I’m giving an ethics seminar for a group of government lawyers this morning. I think I’ll tell them about Bill Fallon.
Bill Fallon (1886-1927) was a very successful New York criminal defense attorney, and a contemporary of Clarence Darrow. He was called “The Great Mouthpiece,” because he represented some of New York’s leading pimps, narcotics dealers, embezzlers, swindlers and gamblers. One famous client was Arnold Roth, who was the architect of the 1919 Black Sox scandal, bribing eight Chicago White Sox stars to throw the World Series. Another was Nicky Arnstein, the gambler husband of Fanny Brice. That was Omar Shariff playing Nicky in “Funny Girl.”
Fallon often bribed his juries, and got away with it: the one time he was caught and indicted, a jury found him non guilty. He probably bribed that jury, too. Clarence Darrow was proud of the fact that he represented over a hundred men and women facing the death penalty and none were ever executed. Fallon could top that: he represented over 120 homicide defendants, all of them guilty as hell, and not one was convicted.
Dashiell Hammett referred to Fallon in his novel, “Red Harvest,”, when he wrote,
He’s the guy that the joke was wrote about: ‘Is he a criminal lawyer?’ “Yes, very.'”
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“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 →
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 →