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Q: What to Do If the Client Is Too Obviously a Liar?

| 5 Comments
A:  Keep him off the stand.  Which was almost certainly the prudent, if woebegotten, decision today from Jerry Sandusky's lawyer, as recounted here.

That said, this was one of the most pathetic performances by the defense I have seen.  The prosecution's case probably was unbeatable, but if it was to be beaten, the only way to do it was to put Sandusky on the stand and hope he could lie his way to an acquittal, or at least a hung jury.   Simply to put his wife and a few old friends and colleagues on the stand to say that he was Mr. Nicey and they never saw him do anything "inappropriate"  was about as lame as you can get.  Yes, thanks very much, I think we all knew beforehand that pedophiles generally don't conduct their business in front of their wives.

The only possible reason to have gone to trial was to fulfill the routine, bravado defense promise, usually made at the time of arrest, that we shouldn't "rush to judgment" until "all the facts are known" and the client has "had a chance to give his side of the story in the proper setting."

Right.  Only there has been no rush, all the facts are on the table, and, when the defendant had a chance to "give his side of the story in the proper setting," he decided to pick the lint off his suit instead.

5 Comments

Once upon a time, in some states, we could tell the jury that they could consider the defendant's failure to testify. Then came Griffin v. California, 380 U.S. 609 (1965).

Juries still can and do consider that. We just can't tell them they can.

Kent,

Am I remembering correctly that in England, the prosecution can still comment on the defendant's decision to clam up at trial?

Oh Otis, your headline is a good one, but then you go too far with an unnecessary and unjustified swipe at the defense bar. The reasons to go to trial are:

1) The client wants to go to trial and it is always the client's decision - the fact that the client is delusional, sick, narcissistic, and sociopathic (as Sandusky appears to be) only makes it more likely that the client will make the wrong choice, and the attorney must abide by it; and

2) There is no plea offer that would make any realistic difference in terms of the final punishment.

Jerry Sandusky was going to spend the rest of his life in prison whether he pled guilty or went to trial. (I am making an assumption here - I don't actually know the terms of any plea offer, but I can't imagine that at his age, and after what he did, they made him an offer with any hope of a life after prison.) When you give the client that news, most of the time they will say, "Let's go to trial. At least there is a chance of an acquittal, a hung jury, a mistrial, or something will go horribly wrong with the government's case that we can't predict. Pleading guilty offers no chance at all." And his attorneys were obligated to give him that news and then follow through with his choice.

With one exception: They were not obligated to subborn perjury, and if they knew he was going to get on the stand and lie intentionally about something the attorney knew to be false, then the attorney has to try and talk the client out of it or move to withdraw from the case.

You don't really believe that, having made the decision to go to trial, his attorneys should have told him, "Your only chance is to lie your way out of this!" No. They did what they had to, which was to put on a defense, but not put the client in the position of having to lie or admit guilt.

I wonder (without any evidence, but only a hunch) if Sandusky's decision not to testify wasn't motivated by his attorneys threatening to withdraw if he did - because they knew that he was about to lie about something.

Either way, the defense attorney doesn't decide whether or not to go to trial. It is up to the client. Blaming Sandusky's attorneys for this fiasco was unfair, and talking him out of testifying might have been the only ethical thing to do.

Interesting question. I do not know the answer.

"You don't really believe that, having made the decision to go to trial, his attorneys should have told him, 'Your only chance is to lie your way out of this!'"

Nope. But they could have told him "Your only chance is to take the stand and win over the jury." This has the advantage of being correct, and of avoiding any direct entreaty to lie.

"Either way, the defense attorney doesn't decide whether or not to go to trial. It is up to the client. Blaming Sandusky's attorneys for this fiasco was unfair, and talking him out of testifying might have been the only ethical thing to do."

Discussing "ethics" in this context is a surreal undertaking. No normal person would say it's "ethical" to try to put an active pedophile back on the street, but that is exactly the mission that, under our profession's version of ethics, defense counsel are not merely encouraged, but required, to do.

Given this hall-of-mirrors version of "ethics," one can take the position, as you seem to, that Sandusky's lawyer was wihtin bounds is assiduously cultivating agnosticism about his client. Through that prism, but only through that prism, could I see your position that the attorney was not responsible for "this fiasco."

The real fiasco this case exposes is not, in my view, the dilemma posed by one particularly dreadful client who has to decide whether to take the stand. The fiasco is a code of professional ethics that wants to achieve, and foolishly thinks it can achieve, an accommodation between (a) doing everything you can to spring a client, even if you, not to mention the rest of the world, know he's both guilty and dangerous, and (b) telling the truth and accepting its consequences.

No such accommodation is possible. It can't be done. Defense lawyers know this; indeed, it's one of the first things they learn. Given that knowledge, which Sandusky's lawyer certainly had, I really don't want to hear that we're being "unfair" in blaming him for this "fiasco." When you willingly enter a line of work that's a nest of moral contradictions to begin with, you have no standing to complain when others notice that a fiasco is exactly what you've bought yourself.

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