Defending his client of rape charges, Tennessee criminal defense lawyer Steve Farese told the jury during his closing argument,
“People can be very good at lying. Women can be especially good at it because they’re the weaker sex and we … and we want to protect them and not have anybody take advantage of them at least I do.”
Head-exploding fact #1: The jury Ferese was appealing to by emphasizing the inherent dishonest nature of “the weaker sex” was made up of eleven women and three men.
Head-exploding fact #2: The jury still acquitted Ferese’s client.
That doesn’t make his argument ethical. The statement appealing to anti-women bias was a direct ethics violation, a breach of Tennessee Rule of Professional 8.4 (d) forbidding lawyers from engaging in conduct that is prejudicial to the administration of justice, which deliberately appealing to anti-woman bias clearly is. For the future, the episode also raises questions about whether such a closing would breach the new ABA rule 8.4 g, yet to be adopted in Tennessee or any state, which states that it is unethical for a lawyer to
“engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
The ABA notes specify that “This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”
I am certain Ferese’s statement would breach 8.4 (g), not that it isn’t unethical anyway.
The fact that the attorney’s outrageous statement didn’t lose the case for his client doesn’t make it more ethical or less idiotic. The judge could have and should have declared a mistrial. The argument was not only improper, but incredibly improper. It is possible that the jury found his client not guilty in spite of his bigoted and misogynist representations rather than because of them, and if so, brava to the women on the jury who resisted the impulse to punish the defendant for having a sexist dolt for a lawyer. Maybe the prosecution didn’t prove the State’s case. Nevertheless, don’t make the mistake of seeing this as a defense attorney’s zealous representation of a criminal client.
Ferese’s comments appealed to pure prejudice, asserted facts not in evidence, and were bright line ethics violations. That they “worked” doesn’t insulate him from the disciplinary action from the bar that is sure to come…at least it better come.
I might have to file a complaint myself.
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Pointer: Fred
Ethics Alarms 
Poorly expressed to be sure, but in the context of a trial he may be just saying that decent men and women alike want to protect women from rapes, and this legitimate desire may cause us to believe this particular woman who, according to him, is otherwise unworthy of belief.
“Women can be especially good at [lying] because they’re the weaker sex” means THAT???? If he can’t speak more articulately than that, he has no business being a trial lawyer.
Is it possible that what he really meant was that it’s easy for a female accuser to make up a charge of rape because, traditionally, our society has viewed women as the weaker sex and in need of the protection of males, so such women often get the sympathy of juries who don’t want to believe it’s possible for them to lie?
I’m willing to believe that this lawyer is just a really poor speaker along the lines of President Trump and many of his underlings. It’s no excuse, of course, for a lawyer to communicate that badly in court.
Well, he just won a rape trial. My guess is his client disagrees.
Many a lawyer has been properly disciplined for unethical tactics that worked. That’s why clients don’t participate in ethics hearings.
Of course thats it Dan. What he meant, not artfully said, was that women’s lies can be especially effective, because we want to protect them. Not that women lie more than men. That’s how I took it.
Remember, a trial is like live theater without any rehearsal. I prepared an argument last week that was 15 mins when I practiced it and 45 mins when I spit it out for real. You improvise, you edit, you strategize all on the basis of what the opposing counsel said, how the jury is reacting, and all on the fly. And not surprisingly when you go back and read the transcript, you wonder what you were thinking (or what the court reporter was thinking).
I don’t know if that’s what when on here, but bear that in mind.
Agreed. And this was closing argument, which means the guy has probably gotten 3-4 hours of sleep on average for the past week, if he’s lucky.
I don’t think I agree with you on this one, Jack.
First, I read his statement to be saying that women were the “physically” weaker sex. Of course, he should have added the adjective to make us sure, but if he did intend to say that, isn’t that just true? If, for instance, I had a black client who was a defendant, and I said “Black people are darker than white people, and it was dark outside, so it would be hard for the eyewitness to identify my client”-how is that prejudicial to the administration of justice? I recognize that these aren’t perfect analogies, but if what he’s saying is true “women are physically weaker”, then I don’t see how it can possibly be discriminatory. To me, if we start saying nonsense things like that are discriminatory, then we’re really going to have problems administering justice because lawyers will not be able to say true and relevant things.
If he meant women are physically weaker, then I don’t think that part of his statement violates any ethical rule. Although I will grant you he should have spoken with more clarity.
If there’s one thing I’ve learned from watching my wife give birth to our child, it’s that women are the stronger sex except when it comes to physical strength. If he indeed meant that women are weaker emotionally or psychologically then he did say something discriminatory and prejudicial to the administration of justice. But I don’t seen any evidence whatsoever that this is what he meant.
I also agree with Dan Abrams that, taken as a whole, his statement must mean that women are more likely to be believed because society wants to protect them from rape.
The question about dishonesty is more problematic, but even that I don’t think gets us to an ethical violation. He says “Women can be especially good at lying BECAUSE….” It’s only discriminatory in nature if you have proof that in a different case he wouldn’t say, “Men can be especially good at lying BECAUSE….”
Obviously the alleged victims candor, or lack thereof, is highly relevant to the case. In fact, it’s possibly the only relevant thing to the case.
Perhaps this statement proves that he doesn’t have the requisite skill to be a trial lawyer, but I don’t think we can say, based on the evidence we have before us, that he’s violated any ethical rule whatsoever.
Based on this post alone, (I admit I didn’t do any deeper research so you may know something I don’t) I would never be able to find this guy guilty of an ethical violation.
On the other hand, I definitely do not feel any inclination to hire this bozo either.
Unrelated, but did you link to the wrong newspaper article? The one linked talks about when the trial is set for, and you are talking about the trial proper.
I’m uncomfortable with taking 40 words out of a million word career and calling this attorney a “bozo” or “idiot.” Maybe you’re right, but we can’t tell on the basis of this.
Eternal: Agreed. I should have said, “If this is representative of this individual’s representation I would be in no hurry to hire him.”
In my recent trial advocacy course, a law student stated that the perpetrator in a wrongful death action felt worse than anybody about the death. I pointed out that this was such a callous thing to say, what about the victim’s family. This individual hadn’t even thought of that until I said it, and this person is very driven and very smart. Point being that even smart, articulate, dedicated lawyers just have a stupid gaffe from time to time. Hopefully, for the sake of his future clients, that’s what happened here.
Jack: On occasion, I find it valuable to be “behind the times.” Lots of things are considered offensive because there’s so much political value in saying things are offensive. So, when someone states that saying women are the physically weaker sex is offensive, I just roll my eyes at them, and don’t have much more to do with them. In general, women ARE physically weaker. (I mean your body builder could squash me like a bug, but I don’t think either of us are representative-I’m fairly weak for a man and she’s obviously much stronger than an average woman.)
Now, if you’re concern is that he shouldn’t have said “the weaker sex”, I agree as a matter of both common sense and best options for his client. It’s a buzz phrase that may well turn certain members of the jury against this lawyer’s client-obviously not what you want. There were clearly better ways to say it.
My opinion is that anyone who says that women are the “weaker sex” when they mean that women are the “physically weaker sex” has not said or done anything that’s actually offensive. It may seem offensive, and get the Political Correct crowd all up in arms, but I think it’s best to deal with the meaning people actually intend. If we don’t, we start doing what modern politics has become (everyone criticizing what the other guy or girl said, rather than dealing his or her obvious intended meaning).
Based on what I’ve read, he meant “women are the physically weaker sex.” Of course, he said it poorly, but that does not an ethics violation make. (At least not under the theories you proposed, if this had gone South for his client, such a statement may have proven that this lawyer lacked the competence to represent his client-a bit of moral luck there, I suppose).
You are behind the times and culture by, oh, 40 years? “The weaker sex” has been opposed as demeaning and condescending by the women’s movement since at least the 70’s, and was viewed as a dubious and offensive cliche long before that. It is far from just a statement that most women are not as large or physically strong as most men; it is an assertion of inferiority, helplessness and general weakness.
The term is referred to as “dated” by the Oxford Dictionary, and “offensive” by the Cambridge dictionary. Closest to what the term means in 2017 is the definition in the Urban Dictionary:
1) A term used to describe one gender as naturally inferior to another=
Argument: Women are the weaker sex because they’re emotional, self-centered, vain and can’t fight as well as men can.
I was missing a link: thanks. It’s fixed.
By the way, this was the victim in the case…
Ok, I’m kidding.
If we are going to assume that what he said and what he meant are quite different, we also need to assume that he is not competent to be a trial lawyer; the ability to communicate clearly is vital. Lack of sleep is no excuse here.
If his words clearly represented what he meant he should be censured.
See valentines comment above. When people speak for a living, the words sometimes don’t come out right, even for gifted orators. Or sometimes they don’t get transcribed correctly.
If this gets someone censured, I’ve got to consider turning in my bar card(s).
When words in court don’t come out right, cases are lost, lawyers get sued for malpractice, mistrials are called, lawyers get hit with contempt, criminals go free and victims don’t get justice.
Bingo.
Not an attorney, so I have no idea what I am talking about. But his client, the defendant had a right to the best defense he could muster. Casting aspersions on 60% of the human race might be classifiable as doing that, especially since most studies indicate that women, while able to improve actual strength more than men, they cannot BEAT men of equal weight in a fair fight. The ‘lying’ part, to make it simpler, does seem to be a bit over the top.
No doubt, but zealous representation still has limits, and appealing to bigotry is one of them.
I don’t think he was deliberately appealing to anti-women bigotry while arguing to a jury with 11 Women on it. He was making a point that sounded a lot different in the context of the case.
See, that’s where the idiot part comes in. You are assuming that he didn’t mean to say what he said because saying and meaning that would be mind-numbingly stupid. But I can’t imagine telling jury packed with women that they are the weaker sex and especially good at lying under any circumstances.
A trial lawyer winning a trial is no defense to accusations of unethical conduct. But it is a complete defense to an accusation that the lawyer is stupid because of something he said in closing argument.
How so? Pure moral luck. It was stupid, and he got away with it. Happens frequently.
Maybe so. But I’ll take winning and sounding stupid over losing and sounding brilliant any day of the week.
As would any good lawyer. But the conclusion that one will generally serve one’s clients ends by being stupid is a mistake.
Maybe, the specific women of this jury in Tennessee did somehow in their heart agree with what this lawyer said.
Oh, I think that is very likely. Just as a bitter black cab driver told me that the struggling DC government needed “more white people.”
Having read a considerable amount of feminist theory, it is often expressed there that a woman’s weak status — a physical weakness generally — leads to situations where to get her way a woman has to use other tactics, and these are usually psychological. A woman does not have physical strength to overtly confront a man, so she lears to use other techniques which are mental, emotional and psychological. Feminism, in what I have read, asks women to become more conscious of their own ways and means of using psychological and emotional power deviously and manipulatingly.
One of the pillars of Hyper-Liberalism — the out-of-control liberalism that dominates our present and is visible everywhere — is that women are ‘equal’ to men. The assertion was cooked in the 60s and 70s and people got behind it with revolutionary and near-religious zeal. Behind that notion, that declaration, that necessary PC Statement, which if you don’t think it, say it, chime it, repeat it may land you in all sorts of hot water, I discern various intentionalities, and most of them are not good. To reveal that would involve an extended conversation but it could be done.
The revolutionary zeal to reengineer women to behave and act like men is an outcome not necessarily of truthful or realistic positions, but of the imposition of political and other ideologies. Hyper-liberalism is like mercury and forever in motion. Once it finishes its revolutionary activity in one category it seems to have no choice but to proceed into others.
What is served by seeing women as *equal* and the same as men? How odd that throughout all of literature, for something like 4000 years, woman has always been recognized and understood as a different pole within the human complex. Different, not the same. But now, in a hyper-modern present, suddenly (that is, suddenly historically) it has become America’s plan to reengineer woman, and they pursue it with classical religious zealousness! (I do see feminist theory as originating out of American political and social traditions, and then I would mention that it is American political and social zealousness that seeks to bring this feminism to the whole world, and to make those others who think and see different as villains. In other cultural settings this imposition of American-style values has culturally undermining effects. For example I live now in Colombia and I have observed, and observe every day, the ‘imposition’ of these and many other attitudes on what was and has been a more traditional culture. That is ‘the revolutionary spirit’ and it in itself needs to be examined and put on trial).
Having to see women as *the same*, and having to make certain statements about women’s strength, and then when there is the danger of getting into legal trouble for what one thinks and understands, indicates to me the presence of the dread Political Correctness. Therefor, one has to stop, examine the politically correct impositions, analyze them and come to understand why they are there and what exactly they seeks, and then also to turn back to make an examination, in truthful terms, not of the sameness of men and women, but of their differences and different kinds of strength and weakness.
Like most things, the truth can be found in old country music songs. As ed Bruce said about women on his song “girls, women, and ladies”, “they’re sitting on top of the world we’re trying to win”. Makes you wonder who is really the weaker sex!!
I listened to that song all the way through. Maybe she just didn’t want to face the embarrassment of having to make a choice? They pushed it on her and she surprised them both! A more *adaptive* strategy, from a group perspective anyway, would have been to surrender the field as it were to his rival. A song could have come from that too?
Jack writes: “See, that’s where the idiot part comes in.”
Idiot if in the Greek sense!
For me, this blog has unquestionably been very helpful and useful, both to gain a better understanding of the general field of ethics, and to understand better how lawyers deal with ethics within a social and legal context — this is the positive aspect and what is gained from the surface of things. But there is another aspect of what I gain, and it is inadvertent.
It goes like this: To discover what is conservatism, one has to be confronted by everything that is unalike to it. But when one is confronted with political positions which have taken on a near-religious zealousness, and seek to assert certain things as *absolutes*, that is always the point for me of having to come to a stop. A literal stop inside myself. Because the implications of this *zealousness*, as I call it, and the social and also spiritual ramifications are meaningful and consequential indeed.
The transformation of woman is indeed meaningful and consequential. When business and politics enter into the social world and seek to impose theirselves and to refabricate traditional patterns, I think this is a point where one has to come to a stop.
Now, I have to reread Gertrude von le Fort’s 1934 book comprised of 3 essays: ‘The Eternal Woman – The Woman in Time – Timeless Woman’.
The destruction of a woman’s unique being and beingness, is part-and-parcel of a general revolutionary tendency which will, I suggest, in the end, destroy most everything loved and valued.
I feel like Cassandra in the Agamemnon trilogy! I see, I speak, and there is no one left to hear!