There is a true story about Clarence Darrow putting a wire in his cigar and puffing it during an opponents closing argument to the jury. The idea was to create an absurdly long ash, so the jury would become distracted and watched to see when it would fall on his suit, when they were supposed to be paying attention to the summation. I’ve used that story in ethics seminars, asking attendees if this was unethical, and if so, was there a rule that could be used to punish a lawyer who did it.
Now comes word that the Maine Supreme Judicial Court ruled on Tuesday that there was no prejudicial error in the trial of Buddy Robinson, who was convicted in the death of his downstairs neighbor, despite the fact that the prosecutor, then Assistant Attorney General Andrew Benson, pretended to fall asleep during his Robinson’s lawyer’s closing. Robinson had appealed the verdict because of this and other questionable conduct by the prosecutor. Benson admitted that he sometimes pretended to be asleep in trials to annoy defense attorneys. In its opinion denying the appeal, the court concluded that the trial judge did not err in denying Robinson’s motion for a new trial, given the strength of the prosecution case.
It also said that the fake sleep bit “was sophomoric, unprofessional and a poor reflection on the prosecutor’s office.”
It’s also an ethics violation, a couple of ways. Maine’s Rules…
RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
A lawyer shall not…
…(d) engage in conduct intended to disrupt a tribunal
RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to…
…(d) engage in conduct that is prejudicial to the administration of justice
Both provisions are intentionally broad, but I think they apply to this conduct without much question. There was no such rule when Darrow smoked his rigged cigar, but even lawyers then recognized that distracting the jury by making sounds, funny faces or using more elaborate diversions was a dirty trick, and not fair to the other side.
I have not heard whether any disciplinary action has been taken against Benson. Prosecutors are seldom disciplined, a serious problem for the profession. He should be.
Pointer and Facts: ABA Journal