Did A Defendant’s Lawyer In The Arbery Trial “Cross A Line”?

Nothing thrills the soul of this ethicist more than a terrific legal ethics controversy leaping off the page in his morning newspaper on a Saturday morning. Better still, it involved, not the Kyle Rittenhouse trial but that other trial, the one really involving racist vigilantes—the trial of the three white men who shot black jogger Ahmaud Arbery as they attempted to make a “citizen’s arrest.”

Kevin Gough, the lawyer who represents William Bryan, one of the three men accused of murdering Arbery, asked Judge Timothy R. Walmsley to ban “high-profile members of the African American community” from the Brunswick, Georgia courtroom. The lawyer argued that the presence of the Rev. Al Sharpton at the trial last week could be “intimidating” to jurors. “We don’t want any more Black pastors coming in here,” Gough said.

The New York Times this morning headlined its story in the print edition “Cantankerous Lawyer At Arbery Trial Crossed Over A Line, Critics Say.” (The online edition’s version is bit more restrained: “Lawyer for Man Accused of Killing Ahmaud Arbery Draws Scrutiny.”) Of course, all lawyers for defendants in high-profile cases draw scrutiny. Fake news!) Interestingly but hardly surprisingly, the Times print headline is misleading. What “critics” say Gough crossed a line? Well, that would be Al Sharpton and another black pastor. The word “critics” implies objective observors who are disinterested parties. But that’s the Times these days. Sad, really.

Then the Times spends the rest of the piece, 21 paragraphs worth, telling readers what a loose cannon Gough is. Does the article ever bother to explain the legal, ethical and factual justifications for Gough’s request? Not at all. That’s not just sad, that’s journalism malpractice. Incompetence or deliberate disinformation? It’s Hanlon’s Razor time!

Gough, I will stipulate, might have made his protest a bit more diplomatically. However, in his non-apology apology later, he accurately explained why he had nothing to apologize for. After an obligatory nod to the strategically outraged, apologizing to “anyone who might have inadvertently been offended,” the lawyer added: “I have nothing against Al Sharpton. But I don’t represent Al Sharpton. Not today, anyway. In this trial, I represent Roddie Bryan, and my duty is to ensure that Mr. Bryan receives a fair trial.”

Bravo. Couldn’t have said it better myself.

Naturally Al, being a shameless demagogue, was shocked–shocked!—that anyone would find his presence at a race-charged trial anything but benign. “I’ve been through a lot of trials over the decades,” Sharpton said in an interview with TMZ. “I’ve never had a lawyer ask that I not be able to come to court.”

Huh. Why would this lawyer do such a thing, I wonder? Do you think it might have anything to do with this, Al? Or this? Or this, Al?

Even more disingenuous than Sharpston was the other black pastor—excuse me, “critic”—quoted. “It says something that has been long part of the racist mind-set, that Blackness equals intimidation,” said the Rev. Dr. William J. Barber II.

Riiiight: the reason Gough wants professional African-American community “mostly peaceful protest” organizers not sitting in the courtroom silently reminding jurors of the death and destruction in their community that might await a “not guilty verdict” is because the racist lawyer finds all blacks intimidating.

That statement virtually proves Gough’s point.

After the George Floyd verdict in Minneapolis was tainted by overt threats of violence if the police officer wasn’t convicted, after Black Lives Matter launched riot after riot across America based on often manufactured claims of racism in the justice system, and in the same week in which Black Lives Matter leader Hawk Newsome promised “riots,” “fire” and “bloodshed” if Mayor-elect Eric Adams follows through with his promise to bring back plainclothes anti-crime cops to battle New York’s surge in violent crimes, Gough would have violated his duty of zealous representation had he NOT asked for Sharpton et al. to be banned.

Using spectators to influence juries,witnesses and even judges is a venerable tactic that goes back to Clarence Darrow (who once handed out buttons with messages for the jury) and before. Having Sharpton in the trial of defendants compared (not unfairly) in the media to lynch mobs reminds me of the scene in “Godfather II,” when the Corleones bring the brother of a witness about to incriminate Michael into the Congressional hearing as a silent and effective threat.

Gough knew he would be called a racist for making his objection, but he was doing his job ethically and courageously. He crossed no line.

He held it.

18 thoughts on “Did A Defendant’s Lawyer In The Arbery Trial “Cross A Line”?

  1. I think your take is interesting, and it really drives me crazy that I can’t get the same answer from everyone on this issue. I know my legal ethics prof would have been all over this guy and probably claim he violated some ethics rule somewhere (though she is really liberal).

  2. Take it away, Ben Crump:

    An attorney for Ahmaud Arbery’s family has vowed to “bring 100” Black pastors to the court where three white men are on trial for his murder after one of the defence attorneys said he didn’t want “any more Black pastors coming in here”.

    Prominent civil rights attorney Ben Crump, who is representing the family of the Black jogger, said it “is not illegal” for Black pastors to come to support the Arbery family and promised to bring more religious leaders of colour to the courtroom in protest.


    Speaking of legal ethics, who said it was “illegal,” Ben?

  3. Al Sharpton is looking as antique and fragile as Joe Biden. Why do so many of these people need to be dragged off the stage feet first? (And yes, I’m looking at you, Albert Pujols.)

    • OK, I’ll bite — I didn’t think Pujols embarrassed himself during the playoff, and it was kind of a thrill (for me) to see him come up to bat. He doesn’t appear to have had a bad season with the Dodgers, although his tenure with the Angels was never truly great, as opposed to what he did for St. Louis.

      He’s never been on a team that I particularly liked, but one has to acknowledge his accomplishments, just like you do for, say, Mike Trout. I have never understood how the Angels could have such talent and yet mesh into a team that excels in mediocrity.

      No idea if he’ll get picked up for next year, although I think I heard that he wants to play. It seems doubtful he’d be able to get to 700 homers, and he’s already over 2000 RBIs and 3000 hits.

      He’s not Satchel Paige — someday soon he’s going to have to hang up his spikes, but he’s had a great career.

      • He’s had a great career, of course, but emphasis on had, past tense. Now he’s a chunky, over weight, over aged pinch hitter. Step away, Albert. Preserve your dignity. You were the machine. Now you’re just a pretty quick pair of hands and wrists.

      • See the EA post on Chris Davis of the O’s, who finally quit.

        Pujols and the Tigers’ fading superstar Miguel Cabrera are a matched set. Both are already Hall of Famers, just lacking the final vote. Cabrera will make 64 million dollars in the next two years just by showing up. Last season, he had a negative WAR, meaning that a minor leaguer in his place would have made the Tigers better. Would you give up $64 million? Well, if you had already made 335 million..

        For Pujols, the numbers are very similar: he also had a negative WAR, and he has made 344 million so far. Unlike Miguel, he isn’t signed.

        • Well, maybe the idiot “baseball men” in senior management who entered into these idiot deals are the ones who should be embarrassed. Maybe it’s too much to expect the players not to take the money. But it’s sure painful to watch.

          • I can’t believe it isn’t painful for them. Where is the pride? Brooks Robinson quit mid-season, saying, in essence, “I stink.” Mike Schmidt did the same. David Ortiz had one of the greatest final season any player has ever had, and could have leveraged that into at least two more guaranteed contract of 20 million or so each. He just said, “Time to quit, man.” He didn’t want to wait until he embarrassed himself.

            I don’t think its the money. It’s just that these guys love playing, and there’s nothing else they can do or want to do. It’s like the sad “Law and Order” episode where Net Beatty played a judge who was sliding into dementia, with his clerk covering for him. Confronted by the ADA and told that it was time to leave the bench, the judge, clearly a nice guy, just said, “And do what?”

  4. He didn’t say famous or celebrity pastors. He didn’t say, oh famous people when the jury should have their attention on the proceedings. He said Black pastors and that is telling, not merely undiplomatic.

    Since his client is basically accused of lynching… Bad move.

  5. Gough knew he would be called a racist for making his objection, but he was doing his job ethically and courageously. He crossed no line.

    He held it.

    Wow, powerful stuff.

    What do you suppose his prospects are as an attorney if he somehow manages to obtain a “Not Guilty” verdict?

    But even without that, with Sharpton et. al. now fully engaged, who could possibly hire this guy in the future? We have seen this exact same tactic applied to those defending Trump and his interests; “Nice law firm you have there. It would be a shame if something happened to it.”

    And where the race-baiting industry goes, the Twitter mob will surely follow…

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