I’m calling it a run-down because I’m run down….
1. More “phantom document” ethics. Last moth I wrote about the ethically dubious “phantom document” tactic, in which a lawyer alludes to a document he or she either does not have, or suggests a document has content it does not in order to trick a witness into recanting testimony.
I just saw the Eighties made-for-TV movie “Perry Mason Returns” that rebooted the classic series (and not so well) for an aging Raymond Burr. The great defense lawyer comes out of retirement to defend old legal assistant Della Street (Barbara Hale), who has been accused of murder. In the trial’s climax, Perry’s investigator Paul Drake, Jr. (played by Hale’s real-life son, actor William Katt of “The Greatest American Hero” fame) bursts into the courtroom and hands Perry a document, which he then holds as he asks the witness (Richard Anderson, playing a different role than he played in the original series) he was in the midst of cross-examining, “Would you like to reconsider your testimony? Would you like me to read a sworn statement from Bobby Lynch, in which he says you hired him to kill Arthur Gordon?”
The witness confesses that he planned the murder that Della was being tried for, and framed her. Della goes free! Perry then tells Della that there was no sworn statement. “I didn’t say I had a sworn statement,” he chuckles, “I just asked if he wanted me to read one.”
Unethical, and I think sanctionable. It is unethical for a lawyer to allude to evidence that doesn’t exist, or “facts” that can’t be proven. Holding an irrelevant document while referring to a “sworn statement” is a false representation to everyone in the courtroom, not just the witness.
2. Yeah, it’s just moral luck, but it’s nice moral luck. Matteo Lambert, a 9-year-old from Vienna, Virginia, helped organize a group that is running a 5K race in Grant Park in Chicago this weekend to help raise money for children with cancer. He was brought by the Chicago Cubs dugout before yesterday’s Wrigley Field game against the San Diego Padres to deliver a letter to “Mr. Rizzo” asking Cubs slugger Anthony Rizzo to “help kids be kids!” Lambert suggested that Rizzo hit a “moonshot” to help the cause.
So Rizzo crushed a 366 foot grand slam over the left field wall in the third inning of the Cubs’ 6-5 win, his first home run in more than a month.
These periodic heart-warming episodes always remind me of this SCTV skit:
3. Let’s see what the double standard is this time…As we have discussed, Labor Secretary Alexander Acosta was forced to resign because of his role in a much-criticized plea deal with billionaire sexual predator Jeffrey Epstein. And…what this? It is now being recalled that Presidential hopeful Kamala Harris negotiated an absurdly lenient plea deal with former San Diego Mayor Bob Filner, a serial sexual harasser, allowing him to escape jail time and avoid registering as a sex offender.
In 2013, 18 women accused Filner, a two-decade Democratic congressman-turned-San Diego mayor, of sexual harassment and misconduct. Some said he put them in “Filner headlocks.”
Harris’ office drew considerable criticism in 2013 for allowing Filner to plead guilty to state charges of false imprisonment and battery against three Jane Does, with the penalty being three months of house arrest, three years’ probation, and partial loss of his mayoral pension. Filner could have faced up to five years in prison. Now, when the #MeToo movement recognizes no mitigating circumstances (except when Democrats are concerned, especially “Democrats of Color”), how will Acosta’s prosecutorial conduct be distinguished from Harris’s? In both cases there were some legitimate reasons to avoid a trial. In both cases there was an appearance of impropriety: Harris, then California’s Democratic Attorney General, gave a sweetheart deal to a predator who was a prominent Democrat.
Perhaps the most damning is her gall, attacking Acosta for giving Epstein deal a “simple, very light pat on the hand,” as Harris put it last week on The View. She also said,
“I personally prosecuted child sexual assault cases. And they are some of the most difficult cases to prosecute. The thing I found so troubling, disheartening and really unbelievable was the way that Acosta has described the challenge … It’s like saying it’s really difficult to make an omelet … Well, then get out of the kitchen!”
Oddly, she didn’t boast about the Filner case. Nobody on ABC’s The View questioned her. about it either.