The Line Between Aggressive and Unethical Advocacy: The Doctor Is In

A hearing held in a Michigan Grievance Commission matter (link here) raises an interesting question about the line between aggressive cross-examination/advocacy and an ethical violation.

The proceeding involves the Respondent's motion to dismiss the charges rather than a hearing on the merits.

The charges involve a prosecutor's cross-examination of a defense expert in a murder prosecution that led the Michigan Court of Appeals to reverse the conviction on grounds of prosecutorial misconduct

Cross-examination is a powerful legal engine for discovering the truth. But when it repeatedly transgresses well established boundaries, an improper cross-examination denies a defendant a fair trial. The prosecutor’s interrogation of one of the experts in this case, Dr. Meghan Rowland, crossed the line on multiple occasions. The prosecutor likened Dr. Rowland to a cartoon character, accused her of writing her report in crayon, baselessly accused her of withholding evidence, misrepresented her testimony, and badgered her relentlessly. Counsel’s performance denied Evans a fair trial.

Findings

The...excerpts illustrating the prosecutor’s infringements of his ethical and legal obligations fall into several categories. First, the prosecutor repeatedly and gratuitously disparaged Dr. Rowland’s qualifications and her intelligence. No evidence supported the prosecutor’s snide and derisive comments maligning Dr. Rowland’s education and her professional competence. Second, the prosecutor inaccurately characterized Dr. Rowland’s opinions in a sarcastic, mocking, and inaccurate manner. This tactic was designed to generate the jury’s scorn rather than to shed light on the issues presented by the evidence. Third, the prosecutor repeatedly accused Dr. Rowland in a badgering fashion of deliberately ignoring or withholding evidence from the jury and accused her of being unable to distinguish “right from wrong.” No evidence underlay these attacks.

One comment drew particular focus

You have the PhD. You have all the training. You have done hundreds of these things. I mean, explain it to me, Lucy, I don’t get it.

The court explained

Calling Dr. Rowland “Lucy” was not an accident or a slip of the tongue. As most adults know, Lucy was a character in the Peanuts comic strip who, in a well-known series of comics, was portrayed as a bumbling and unqualified psychiatrist dispensing useless advice from a lemonade booth... Referring to Dr. Rowland as “Lucy” was misconduct, both prosecutorial and ethical.

And referenced the pertinent rule

Aside from offering his own opinions and his own “values,” the prosecutor accused Dr. Rowland of “play[ing] semantics” and offered to “write it out in Crayon” so she would better understand his views. The impropriety of this performance requires little elaboration. The gratuitous insults hurled at Dr. Rowland by the prosecutor dripped with hostility, ridicule, and aggression. They violated not only the prosecutor’s obligations as a prosecutor, but as an attorney. See MRPC 4.4 (“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person period.”).

In the disciplinary hearing, there was a suggestion that the reference may have been to Lucy Ricardo.

The panel asked whether the fact that there was a single denied objection was relevant. 

They also queried on the relevance of the fact that the court of appeals did not refer the matter to disciplinary authorities.

Finally, questions were raised about the significance of the fact that the witness handled herself with aplomb rather than wilt under the questioning. (Mike Frisch)