Defending his client of rape charges, Tennessee criminal defense lawyer Steve Farese told the jury during his closing argument,
“People can be very good at lying. Women can be especially good at it because they’re the weaker sex and we … and we want to protect them and not have anybody take advantage of them at least I do.”
Head-exploding fact #1: The jury Ferese was appealing to by emphasizing the inherent dishonest nature of “the weaker sex” was made up of eleven women and three men.
Head-exploding fact #2: The jury still acquitted Ferese’s client.
That doesn’t make his argument ethical. The statement appealing to anti-women bias was a direct ethics violation, a breach of Tennessee Rule of Professional 8.4 (d) forbidding lawyers from engaging in conduct that is prejudicial to the administration of justice, which deliberately appealing to anti-woman bias clearly is. For the future, the episode also raises questions about whether such a closing would breach the new ABA rule 8.4 g, yet to be adopted in Tennessee or any state, which states that it is unethical for a lawyer to
“engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
The ABA notes specify that “This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”
I am certain Ferese’s statement would breach 8.4 (g), not that it isn’t unethical anyway.
I love this story!
Miami defense lawyer’ Stephen Gutierrez shocked onlookers when his pants burst into flames mid-trial as he was addressing the jury. Gutierrez was defending a client accused of intentionally setting his car on fire in South Miami. Yes, it was an arson case. He had just begun his closing argument when smoke started billowing from his pants pocket.
By sheer coincidence I’m sure, the lawyer was arguing that the defendant’s car spontaneously combusted—just like the lawyer’s trousers!— and was not intentionally set on fire. Observers told police that Gutierrez had been fiddling in his pocket right before his pants ignited. He ran out of the courtroom, and the jurors were ushered out as well. After Gutierrez returned unharmed, he told the judge that it wasn’t a staged demonstration gone horribly wrong, but just a coincidence. A faulty battery in his e-cigarette had caused the fire.
In an arson trial.
During closing argument.
Where the defense was “spontaneous combustion.”
Jurors convicted Gutierrez’s client of second-degree arson anyway. Miami-Dade police and prosecutors are now investigating the episode, and Miami-Dade Circuit Judge Michael Hanzman is deciding whether to hold him in contempt of court.
Comments: Continue reading
The late Joe Jamail, role model…
Almost all jurisdictions include in their lawyer ethics rule a catch-all provision, Rule 8.4 (d), that says that is is professional misconduct for a member of the bar to
(d) Engage in conduct that is prejudicial to the administration of justice;
Virginia is one state that omits this prohibition as too vague; D.C.’s version says that a lawyer must not engage in conduct that is seriously prejudicial, whatever that means. My position is that such a rule is necessary, since no set of rules can cover every situation, and lawyers, I have found, are especially creative in finding new ways to be unethical.
Texas Super Lawyer Joe Jamail (who died last December) established the proposition that a lawyer could prejudice the administration of justice by his spectacular incivility in this deposition:
The Delaware Supreme Court condemned Jamail’s conduct as “rude, uncivil and vulgar,” saying that it abused the privilege of appearing in a Delaware proceeding,” and showed “an astonishing lack of professionalism and civility.” (The immortal quote from the video is Jamail telling his adversary counsel that he “could gag a maggot off a meatwagon.” The deposition deteriorated into a Trumpian insult-fest, with Jamail calling the other lawyer “Fat boy” and being called “Mr, Hairpiece” in return.) The court went on to call Jamail’s unprofessional behavior “a lesson for the future—a lesson of conduct not to be tolerated or repeated.”
Following the judicial reprimand, Jamail said, “I’d rather have a nose on my ass than go to Delaware for any reason.”
But even Joe never did this. Continue reading
The other shoe dropped: prosecutors dropped all remaining charges against three Baltimore police officers accused in the arrest and death of Freddie Gray, following the acquittals of three other officers by Circuit Judge Barry G. Williams. He was expected to preside over the remaining trials, and, as the Bible says, the writing was on the wall.
Make no mistake: this result was completely and entirely the result of the incompetent, unethical conduct of State’s Attorney Marilyn Mosby, who vaingloriously announced charges against the officers in the immediate wake of rioting in Baltimore, following the dictates of a mob. She did this without sufficient investigation, evidence or, despite the ethical requirements of her office, probable cause. She had the city of Baltimore agree to a large damages settlement for Gray’s family before any of the officers were tried, prejudicing their cases. She spent millions on the prosecutions, and shattered the lives of all six officers, and yet never made a case that justified any of it.
There are more unethical things that a prosecutor can do, and they certainly do them. Some prosecute individuals they know are innocent, which is a bit worse than prosecuting someone who might be guilty because a mob wants blood. Those unethical prosecutors, however, try to cover their tracks. Not Mosby: she’s proud of being unethical, because its the kind of unethical conduct that African-American activists think promotes justice. Justice is when someone pays with their life or liberty if an African American dies, regardless of law or evidence. That’s the theory, anyway. Continue reading
Mosby in 2015, ruining lives, pandering to the mob, and undermining justice…
The third (of six) indicted Baltimore police officer charged in the death of Freddie Gray was acquitted last week, and how the rest of the trials, if they even occur, will play out is now a foregone conclusion. To be fair, this was a forgone conclusion from that moment that Baltimore City Attorney Marilyn Mosby charged the officers a year ago without sufficient justification beyond her own political ambitions, those of her husband (who is now running for mayor), racial bias and a desire to mollify rioters. Most commentators believed the charges were premature, rushed to avoid civic unrest. To say that is really to say that she allowed a mob to dictate to law enforcement. This was unethical, dangerous and despicable then, and remains so today.
If officer Caesar R. Goodson Jr., who drove the police transport van in which Gray suffered the spinal cord injury that killed him, could not be found guilty of intentionally killing Freddie Gray, nobody can. Says the New York Times,
“His acquittal on seven counts leaves the state without any convictions after three trials, in one of the nation’s most closely watched police misconduct cases — and continues to leave open the question of what, exactly, happened to Mr. Gray inside the van….Judge Barry G. Williams, who presided over the Goodson trial, issued the verdicts to a hushed, packed courtroom. He drew no conclusions about exactly when during the van ride Mr. Gray got hurt, saying there were several “equally plausible scenarios.” And he rejected the state’s contention that the officer had given Mr. Gray an intentional “rough ride” and knowingly endangered him by failing to buckle him into the van or provide medical help.”
The prosecutor isn’t supposed to ruin the lives and careers of presumptively innocent law enforcement officials to try to find out what happened to Freddie Gray. The prosecutor is supposed to investigate until sufficient evidence tells her that a crime was committed, and the she has enough of that evidence to get a legitimate conviction. The three trials have shown that such evidence either doesn’t exist, or was never found. No, we don’t know what killed Freddie Gray, and that’s called “reasonable doubt.” Continue reading
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