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…
 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