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.”
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.