For whatever reason, there have been a lot of attacks on the legal profession lately—and some from within the legal profession—because of so-called “disgusting” and “frivolous” arguments by lawyers who are zealously representing their clients. These range from outrage over the so-called “affluenza” defense (which, it apparently does no good to point out, was explicitly rejected by the judge in that case), to the law suit against the Glendale, California memorial to women forced into sexual slavery by the Japanese in World War II, to the argument that Red Sox broadcaster Jerry Remy was complicit in his son’s allegedly murdering his girlfriend because Remy hired a lawyer who mounted a vigorous defense in the son’s earlier domestic abuse arrests.
Lawyers are ethically obligated to advance whatever non-frivolous arguments and theories that are most likely to achieve their clients’ objectives, whether it is avoiding prison or rationalizing the crimes of the Japanese army. That is their job and societal function, and it is essential to our avoiding a jack-boot system where any of us could be thrown in jail by popular opinion or government edict. The laws are there to be used by every citizen, even when the citizen’s objectives are unethical, or when the citizen is a cur.
Our rights are all protected well by this principle, and it’s high time we stopped bitching about it.
Undeterred by this, however, yet another defense attorney is being savaged in the news media and blogosphere, as well as by women’s rights advocates, for making an argument in defense of his client that they find offensive. In Georgia, Darriuos Mathis and his legal team are making the argument, among their efforts to show that the evidence against him is not sufficiently conclusive, that Mathis is too attractive--fit, handsome, sexy– to have to resort to kidnapping and raping a 24-year-old woman two years ago, which is what he charged with.
Is it a ridiculous argument? I sure think its is. I also thought, in fact I know, that the O.J. Simpson defense team’s claim that the police planted DNA evidence to implicate the NFL star was ridiculous. The theory was impossible, you know. The police would have had to do that—why would they be out to get good ol’ O.J.?—before they even knew whether Simpson had an airtight alibi, or was a plausible suspect. It didn’t matter, though. In front of that jury, cleverly chosen by defense jury consultants to maximize sentiment against white police and in favor of a black celebrity, proof that a lead police detective, Mark Furmin, had once used a racial slur was enough to create “reasonable doubt”. (Those gloves didn’t help, either.) That jury was convinced by the planted DNA theory, and those jury members, not me, not Nancy Grace, were the ones Johnny Cochran and company were duty-bound to convince. And they did.
Feminist website Jezebel unwittingly rebuts its own outrage at the “he’s too handsome to be a rapist” defense by quoting various tweeters, commentators and bloggers from around the web on the looming California trial of former NFL star Darren Sharper, who is alleged to have drugged 11 people and raped 7 women across 4 states. Some examples:
“Darren is a sexy man!!! Can’t imagine him having to rape anybody to get some!!”
“I doubt it. He does not need to rape a beaux! They give it up willingly for a high price! But if you cross him watch out.”
“Darren Sharper Can’t Get The Willing Coochie Anymore???”
“Darren Sharper is too fine to be raping people… (That has nothing to do with him being sick but still)”
“Darren Sharper too fine to be out here living that roofie life. Unless his peepee is just SUPER itty bitty…”
“Whaaaat! With dimples like that why would he have to rape anyone? Damn, I hope it’s not true I used to love him on the Saints. SMH”
“I don’t get it. Why would Darren Sharper fine ass need to rape somebody? It’s a hoax for sure! Has to be.”
“Darren sharper too fine to do the raping…he should be fighting from getting raped by women”
“Darren sharper is sexy and handsome, hoes probably tryna set him up. I know them hoes lying.”
I know: morons. Nevertheless, morons get on juries, and a strong bias like this, absurd as it is, figures into the state’s challenge of proving guilt beyond a reasonable doubt. If a defense attorney believes that members of the jury are vulnerable to the idiotic suggestion that a man who is attractive can’t be a rapist, then that attorney isn’t being unethical to use that bias. It might be unethical not to. The prosecution’s job is to educate the jury so that they can get past their irrational biases and consider the evidence.The defense’s job is to exploit whatever biases it can to the benefit of the defendant.
I wrote about a similar problem a coople of years ago when I examined the so-called “nerd defense,” the tactic of putting defendants accused of violent crimes in glasses so that juries would judge them too “nerdy” to commit the crimes attributed to them. It’s really the same issue—appealing to appearance-based bias—and I ended the piece like this…
This means that the existence “nerd defense” creates a legal ethics dilemma for the criminal defense lawyer. It works, it will never lead to professional discipline, it may be unethical, and the client has a right to the most effective representation the attorney can muster. Should she try it?
The answer, I have since reluctantly concluded, is yes, and the “nerd defense” is more ethically gray than simply pointing out that the defendant in a rape case is a stud . At least the appearance the lawyer is using to appeal to jury bias is real in the rape case, as opposed to being manufactured by the lawyer. Still, few would argue that a lawyer should allow his poor, disheveled, unshaven and unwashed criminal client, Jean Valjean, to appear before a jury without being shaved, groomed, and put in some decent clothes after living in the sewers. Biases work both ways. When an innocent man “looks like a murderer,” the defense attorney has to try to erase that bias. If a guilty man “looks innocent,” the prosecution has to do the same.
I hate the “too handsome to rape” defense. Before some juries, like one with me in it, such an argument would risk a backlash. If, however, the juries for Mathis and Sharper are stocked with gullible people who believe such nonsense, their lawyers would be breaching their duty not to try it in pursuit of “reasonable doubt,” which is sometimes nourished by unreasonable assumptions. Like it or not, that’s what ethical criminal defense lawyers do.