“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.