Sharper, Mathis, Ted Bundy.
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.
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Ethics Alarms 
Hey, if a hip-hop “artist” can be worshiped by women after beating his girlfriend to the point she needed medical attention (and qualifying for a felony in the process), why can’t a guy be too good looking to rape?
I put nothing past society anymore.
I will never forgive Chris Brown! 😡
You don’t count, whitey…
Minor correction:
“…idiotic suggestion that a man who is attractive can’t be racist…”
I think you meant “..can’t be a rapist…”
He can’t possibly be racist either… (I’ll fix it)
The part that confuses me is thinking about relevant vs irrelevant arguments. In the Simpson case it may have obviously been a stupid argument but it is, technically, POSSIBLE that a racist cop(s) fabricated the evidence to set him up. If that had happened it would, of course, have been very relevant to OJ’s guilt or innocence.
In this case the argument is irrelevant gibberish, because the defendant’s looks aren’t material. Simpson’s lawyers were presenting an alternate (if insane) theory of events, while this argument isn’t an alternative to anything- it seems like they aren’t really comparable.
I share your confusion – rationalizing these as equivalent would suggest, if successful, no highly attractive person could ever be guilty of this type of crime (leading to a free pass, and many rulings overturned – plus how good looking is good looking enough for the free pass?). Whereas planted DNA or other evidence, sadly, has occurred, and could be a valid claim (regardless of the merits in the OJ case).
That’s the point, though—it was an intellectually dishonest argument in that case, just as the lookism argument is in any rape case. Planting DNA evidence before someone has been clearly indicated as a plausible suspect risks implicating the police—it’s absurdly risky, and no motive for it was established other than presumed racism.
OJ was a well-known wife beater. And if the wife or ex-wife is killed, especially if the method is as intimate as a stabbing, it’s probably the husband anyway. The officers could have felt that they were expediting the process (essentially framing a guilty man), to make everyone’s lives easier. And 99 times out of a hundred, it probably would have worked.
But the LAPD was/is very well known for routinely planting evidence. http://en.wikipedia.org/wiki/Rampart_scandal Even more so in the black community. So the “who us, plant evidence?” shtick was never going to go over very well with that jury anyway. OJ just had the resources to exploit that skepticism to the point of reasonable doubt…helped along enormously by the gloves, I think.
http://onlyinamericablogging.blogspot.com/2011/11/police-planting-evidence-widespread.html
But to plant the evidence when it was alleged, the cops would have to know that OJ had no alibi before he had been checked out, don’t you see? The ex-husband is always a suspect, but you don’t plant evidence to frame a rich celebrity if you’re going to be caught at it.
It was an eye-rolling theory, successfully designed for anti-white racists and celebrity lovers, who were happy to see a white women get hers for taking a black star away from his “people”—as if O.J. wasn’t fully integrated into the white elite. The rejoicing when OJ was acquitted was the single ugliest moment on the African-American side in US race relations history, right down there with Arabs celebrating 9-11.
? I don’t see how the “planted evidence” theory was anti-white, unless you are conflating the police with whiteness. The LAPD was very well-known for planting evidence on suspects. If the blacks on the jury were biased on that score, it was because they had cause to be, and the defense did a good job taking advantage of that known perspective. But at any rate, it was not an all-black jury, there were whites on it as well, and obviously they had reasonable doubt too. It was already known when the police searched his home that OJ had taken a trip out of town, and they also knew about the general timeline of the murders.
The defense didn’t have to come up with an airtight theory, they only had to come up with a plausible theory. *Could* it have happened they said it did? They put on a masterful case for reasonable doubt, helped by a lot of prosecution missteps..
I think some people celebrated because they saw the justice system working for an African-American for once the same way it worked for other people. It only took a crap load of money, but it happened. For many people, that was a heady thing.
Yes, but I don’t recall seeing women high-fiving when Casey Anthony was acquitted, or “white Hispanics” cheering when Zimmerman was acquitted. O.J. was a celebrity, and celebrities get a pass by juries more often than not. If you had a clue what was going on, there was nothing about justice to blacks in the trial at all. When the justice system “works” to free a double murderer—there was only reasonable doubt because the prosecution manufactured it for the defense out of pure incompetence—there’s just nothing for decent people to cheer about. I recognize when a criminal has to to free because a police search was bad, and I’m glad the system keeps its integrity, but no one in their right mind says “Whheeee! A heroin peddler is free! Justice is done! God is great!” Ugly. And the scene did as much to wound race relations as the media/Democrat/race-hustler sliming of George Zimmerman as a racist killer, rather than just the plain, ordinary asshole that he is.
White women have been getting the benefit of the doubt in the justice system since forever (especially pretty white women). I’m not sure if “white Hispanics” have enough group solidarity to care one way or the other about Zimmerman.
OJ is black, and black people have been getting the short end of the justice system in this country since forever. Like most celebrities, he probably got off not so much on his celebrity, but the fact that he could afford excellent attorneys. The police have planted on evidence on minority suspects for so long, it had become routine. The fact that OJ managed to wield privilege that would have been unavailable to him (celebrity or no) just a few years prior was, in a twisted way, a sign of racial progress. I think for a moment people were elated that the system worked exactly the same for a (famous) black person as it would for a (famous)white person. It’s only confusing/disappointing if you don’t realize how deeply many black people feel that the justice system is completely hostile to African-Americans. It was good to restore some faith into the system, even if the defendant himself was deeply flawed.
Your arguments assumes that people in government always do the wise thing or always cover every angel before acting- something your previous posts on this blog refute handily.
Point taken. But a theory proposing an irrational act against interest is seldom the most or even a plausible theory. It shouldn’t undergird reasonable doubt.
Agreed, but Furmin put the icing on the cake when he took the fifth when asked about planting evidence. Admittedly, it shouldn’t have mattered, but I would virtually guarantee that it did.
Sure it did. And it was 100% irrelevant. But as defense attorney, I too would have beaten it like drum.
Then I’m confused. I was going to say basically the same thing as dragin above. If you have a case that lacks direct eyewitnesses, or a murder weapon, built solely on circumstantial evidence, and one of the star witnesses who supposedly found some of the key pieces of evidence refuses to answer and takes the 5th when asked if he planted evidence, how could there not be a huge tilt in favor of reasonable doubt? How is that irrelevant?
Maybe the defendant was so good looking that he thought he was ‘God’s gift to women’, so he could and did get any woman he wanted, but when he met a woman who said ‘NO’ he thought, ‘How could she not want me?’, She is just playing ‘hard to get’, so ‘I’ll just have to try harder’, and so he tried too hard.
So with this counter argument the DA could say he is definitely guilty.
Can I argue I caused a road accident because the cars in front were too ugly to look at?
You certainly can try…if it’s true, of course.
Surely he can try whether it’s true or not, the Jury might buy it, if they’re gullible enough.
By the defense logic ugly people are almost automatically guilty of rape. Who would want to have sex with an ugly person and who wouldn’t want to have sex with a good looking person. I’ve heard that you can’t underestimate the intelligence of a given group of people, but there bust be a law of diminishing returns. It’s a pretty risky strategy given that 50% of the population is below average in looks.
I think it could work, especially if it was only one or two accusers. In Sharper’s case, he has a long list of women all across the country, so he has to fight the “where’s there’s smoke there’s fire” natural bias. But so many people think men only rape because they are so desperate or horny that they are overcome with desire, and rape the woman. So a “look at me, I get plenty” defense could work very well for that angle.
But doesn’t the outrage over the defense help impress upon people that it is indeed a ridiculous argument and teach future jury members that no matter how handsome, one can still be capable of evil things?
The defense may be within his rights/duty to make such an argument – and the reaction such a defense should generate is rejection by any sane person.
I’m glad you brought this up, because there’s a related ethical question I’ve been wondering about for some time now. A few years ago, there was a furor over on Jezebel about another rape case. This involved a large number (I think around 10) of adult men who had sex with an 11 year old girl. Their guilt wasn’t in question, because they were stupid enough to film the whole thing on their phones, but one of their lawyers argued for a lighter sentence because, he said, the 11 year old girl was a seductress who was “drawing men into her web.” Obviously, this is a horribly distasteful argument, but is it ethical for the lawyer to make it? It sounds like from what you’re writing here, it probably is.
I wrote about that case somewhere. I’ll try to track it down.
To be fair, the lawyer really did not have any good arguments available
Jack,
For the record, Jean Valjean never actually lived in the sewers, he merely used them as an escape for himself (and an unconscious Marius) following the collapse of the barricade.
Geez, get your facts straight.
-Neil
I stand corrected.
Of course, if I were Bill Clinton, I would point out that since Valjean used the sewers, and was alive while doing so, he most certainly lived in the sewers (he wasn’t dead in there, was he?) and that’s all I meant.
“Too handsome to rape?Well,as someone else posted,if Chris Brown’s career EXPLODED after he beat up Rihanna,and various athletes find their way on rosters after abusing their women,way shouldn’t dummies believe Darren Sharper is “too handsome to rape?” After all,the U.S. Presidential race consists of two odious people,a billionaire scumbag and misanthrope and a sleazy former “First Lady” who learned how to get away with crimes from her husband,who’ll be “First Laddie” should she win the election!!!!