How Far Can a Defense Lawyer Push Things? The McLean Case: Lingering Legal Questions

June 19, 1994|By NORRIS P. WEST

If the team of defense lawyers representing City Comptroller Jacqueline F. McLean angered the public with their pull-out-all-the-stops strategy to help their client's case, it probably won't bother them. Not as long as they win.

William H. Murphy Jr. and M. Cristina Gutierrez were victorious when -- aided by five City Council members outside the public's view -- they persuaded Baltimore Circuit Judge Joseph H. H. Kaplan to postpone Mrs. McLean's trial. They also may succeed in their vigorous efforts to remove Judge Elsbeth L. Bothe from the case.

The zeal employed by Mr. Murphy and Ms. Gutierrez is not unusual for the two attorneys who have a reputation for pushing client advocacy to its legal limits. Even in low-profile criminal cases, Mr. Murphy has spent hours in arguments over pretrial motions expected to last minutes, seeking just about every legal remedy available.

This kind of zealous advocacy perpetuates the unpopular public image of criminal lawyers as amoral hired guns who engage in unsavory work by doing whatever it takes to help clients. But as long as they operate within the bounds of the law, zeal is exactly what is required of criminal lawyers in our adversarial legal system.

Thus, the same mechanism that drives the work of defense lawyers is the same thing that drives their image into the ground.

Legal ethicist David Luban says defense lawyers ought to use every maneuver available to them within the law to get the best results for their clients. He argues that defense lawyers get a bad rap from the public.

"The public view is that the most dubious kind of lawyer is the defense lawyer," said Dr. Luban, a University of Maryland Law School professor and research scholar at UM's Institute for Philosophy and Public Policy. "Maybe it's a three-way tie with the personal-injury lawyer and the divorce lawyer. From my point of view, it's just the reverse."

He believes that defense lawyers are the vanguard against potential governmental abuse of prosecutorial power and often the only assistance a defendant has. Usually, the state has more resources than the defense team, he says. (That theory didn't apply in Mrs. McLean's case after the five council members tilted the judicial scale the other way.)

Dr. Luban says people are too critical of the criminal lawyer -- until they need one.

"If you ask people if they would really want to see someone sent to jail without a skilled lawyer, most people would say yes," Dr. Luban said. "Then, if you ask, 'What if it was your own teen-ager? Would you want to see him sent to jail without a good lawyer?' The answer would be different."

However, there are lines that defense lawyers shouldn't cross, he said.

"I don't think they're entitled to lie; I don't think they're entitled to put a witness on the stand who's going to commit perjury; I don't think they ought to try to ruin the reputation of a witness they know is telling the truth," he said.

Mrs. McLean's trial cast a shadow of skepticism over the city's political and judicial systems.

On the scheduled starting date for the trial, her lawyers and Judge Bothe bickered over several issues, including whether Judge Bothe should disqualify herself. The lawyers contended that the judge was insensitive to their client's emotional problems, and they criticized her record. They also spoke frequently to the media, which Mr. Murphy defended as necessary to counter the negative publicity about his client.

After Mrs. McLean attempted suicide and was involuntarily admitted to a hospital, Judge Kaplan and the council members intervened, and the case was postponed.

Mr. Murphy says that he was simply doing his job.

"The client hires us to do our best to win his case within the bounds of the law. We go all out to do that," he said. "I've never understood or respected lawyers who don't."

He says that it is "society" -- including prosecutors and news coverage -- that bends the rules against unpopular defendants by poisoning public opinion and, often, potential jurors and judges. He says that he undertakes a noble task by zealously representing the unpopular.

"Once the rules are bent against unpopular people, they're bent against everyone," he said.

Jeffrey Sawyer, director of Legal and Ethical Studies at the University of Baltimore, agreed that lawyers must be zealous in their adversarial role.

"Taking advantage of every loophole, I have no problem with that whatsoever," Dr. Sawyer said. "But I do have a problem if you do other things which are extra-judicial -- outside of the procedures -- to put pressure on the court."

He cautioned that lawyers who employ extreme tactics can hurt their own reputations and undermine the legitimacy of the legal system.

"Our legal system works the way it does because of integrity," said Dr. Sawyer, who occasionally teaches a course called "Lawyers as Villains."

"If some actions in the courtroom are perceived to be over the edge, a lawyer may be undercutting the system that allows him to do what he does."

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