Sunday, November 4, 2007

The Limits Of Zealous Advocacy

In what it called a "cautionary tale for practitioners" the Oklahoma Court of Criminal Appeals upheld a finding of direct contempt against a defense attorney in connection with his conduct in a murder trial. After the defendant's conviction had been reversed on appeal, the attorney sought to introduce exculpatory evidence at the retrial after the trial judge had ruled the evidence "clearly"inadmissible. After the judge had ruled, the lawyer said he would let the jury know notwithstanding the adverse ruling. The judge said to bring his toothbrush and checkbook if he intended to violate the ruling.

The lawyer began to discuss the inadmissible evidence toward the end of his opening statement. The judge interrupted by saying "Hello." The judge ordered a mistrial. The matter was assigned to a different judge, who found the lawyer in direct contempt and ordered the lawyer to pay costs exceeding $13,000. The court sustained the contempt but not the costs: that the trial judge's "order may have been wrong is simply not relevant." The majority found that costs were not properly imposed as punishment because the defendant later pleaded guilty and no new jury was ever assembled; a dissent would nonetheless find the imposition of costs proper. (Mike Frisch)

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