ABA Model Rule 3.5

The Case Of The Snoozing Prosecutor

/ Jack Marshall / 5 Comments

cigar ash

There is a true story about Clarence Darrow putting a wire in his cigar and puffing it during an opponents closing argument to the jury. The idea was to create an absurdly long ash, so the jury would become distracted and watched to see when it would fall on his suit, when they were supposed to be paying attention to the summation. I’ve used that story in ethics seminars, asking attendees if this was unethical, and if so, was there a rule that could be used to punish a lawyer who did it.

Now comes word that the Maine Supreme Judicial Court ruled  on Tuesday that there was no prejudicial error in the trial of Buddy Robinson, who was convicted in the death of his downstairs neighbor, despite the fact that the prosecutor, then Assistant Attorney General Andrew Benson, pretended to fall asleep during his Robinson’s lawyer’s closing. Robinson had appealed the verdict because of this and other questionable conduct by the prosecutor. Benson admitted that he sometimes pretended to be asleep in trials to annoy defense attorneys. In its opinion denying the appeal, the court concluded that the trial judge did not err in denying Robinson’s motion for a new trial, given the strength of the prosecution case.

It also said that the fake sleep bit “was sophomoric, unprofessional and a poor reflection on the prosecutor’s office.”

It’s also an ethics violation, a couple of ways. Maine’s Rules… Continue reading →

A Shocking Legal Ethics Violation In Utah

/ Jack Marshall / 20 Comments
So...would you like to revise your testimony about the harmless electric shock, Professor?

“So…would you like to revise your testimony about the ‘harmless electric shock,’ Professor?”

(The title is an uncreative and obvious pun, but on the other hand, how often do I have a chance to make it?)

I always advise lawyers that whenever they have a sudden inspiration that involves a trial tactic that they have never heard of anyone else trying, they need to stop and examine whether there are ethical issues involved. Here is a good example of why that’s a good idea.

Electricity expert Athanasios Meliopoulos, while testifying to dispute the claim of Utah dairy farmers who had sued a power company alleging that current from its plant harmed cattle grazing nearby,  said under oath that 1.5 volts could not be detected by a human being.

Don Howarth, an experienced Los Angeles litigator who represented the farmers, decided to undermine the expert’s testimony on cross-examination by giving Meliopoulos  a joke shop pen that was rigged to deliver an electric shock. Howarth told the witness that the retractable pen contained a 1.5-volt AAA battery and challenged him to click it and “tell the jury whether you feel it or not.” What he did not tell the witness, or the jury, or the judge, was that in addition to the AAA battery, the pen also contained a transformer that boosted the battery voltage to up to 750 volts, enough to deliver “a harmless powerful shock,” according to the pen’s packaging.

Meliopoulos, a Georgia Tech professor, pushed the ball-point pen’s button  and was indeed shocked enough to cause  his body to jerk and force him to drop the pen.

How unethical is this? The judge, in fining the lawyer $3000 and issuing other sanctions, listed the breaches: Continue reading →

Legal Ethics Quiz: The Bean Bag Tossing Defense Lawyer

/ Jack Marshall / 21 Comments
" I swear, you can do this in court. I saw it on "Ally McBeal"...

” I swear, you can do this in court. I saw it on “Ally McBeal”…

Holy crap! Here is a courtroom stunt you don’t see everyday…or ever.

The dramatic bribery trial of Rhode Island defense lawyer Donna Uhlmann and co-defendant Jamaal Dublin took a hard left turn into “Boston Legal” territory and beyond with the, well, creative closing argument of Dublin’s lawyer, Christopher T. Millea. It was so creative, he was nearly held in contempt of court.

“You see, all of this has to do with the throwing of feces,” said Millea, cleverly reminding the jury of the bizarre conduct of a key state witness who once threw his own excrement at a prison guard.  “The state wants to throw as much against the wall to see what sticks, just like Michael Drepaul throwing his feces …”

With that introduction, Millea took two bean bags out of a box he had placed in front of the jury, and threw them at the courtroom door. Then he retrieved the turd stand-ins and placed them in another box near the door, and placed that box next to the one in front of the jury, which, it was later discovered, read “Reasonable doubt,” though only the jury could see the words. The first box was labelled, “State’s case.” Continue reading →

Ethics and the Case of the “Large-Breasted Woman”

/ Jack Marshall / 14 Comments

 

Now SHE'S what you call a distraction...

Illinois attorney Thomas W. Gooch III became the object of great hilarity in legal circles this week when he reacted to what he felt was an unethical courtroom tactic by his opposing counsel in a lawsuit by filing this motion in limine:

 Defendant’s counsel is anecdotally familiar with the tactics and theatrics of Plaintiff’s counsel . . . . Such behavior includes having a large breasted woman sit next to him at counsel’s table during the course of the trial. There is no evidence whatsoever that this woman has any legal training whatsoever, and the sole purpose of her presence at Plaintiff’s Counsel’s table is to draw the attention of the jury away from the relevant proceedings before this court, obviously prejudicing the Defendant’s in this or any other cause. Until it is shown that this woman has any sort of legal background, she should be required to sit in the gallery with the rest of the spectators and be barred from sitting at counsel’s table during the course of this trial.

Not surprisingly, the motion failed, and predictably, Gooch has become the latest villain in the gender wars, reducing a competent legal professional (according to attorney Dmitry Feofanov’s answer to the complaint) to the size of her bra cup and denigrating women generally. Continue reading →