Legal Ethics Quiz: The Bean Bag Tossing Defense Lawyer

" I swear, you can do this in court. I saw it on "Ally McBeal"...

” I swear, you can do this in court. I saw it on “Ally McBeal”…

Holy crap! Here is a courtroom stunt you don’t see everyday…or ever.

The dramatic bribery trial of Rhode Island defense lawyer Donna Uhlmann and co-defendant Jamaal Dublin took a hard left turn into “Boston Legal” territory and beyond with the, well, creative closing argument of Dublin’s lawyer, Christopher T. Millea. It was so creative, he was nearly held in contempt of court.

“You see, all of this has to do with the throwing of feces,” said Millea, cleverly reminding the jury of the bizarre conduct of a key state witness who once threw his own excrement at a prison guard.  “The state wants to throw as much against the wall to see what sticks, just like Michael Drepaul throwing his feces …”

With that introduction, Millea took two bean bags out of a box he had placed in front of the jury, and threw them at the courtroom door. Then he retrieved the turd stand-ins and placed them in another box near the door, and placed that box next to the one in front of the jury, which, it was later discovered, read “Reasonable doubt,” though only the jury could see the words. The first box was labelled, “State’s case.”

“I would suggest to you, ladies and gentlemen, that after the state has thrown the feces against the wall …” Millea began…and Assistant Attorney General Scott Erickson stopped him with an objection. The judge stopped the proceedings and ordered the jury from the room. A hearing was then scheduled to determine whether Millea would be held in contempt of court. He apologized, saying, “Your honor, if I did something to offend the dignity of this court in representing Mr. Dublin — as the court mentioned a zealous defense is what I pride myself on — but if I did something to offend this court, I am truly sorry.”

This was a clear non-apology apology—a 7, 8, and 9 on the Apology scale, where the apology is forced, the apologizer doesn’t believe he was in the wrong, and the wording of the apology indicates that he isn’t apologizing for the act itself, but just “sorry” that it got him in trouble. Nevertheless, the judge accepted the apology and felt that he had made the point he wanted to make, which was that lawyers should ask permission before using props and off-the wall (literally!) courtroom stunts. I think Millea was lucky that his apology didn’t compound his peril: “Your honor, if you really think using beanbags as metaphorical shit and throwing then against the courtroom door offends the dignity of your court, then I am sorry” is what he literally said, and that’s an insult, to the court, to the judge, and to the intelligence of anyone who heard him.

But contempt of court is the judge’s call, while this quiz is about legal ethics. Rhode Island’s Rule 3.5 , Impartiality and Decorum of the Tribunal, says…

A lawyer shall not:
…(c) engage in conduct intended to disrupt a tribunal.

To help interpret the rule, the Comment under it adds…

[4] The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Your Ethics Alarms Legal Ethics Quiz is therefore…

Did attorney Millea violate Rule 3.5 (c) with his beanbag/throwing shit against the wall display?

Ready for the right answer?

The one word, in the Rule’s comments that suggests that he did is “theatrics.” The comments, however, are not the considered the rule itself, and while what Millea did undeniably falls under the category of theatrics, I think it is equally obvious that the demonstration was not intended to disrupt the tribunal. No defense lawyer wants his closing argument stopped by the judge. The other word that could be used to hold Millea in violation of 3.5 is in the title: “decorum.” He should have known that such a tasteless tactic would be seen as the kind of breach of decorum no judge would tolerate, but he did not. Therefore, he did not violate Rule 3,5.

He just behaved like an idiot who had watched too many TV lawyer shows. There’s no ethics rule against that, unless it is Rhode Island 8.4 (d):

It is professional misconduct for a lawyer to:
…(d) engage in conduct that is prejudicial to the administration of justice..

If a disciplinary panel found that Millea violated that rule, I wouldn’t argue.

_______________________________________

Pointer: ABA Journal

Facts and Graphic: Providence Journal

 

21 thoughts on “Legal Ethics Quiz: The Bean Bag Tossing Defense Lawyer

  1. Thanks to the several readers who alerted me to yet another metadata invasion, which occurs when I skip the step of pasting Word text first into Notepad before it goes into the WordPress draft. This did not used to happen, dammit, and again, I swear, all that junk does not appear in the draft, so I don’t see it unless I check the posted version, which I should do, and will try to do in the future. Gack.

  2. Yeah, but that is my problem with Rule 8.4(d). It is the “pile-on” rule. If we can’t get you with anything else, we will get you with this because it is so vague that anything could violate it. And, if we can get you on something else, we will pile-on with a Rule 8.4(d) violation.

    What I did not like about his argument (and yeah, the beanbag stunt was silly, obnoxious, etc.) was that the boxes apparently were sending hidden messages to the jury. You can’t preserve a record without non-verbal messages being verbalized.

    However, it may have detracted from his argument to interrupt it with, “Your Honor, let the record reflect that I have deposited the metaphorical feces in a box marked ‘Reasonable Doubt’ so that the Jury understands that the State has not met its burden of proof.”

    -Jut

    • “You can’t preserve a record with non-verbal messages being verbalized.”

      And, when I say “with,” I mean “without.”

      -Jut

    • And he might have claimed that he was prepared to DO that had he not been stopped midway. I think the hidden message to the jury is a per se ethical violation.

      8.4 (d) is a piling on provision, yes, but it is also a necessary “catch all” to cover clear ethics violations that the rules don’t specify. All codes need one. A NY lawyer was disciplined under 8.4 (d) for barking like an angry dog at a witness at a deposition. That specific infraction wasn’t mentioned in the rules, but I agree that it’s unethical…

  3. I’m still trying to wrap my head around how “this all has to do with the throwing of feces.” Prisoners throw awful things at guards, which makes them worse people but doesn’t have anything to do with their testemony. Did the poo have some significance? Or was it just the defense saying “Yeah, that guy said bad things about the defendant… but he also THREW POOP so what can you think of him? Oh, did we mention he threw poop? Because the prosecutor’s witness once threw poop.”

      • Ouch. Must be a rough defense if that’s all they can muster as “what it all comes down to” in their summation.

    • but he also THREW POOP so what can you think of him?
      ************
      Poop throwing would cause me to question the guy’s credibility.
      That is an unbalanced individual.

      • AKA a convicted felon who doesn’t like the guards. AKA a convicted felon. Find a prison guard who’ll be honest with you and ask what he gets thrown at him on a daily basis- It means he’s an asshole, sure, but not crazy.

  4. As I have said so in the past, not a lawyer so my “legal” opinion is not worth very much, but my read is that the intent of “Rhode Island’s Rule 3.5 , Impartiality and Decorum of the Tribunal,

    A lawyer shall not:
    …(c) engage in conduct intended to disrupt a tribunal.”

    Is restricting the lawyer from disruptive actions that are not related to representing his client and specific to his relationship and conduct in interacting with the court. To me word emphasis, hand gestures, metaphors, demonstrations all could fall under the theatrics label, it is the intent that drives violation. Without knowing the background of the shit throwing incident and how it may have tied into the trial, his observations of the jury, their reactions and the prosecution’s case it may have been a very effective tool in which to represent his client. With that said should he have been found to have violated the rule but effectively represented his client what would be your ethical verdict?

    I understand that decorum may have suffered but if there was a powerful moment during the trial in which invoking a similar or related response from the jury would help his client that is his duty is it not?

    • Yes, that’s exactly what was intended: “How seriously can you take the testimony of a guy who throws his own poop at people?”

      If anyone provided any background hopefully the jury could look at the context of the poop throwing.

      As nasty as it is, I have seen feces thrown in the past by both men and women in prison. Many times it is reserved for those instances where something outrageous and wrong is occurring, or is perceived to be, at the prison. Most times, when not just some depraved psycho, it is a perception issue. I know it sounds ridiculous, the first time I ever saw it was over seas and though it was a cultural issue, but when it comes down to it shit throwing is one of the only means in which the prisoners can react to the guards or conditions. So with the caveat that despite it being a depraved act it doesn’t always mean that the prisoner doing it is a depraved psycho; I would take it seriously, it could be an indicator that something wrong is happening to the shit thrower. However if the shit throwing wasn’t coupled with other indicators of a weak character, obviously the witness is in prison so we are talking an uphill battle, then if there was a cause for the feces fest then the witness testimony should hold some weight. Of course that is a hell of thing to get your head past so hopefully the prosecutor had some –other- solid evidence.

      • If it’s just feces and not the guard getting “cocktailed” (feces, urine, blood, and semen in one cup) then you know he can’t be TOO psycho…

    • I understand that decorum may have suffered but if there was a powerful moment during the trial in which invoking a similar or related response from the jury would help his client that is his duty is it not?
      ***********
      Brings to mind the moment when Zimmerman attorney Mark O’Mara straddled the prosecution’s dummy on the floor in front of the witness stand and proceeded to beat it’s head in.
      Powerful stuff – a picture is worth a thousand words.

        • Obviously context matters, in this case basically discrediting the witness and tying the prosecutor’s case to him. If the revelation of the shit throwing resulted in the jury laughing, sneering or what not then I can see making an effort to elicit the same reaction at closing and wrapping it up with the overall case. The visual of throwing shit could do it…….

      • That’s the first thing that popped into my head- but that was a theatrical representation of the crime, to prove a point about how something must have happened or could not have happened. This seems more like a lawyer imitating trayvon’s thug stride or zimmerman’s nervous uptight gun-toting strut, in order to make them look stupid.

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