“the nerd defense”

Ethics Quiz: Ammon Bundy’s Cowboy Boots

/ Jack Marshall / 36 Comments
Ammon Bundy. Nice look...that last name is a problem, though.

Ammon Bundy. Nice look…the jury should like it. That last name might be a problem, though.

Jury selection is was about to begin last week  in the trial of Ammon Bundy (Son of Cliven, no relation to Ted) and his fellow defendants who led an armed stand-off on federal lands in Oregon.  First, however, the judge in the case had to rule on Bundy’s lawyer’s motion demanding that the defendants, who are in custody, can wear neckties, belts and boots at trial as requested.

The U.S. Marshal’s Service  emailed  Bundy and the rest to alert them that certain  items of apparel wouldn’t be permitted at their trial: “Ties, Bows, Belts, Handkerchiefs, Cuff Links, Steel toe boots/shoes, Shoe laces, Shirt tie down straps, Safety pins, Shirt pocket pen protectors.” When U.S. District Judge Anna J. Brown Tuesday afternoon asked Barbara Alfono, the deputy U.S marshal in charge of the Bundy trial, about the requirement, she explained that security concerns were the source of the order. Those accessories could be used as weapons against deputy marshals or the defendants themselves, she said. As for the boots, they would interfere with the shackles that are placed around the defendants ankles as they are transported to and from the courthouse. (The shackles will be removed, because prior courts have ruled that they are prejudicial, making defendants look dangerous to the jury.)

J. Morgan Philpot,  Ammon Bundy’s marvelously named lawyer, argued that since his client is innocent until proven guilty, he should be allowed to wear the civilian clothes that he chooses.  “These men are cowboys,” Philpot wrote  in his motion, “and given that the jury will be assessing their authenticity and credibility, they should be able to present themselves to the jury in that manner.” He continued:

“We must consider, when he does so, how will he look? And what are the spot assumptions and impressions will the jury have about him when they see him in the kind of white socks and loafers he was wearing today, with his beltless trousers, and dressed in a formal suit without a tie,Just as significantly, how will the lack of belt, tie, or other apparel compare to others in the courtroom, as he and the other detained defendants are the only ones who will appear that way.”

The judge ruled against him.

Your Ethics Alarms Ethics Quiz of the Day:

Is it ethical for the system to prevent accused cowboys from looking like cowboys during their trial?

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Here’s What Was REALLY Wrong With Bill Cosby’s Sweater…

/ Jack Marshall / 17 Comments

Cosby sweater

Washington Post fashion editor Robin Givhan set off a lively controversy by alleging that the “grandpa” sweater Bill Cosby wore to court was a calculated and manipulative ploy to gain public sympathy. “Bill Cosby’s perp walk was striking for its overwhelming lack of grace and power. It was an exploitation of our assumptions of fragile old age,” she wrote.  “It was the explicit manipulation of a studiously unattractive sweater.”

Was it? Lawyers often micro-manage a clients’ appearance in court; when it amounts to deception, I have written that it is unethical. Cosby’s attire seems hardly deceptive; after all, he is famous for his sweaters. There is even a pop song called Cosby’s Sweater. Ann Althouse agrees with Givhan that it was “a con,” but suggests that it’s an ethical con because “everybody does it.”

I don’t understand either Givhan’s logic or Althouse’s, and if Cosby’s lawyers talked him into this costume, they did him no favors. Cosby’s best armor against the verdict of public opinion is that Cliff Huxtable would never do the horrible things he’s being accused of.  There is no better, more benign, more appealing image of Bill Cosby than “TV Bill Cosby” as we fondly remember him. In court, he looked like a dirty old man, which is what he apparently is. Cliff Huxtable wouldn’t be caught dead wearing a sweater like that to court. (Bill would have also been well-advised to shave.) Continue reading →

Ethics Musings On The Guy With “MURDER” Tattooed On His Neck….

/ Jack Marshall / 21 Comments

 

Hey! Cool tattoo, dude! Just don't get caught actually murdering someo...oh. Bummer.

Hey! Cool tattoo, dude! Just don’t get caught actually murdering someo…oh. Bummer.

Jeffrey Chapman, who is soon to stand trial for first degree murder in Great Bend, Kansas, wants to remove the giant tattoo that spells out the word  MURDER around his neck, believing that it will prejudice the jury against him.

Ya think?

The judge will allow Chapman to have the tattoo removed before the trial, it appears. There is precedent for this: in Florida, in 2010, a neo-Nazi charged with hate crimes was permitted to have the hate-related tattoos on his face and neck, including a swastika, covered up by a professional make-up artist. It was paid for by the state, naturally.

Observations:

  • I suppose this is the necessary and fair decision by the judge. Lawyer-pundit Alan Dershowitz made some interesting points regarding the Florida case, however, suggesting that the swastika and other tattoos were an extension of tattooed defendant John Allan Ditullio’s character, and covering them could be construed as misleading the jury. “He is alleged to have attacked people on the basis of sex orientation and race. The court has the chance to make its rulings based on whether the tattoos are relevant to the case,” Dershowitz said. “It depends on what the prosecution is trying to prove. If they are saying his Nazi ideology drove him, then you could argue that seeing the tattoos is relevant.” Dershowitz noted that his tattoos were obviously the way he chooses to present himself publicly. “It’s not like the swastika was on his rear end,” he said.

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The “Too Handsome To Rape” Defense

/ Jack Marshall / 31 Comments
Sharper, Mathis, Ted Bundy.

Sharper, Mathis, Ted Bundy.

For whatever reason, there have been a lot of attacks on the legal profession lately—and some from within the legal profession—because of so-called “disgusting” and “frivolous” arguments by lawyers who are zealously representing their clients. These range from outrage over the so-called “affluenza” defense (which, it apparently does no good to point out, was explicitly rejected by the judge in that case), to the law suit against the Glendale, California memorial to women forced into sexual slavery by the Japanese in World War II, to the argument that Red Sox broadcaster Jerry Remy was complicit in his son’s allegedly murdering his girlfriend because Remy hired a lawyer who mounted a vigorous defense in the son’s earlier domestic abuse arrests.

Lawyers are ethically obligated to advance whatever non-frivolous arguments and theories that are most likely to achieve their clients’ objectives, whether it is avoiding prison or rationalizing the crimes of the Japanese army. That is their job and societal function, and it is essential to our avoiding a jack-boot system where any of us could be thrown in jail by popular opinion or government edict. The laws are there to be used by every citizen, even when the citizen’s objectives are unethical, or when the citizen is a cur.

Our rights are all protected well by this principle, and it’s high time we stopped bitching about it.

Undeterred by this, however, yet another defense attorney is being savaged in the news media and blogosphere, as well as by women’s rights advocates, for making an argument in defense of his client that they find offensive. In Georgia, Darriuos Mathis and his legal team are making the argument, among their efforts to show that the evidence against him is not sufficiently conclusive, that Mathis is too attractive--fit, handsome, sexy– to have to resort to kidnapping and raping a 24-year-old woman two years ago, which is what he charged with.

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Is George Zimmerman Trying A Homer Simpson Strategy?

/ Jack Marshall / 27 Comments
The accused, pre-donuts.

The accused, pre-donuts.

Based on his appearance at today’s preliminary hearings for his murder trial, George Zimmerman has packed on a few pounds since he was arrested and charged with second degree murder in the death of Trayvon Martin. Might this be an intentional strategy dictated by his lawyer? If so, it would be reminiscent of the memorable episode of “The Simpsons” in which Homer decided to give himself the benefit of the Americans With Disabilities Act by eating himself into muu-muus. But would it be ethical?

The theory, I presume, is that the less threatening and mobile Zimmerman looks, the more plausible it will seem to the jury that he was not the aggressor in his fatal tussle with Martin, who, we heard today, the defense will try to portray as a violence-prone thug. This kind of maneuver exploits a structural defect in the jury system, aggravated by the now ridiculously extended justice process. Jurors can only think of a defendant and sometimes a victim as they look in the courtroom, when it is what they were like when the alleged crime occurred that matters. Years ago in the District of Columbia, a wily attorney defending a child molester who swore that his 13-year old victim had credibly presented herself as 18 managed to delay the trial for three years. It was enough time for the victim to get morphed by puberty hard, and she appeared on the stand not as the thin, immature child she was when she was sexually assaulted, but as an obviously sexually-mature young woman speaking in a attractively husky voice, whom one courtroom reporter described as looking at least 25. Her attacker was acquitted. This is considered excellent lawyering. (The prosecutor, who allowed the girl to wear a tight, low-cut dress and full make-up, was, in contrast, an idiot.) Continue reading →

Undercutting the “Nerd Defense”

/ Jack Marshall / 17 Comments

“A killer? Him? Come on, look at him. He couldn’t hurt a fly!”

More than a year ago, Ethics Alarms discussed the ethics of a current criminal defense tactic employed by lawyers with clients accused of violent crimes, putting them in nerdy glasses:

“It’s not a guarantee, but  the Daily News report says that criminal defense lawyers “swear by the gimmick, believing the right spectacles can make a sinister-looking murder suspect seem like a perfect gentleman.” “Glasses soften their appearance so that they don’t look capable of committing a violent crime,” veteran lawyer Harvey Slovis told the paper.”I’ve tried cases where there’s been a tremendous amount of evidence, but my client wore glasses, dressed well and got acquitted.” Cordero, who was represented by Slovis, wore bifocals throughout his trial, but threw them away the moment he was free.”

I’ve quizzed lawyers about the ethics of this tactic in my CLE classes, and they nearly unanimously agree that the tactic crosses no ethical lines that can be drawn with appropriate precision. I’m not so sure. I think it goes beyond merely giving your axe-murderer a shave and a haircut so he doesn’t look like an axe murderer, and edges into the realm of intentional deception. Apparently some courts may agree. Continue reading →