment. He obviously felt that the only defense available for his client was one that would subject him to near universal condemnation, and still had the courage to do his duty, and offer it.

Good for him, and good for Justice Buchter for rejecting it.


Facts: Opposing Views, New York Post

Graphic: Never Forget Them

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 or property was used in any way without proper attribution, please contact me, Jack Marshall, at

26 thoughts on “The Outrageous, Offensive, Ethical Murder Defense

  1. I have often said that it is those who are clearly guilty that need the most rigorous defense…

    But in all cases, the States case must be out to the absolute test, and good on this attorney die doing his best to do that.

  2. The judge should have responded:

    “Is that your defense? That your client engaged in taking justice into his own hands by removing a social parasite from the community? Do we need to add charges related to applicable vigilante laws to his rap sheet?”

  3. Yet another reason why I didn’t become a criminal defense attorney. This guy was just doing his job – one I couldn’t stomach – but he was hoping for a more sympathetic audience. It was his only shot.

  4. “Desperately arguing to keep Everett’s post-conviction sentence as light as possible…”

    For you guys who are attorneys, isn’t this what an attorney is supposed to do? The best he can for his client, even if his client is a scumbag and should be removed from the gene pool?

    Just an entertaining little side note..I originally misspelled “scumbag” with an “n” rather than an “m”. Got the little red wavy line, but when I made the correction, it knew exactly what word I wanted. The wonders of modern technology.

  5. “Every factual argument available” …

    Do you classify the defense’s argument as a factual one, or as an appeal to prejudice?

    Are appeals to prejudice allowed within legal ethics? If not, doesn’t that put the defense attorney on the spot? If so, shouldn’t we be condemning legal ethics?

    Would it have been ethical for an attorney in the old South to ask for a lighter sentence on the grounds that the deceased was “a low down shiftless n_____”? If not, what’s the difference from the case you mention? Sex work could be argued to be voluntary, but it turns out that many transgender people get completely shut out of the legal economy.

    Was the judge allowed to, or obliged to, rule that argument inadmissible or to sustain an objection to it?

    If such a defense was the only one available, and if taking the case required the attorney to use it, did the attorney have a human obligation to avoid doing wrong by refusing to take the case?

    I’m personally too outraged to see straight, since over the last year I’ve had a need to study transgender issues. It is truly horrible out there for them and I can’t stand any more injustice.

    • Do you classify the defense’s argument as a factual one, or as an appeal to prejudice?
      It’s factual in the sense that it doesn’t misrepresent facts. Sure it’s an appeal to bias (but not prejudice, at least not explicitly.)

      Are appeals to prejudice allowed within legal ethics?
      Bias, not prejudice. Of course they are allowed. Having a defendant’s wife and children in the court appeals to bias. Making sure a defendant is well-groomed appeals to bias. Bias is persuasion.

      If not, doesn’t that put the defense attorney on the spot? If so, shouldn’t we be condemning legal ethics?
      No. Biases large and small are the tools of persuasion and advocacy. Lawyer try to get the jury to sympathize—sympathy is bias. Advertising and all forms of persuasion and opinion-molding use bias. That’s how we communicate.

      Would it have been ethical for an attorney in the old South to ask for a lighter sentence on the grounds that the deceased was “a low down shiftless n_____”?
      That’s opinion. The lawyer can’t do that. The lawyer would have to show how “shiftless’ applied, just as the lawyer in this case cited drug use and prostitution. Characterizing the victim is prejudicial, and a lawyer would probably be prevented from doing that—maybe not. If the lawyer could get away with it, though racist terminaology in court is likely to be found to be “intentionally disruptive” (Rule 3.5) and prejudicial to the administration of justice (8.4), as well as a violation of most state lawyer oaths. See, for example..

      Seattle lawyer James M. Roe (WSBA No. 8553, admitted 1978) has been ordered reprimanded by order of the Disciplinary Board entered on June 3, 1997, following the filing of findings, conclusions and recommendation by the hearing officer. The discipline is based upon Roe’s conduct during a motions argument in open court.
      In May 1995, Roe represented a criminal defendant on an assault charge with a defense of self-defense in Bothell Municipal Court. At the conclusion of a three day trial, the jury rendered a verdict of not guilty. Following the verdict, the prosecutor moved to stay the verdict on costs and fees. During the argument on the motion, Roe interrupted and referred to the prosecutor by his first name. When the prosecutor asked Roe to address him by his surname, Roe responded, “It’s [prosecutor’s first name] to me, boy, and . . . you remember that.” Roe apologized almost immediately after making the statement. The prosecutor is African American. Roe is Caucasian.
      Based on the May conduct, the Bothell Municipal Court found Roe in contempt of court for addressing counsel in a disrespectful manner, addressing counsel with a racial slur, and creating disorder in the court. The Court ordered Roe to pay a $500 fine or donate $500 to an organization fostering sensitivity toward ethnic diversity or anti-discriminatory action; perform 40 hours of community service; apologize to the prosecutor on the record; and complete a Cultural Diversity Education Program through the Washington State Minority and Justice Commission.
      In a separate action, the WSBA investigated Roe’s alleged conduct, and the matter was ordered to hearing. The hearing officer found that Roe did not purposefully use a racial slur in addressing the prosecutor as “boy,” but that Roe should have known that, when directed to an African American male, the use of the word “boy” is racist. Roe’s negligent conduct in addressing opposing counsel during a court proceeding in a racially demeaning manner was found to be harmful to counsel, to the court, and to the legal profession. The hearing officer also found that Roe’s actions violated Rule of Professional Conduct 4.4 and the Oath of Attorney, and subjected him to discipline pursuant to Rules for Lawyer Discipline (RLD) 1.1(c) and (i). Accordingly, the hearing officer recommended a reprimand, which became a final decision pursuant to RLD 4.13(f). In addition to the reprimand, Roe will be on probation for one year, during which time Roe will comply with the terms of the contempt order entered in Bothell Municipal Court.
      The hearing officer was John E. Hanson of Bellevue. Respondent was represented by Kurt M. Bulmer. The Bar Association was represented by disciplinary counsel Anne I. Seidel and Marsha A. Matsumoto. If not, what’s the difference from the case you mention? Sex work could be argued to be voluntary, but it turns out that many transgender people get completely shut out of the legal economy.

      Was the judge allowed to, or obliged to, rule that argument inadmissible or to sustain an objection to it?
      The judge was the one he was arguing to. What he said in effect rejected the argument. It’s argument, not evidence.

      If such a defense was the only one available, and if taking the case required the attorney to use it, did the attorney have a human obligation to avoid doing wrong by refusing to take the case?
      NO! The attorney is ethically bound to take even hopeless cases. If that were an ethical process, then the worst offenders would never have a defense at all. See “The Conspirator.”

      • That’s an informative explanation, but it leaves me with a few questions. Number one, what’s the difference between “bias” and “prejudice,” other than that you say appealing to bias is OK but prejudice isn’t? At least in common usage, I would say that people are prejudiced against prostitutes and drug users, and the attourney is calling that to mind. There may be a legal distinction that I’m not aware of.

        Number two, it seems that you dodged the question about racial bias by singling out the word “shiftless.” OK, so what if the attourney for a white man on trial for killing a black man simply says “Well sure, he killed him, but it’s not like he killed someone important. He just killed a black guy, after all, how much do you think he’d accomplish in life?”

        Number three, you say that racist terminology would be against the rules as being disruptive, etc. Does that simply refer to the use of “nigger” as a huge conversational bomb, or to using an appeal to racism at all?

        • 1. Bias is much broader than prejudice. Prejudice is negative, bias just denotes a pre-formed opinion or belief that interferes with objectivity. Prejudice is based on simple dislike and disrespect without just grounds. Bias can be and is often based on facts.

          2. That argument is borderline permissible in some forms, I’d say, though I bet some judges wouldn’t allow it or react well to it. I think it’s a lousy argument. I think it would be offensive to most judges. It isn’t much different than the argument made in more subtle ways regarding euthanasia murders: “He was 90 and in a coma—really, what harm has been done here?” Except that it doesn’t have anything but prejudice to back it up.

          3. It depends whose doing the evaluating. It could easily be covered by Rule 8.4 (d), prohibiting conduct “prejudicial to the administration of justice.”

          • In that case, how does the notion that a prostitute’s life just isn’t worth as much as a “better” person’s, not qualify as prejudice? And how is the “it’s just a black guy” or “it’s just an old coma patient” more distasteful than “it’s just a hooker?”

            And it’s a valid point, that we argue all the time that killing a pillar of the community or a young promising college grad is more heinous than killing an average person. Still, that seems to be a clear case of the non-prejudicial bias you cite, whereas this incident sure looks like a lawyer saying “let my client off lightly, because the person he killed was gross and you’d rather pretend she didn’t exist anyway.”

            • It’s not prejudice if it’s based on fact. Criminals are, in fact, burdens on society. Hookers are criminals. Their activity is against the law. I think it’s a hateful and offensive argument, but the argument is that losing a murderer/child molester/robber/scam artist/mugger/drug dealer/ petty theft/ hooker is a net gain, and while that spectrum becomes too thin after a while, one is not arguing based on personal characteristics (prejudice), but based on conduct. I’m biased against criminals. Aren’t you? Isn’t everybody?

              • Only so far as their criminal activity goes. If a mugger gets killed by a would-be target, I’m not very sympathetic- violent crime was met with violence. I don’t think that “eh, she was a hooker” in any way justifies/mitigates murder, any more than I appreciate the police performing violent and often-lethal raids and then excusing themselves on the basis of “eh, he’s just a pot head.”

              • I’m biased against criminals. Aren’t you? Isn’t everybody?

                Depends on the crime.
                Breathing within 5 miles of a wildlife sanctuary – thereby releasing a harmful industrial substance (CO2) nearby – is a breach of Florida law. A criminal offense.

                See also

                The existence of such laws is very useful, as they enable selective prosecution of anyone at any time.

                The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

                – Ayn Rand

                But the key is to prosecute selectively.

      • It’s factual in the sense that it doesn’t misrepresent facts.

        There was no evidence of HiV exposure, and the deceased did not have HiV.

        While it can be argued that a sex worker is by definition exposed to HiV, that’s as much a misrepresentation as saying someone who has a box of chocolates most months, and a cup of coffee most days is an habitual drug user. (And yes, that’s happened in courts too, especially in divorce cases).

        From the evidence, a responsible sex worker is less likely to pass on the disease than a random member of the public.

        • I think that’s a quibble. I think most would agree that being a prostitute (I think “sex worker” is a cover word) involve exposure to HIV, since a huge proportion of US prostitutes are HIV positive, far out of range of women in any other line of work. I don’t think anyone would call someone who has a box of chocolates most months, and a cup of coffee most days a habitual drug user.

          • I’ll see if I can find the case transcript.

            As for “prostitute” vs “sex worker” – it might well be a cultural thing. We’re more (pardon the term) “laid back” about that where I live. Also with an essentially zero HiV rate amongst professionals, due to very strict, regular monitoring for Occupational Health and Safety standards. Much the same as for workers at scientific and industrial bio-research on pathogens.

            Amateurs on the other hand are likely to be injecting drug users, uneducated in risk minimisation, and unmonitored, and often sociopathic or irresponsible.

            The difference between those who work in industrial manufacturing of pharmaceuticals, and those who set up a meth lab in a garage.

            It feels really odd to be writing this, as I’m rather a prude.

  6. Interesting and informative! Thank you.

    If it’s an ethical obligation to take cases where the required tactics are personally repugnant to the attorney, was the criminal lawyer I knew wrong in refusing to take rape cases?

    • No. The rules specifically allow a lawyer to refuse a case that he or she finds repugnant—that’s even the word the rules uses. And there is may be personal conflict of interest, too. You don’t want a lawyer whose own emotions get in the way of the representation, so the ethical thing is for the lawyer to refuse.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.