Excerpts from: UCLA School of Law Public Law & Legal Theory Research Paper Series Research Paper No. 06-44 and
Cardozo Law School Legal Studies Research Paper Series Research Paper No. 181
The Conscience of a Lawyer is a spellbinding murder mystery and courtroom drama set in London in 1840. An English nobleman, Lord William Russell, was murdered, his throat cut while he slept. The police concluded that it was an inside job. Lord Russell’s maid, Sarah Mancer awoke to discover disorder in the house. She roused the cook, Mary Hannell, and the valet-butler, Benjamin Courvoisier. They soon discovered Lord Russell’s dead body and summoned the police.The front door was unlocked. A good deal of property was missing. Needless to say, the idea that a wealthy man could be murdered in his bed by the servants was terrifying to the upper classes. As a result, the case generated intense public and media interest.
Suspicion soon fell on Courvoisier. He was originally Swiss and had worked in London for a number of years. There was strong but not overwhelming circumstantial evidence against him. The most important evidence was that some but not all of the missing property was found inside the walls of the butler’s pantry to which he had primary access. In addition, Courvoisier had said to the other servants, referring to his boss, “Old Billy is a rum chap, and if I had his money, I would not remain long in England.” On the other hand, the police could not locate the murder weapon or some of the missing silver plate. No sign of blood appeared on any of Courvoisier’s clothing. Courvoisier stoutly maintained his innocence.
He was represented at his trial in the Old Bailey by Charles Phillips, the leading criminal defense lawyer in England. Phillips, then aged 53, was Irish and had a well deserved reputation for emotionalism and flamboyance. He was opposed by John Adolphus. According to contemporary practice, Adolphus was selected and paid by the victim’s family to prosecute the case. There was bad blood between the two lawyers, because Adolphus felt that Phillips had usurped his place as the premiere criminal lawyer of his time. He wrote to a colleague: “There was a time when you and I, Curwood, made a decent income out of this court until that Irish blackguard [Phillips], with his plausible brogue and slimy manner, deluded people into trusting him.” Amazingly to us, it was only in 1836, four years before Courvoisier, that the Prisoners’ Counsel Bill authorized defense lawyers to address the jury on behalf of defendants in English felony cases. Before that, the judge was supposed to represent the defendant! The relative unfamiliarity of the criminal defense function may explain the enormous ethical controversy stirred up by Phillips’ conduct in Courvoisier.
On the first day of trial, Phillips aggressively cross-examined prosecution witness Sarah Mancer, Lord Russell’s maid, attacking every detail of her testimony and exposing many minor differences between her testimony and previous versions of the story. It is said that Mancer never recovered from the trauma of the trial and died in an insane asylum. Phillips was equally effective in cross-examining Constable Baldwin, who denied knowing of the £400 reward being offered in the case—which everybody in London had heard about. At that point, a contemporary observer reported, the betting in the robing room was 3-1 that Courvoisier would be acquitted.
On the second day of trial, everything changed. The prosecution brought in a surprise witness, a device dear to the hearts of novelists and screenwriters. Charlotte Piolaine and her husband owned a hotel in Leicester Square. She had previously employed Courvoisier (knowing him only as Jean). Six weeks before the murder, he appeared at her hotel and reminded her who he was. A week or so later, he stopped by again and asked her to hold a package for him. Piolaine claimed that she had heard nothing about the murder or the trial until the previous day. At that point, comments by a relative caused her to associate the man who had asked her to hold the package with the defendant Courvoisier. In the presence of a solicitor, she opened the package and found the missing silver plate. And she identified Courvoisier as the man she had known as Jean.
Phillips was entirely unprepared for this witness, but his impromptu crossexamination did considerable damage to her reputation. He suggested her testimony was false; how could she not have known about the case until the previous day given that people in London spoke of little else? He also suggested that her hotel, like the others in Leiceister Square, was a gambling den. In addition, Phillips scored points in crossexamining policemen who had bungled the investigation. They claimed they had discovered bloody gloves in Courvoisier’s trunk—but only after the trunk had already been torn apart several times and nothing suspicious had been found. Rather obviously, the police had planted the incriminating items in hopes of collecting the reward.
Under existing law, Courvoisier was not allowed to testify, so the defense case consisted of a few character witnesses. Phillips delivered a highly emotional 3-hour closing argument. He contended that the evidence against his client failed to meet the reasonable doubt standard. He fiercely attacked the testimony of Piolaine and the police and, while denying that he was casting blame on Mancer, he managed to suggest that she might well have had something to do with it. Mellinkoff quotes his lengthy address almost in full, but we provide a few snippets here:
Over every portion of this case doubt and darkness rest, and you will come to a conclusion against this man at the peril of your souls. . . Gentlemen, mine has been a painful and awful task, but still more awful is your responsibility. To violate the living temple which the lord hath made, to quench the fire that his breath [hath] given, is an awful and tremendous responsibility. And the word ‘guilty’ once pronounced, let me remind you, is irrevocable. Speak not that word lightly. Speak it not on suspicion, however strong, upon moral conviction, however apparently well grounded—upon inference, upon doubt—nor upon anything but a clear irresistible bright noonday certain of the truth of what is alleged. . . I tell you that if you pronounce the word lightly, its memory will never die within you. It will accompany you in your walks. It will follow you in your solitary retirements like a shadow. It will haunt you in your sleep and hover round your bed. It will take the shape of an accusing spirit, and confront and condemn you before the judgment seat of your God. So beware what you do.
The force of these remarks was considerably diluted by the three and one-half hour summary of Lord Chief Justice Tindal. In England, the judge is allowed to sum up the evidence. Tindal’s summary, though fair, left little doubt that he thought Courvoisier was guilty. In any event, Piolaine’s evidence could not be overcome. The jury found Courvoisier guilty, his appeal failed, and shortly thereafter he was hanged. For Phillips the case had just begun. An ethical scandal engulfed him and it haunted him to his grave. Courvoisier had maintained his innocence until the second day of trial when he saw Piolaine walk into the courtroom. He then confessed his guilt to Phillips, but insisted that Phillips continue to represent him. Phillips had no idea how to handle the situation.
At first he considered withdrawal, but his co-counsel talked him out of it. Then, at co-counsel’s suggestion, Phillips consulted Baron Parke (who was assisting Lord Chief
Justice Tindal), thus breaching his duty of confidentiality. Parke told him to “use all fair arguments arising on the evidence.” In other words, go and do your job. Thus Phillips carried on, harshly cross-examining both Piolaine (whose direct examination he knew had been truthful) and the policemen who evidently had planted incriminating evidence in hopes of getting the reward (but Phillips knew they had only incriminated a guilty man).
Soon word got out that Courvoisier had confessed to Phillips during the trial. There was an immense outcry against Phillips in the press. Not only laymen but many lawyers condemned him, although he had a few defenders. The consensus was that had acted wrongly in aggressively defending Courvoisier, and his reputation never recovered.
Lest you think Courvoisier is interesting but irrelevant legal history, the current story of San Diego lawyer Steven Feldman and client David Westerfield is sobering. A seven-year old girl named Danielle van Dam was abducted from her home in the middle of the night. Substantial circumstantial evidence pointed to a neighbor, David Westerfield, who was charged with the crime. However, the police had not found Danielle’s body. During plea bargaining, the prosecutor offered not to seek the death penalty if Feldman would disclose the location of the body. Since Feldman had that information, he must have known that Westerfield was the killer.
Before a deal could be struck, volunteers found the body and the plea bargain collapsed. The case went to trial and Feldman conducted an all-out defense. In his opening statement, Feldman said: “We have doubts. We have doubts as to the cause of death. We have doubts as to the identity of Danielle van Dam’s killer. We have doubts as to who left her where…she remained. And we have doubts as to who took her.”
In cross-examining Danielle’s parents, Feldman brought out the fact that they had a “swinging lifestyle” and held sex parties in their home, suggesting that a guest at one of these parties might have killed the girl. Obviously, this was highly damaging to the parents’ reputation, yet Feldman knew the inference he was seeking to raise was false. He also introduced expert testimony from three entomologists who testified concerning the blowflies and maggots on the victim’s body in order to fix the time of her death. If the experts were right about the time of death, Westerfield could not have been the killer because he was under police surveillance at that time. However, Feldman knew that the testimony was wrong (even though the experts believed it was correct). Westerfield was convicted and is presently on death row.
The sequel to the trial mirrored Courvoisier: there was a thunderous outcry in the local press, with an editorial in the San Diego Union Tribune claiming that Feldman was as despised as Westerfield. Conservative TV commentator Bill O’Reilly ran numerous segments about the case on Fox News and filed an ethics complaint with the San Diego and the California State Bar Associations. Feldman and his family were shunned.
According to Feldman, the San Diego Bar Association’s phone answering machine said “if you want information about the San Diego Bar Association, press 1; if you want to complain about Steven Feldman, press 2.” In fact, Feldman’s actions fell within the accepted conventions for criminal defense and the storm blew over. But the public condemnation to Feldman’s conduct bears an eerie resemblance to the public’s response to the conduct of Charles Phillips in defending Courvoisier 165 years before.
What should Charles Phillips and Steven Feldman have done when they had to defend clients whom they knew beyond any doubt were factually guilty of the crime, but who insisted on a vigorous defense? This ethical issue remains hotly debated to the present day. Defense lawyers often suspect their clients are factually guilty (most of them are, of course), but they systematically avoid “knowing for sure”.
Even if a lawyer knows his client did it, a person is presumed innocent until they have been proven guilty beyond a reasonable doubt. It is not enough for the police to say he’s guilty, it’s not enough for the prosecutors to say so, it isn’t even enough for the newspapers and television to say so. Saying it is so does not make it so.
The person accused is not guilty until they have pled guilty or the crown has presented sufficient evidence on each element of the offence to prove guilt beyond a reasonable doubt. That is the way our system works. As Rumpole (and every other hack who ever donned a robe) says, it is the “golden thread” that runs through the entire history of English jurisprudence.
If the state can’t prove you guilty, then you are not guilty -even if you did it! I can already hear the cries of “foul”, “unfair”, “terrible”. But consider the alternative! What if, as in some countries, you were presumed guilty as soon as the authorities said you were and it were then up to you to prove your innocence. Does that really sound like a better system? What if you’re the one being accused? What if it were your son or daughter?
Part of the problem, of course, is that in every system there are bound to be anomalies. The larger the system, the more peculiarities there are likely going to be. The law of large number says that sooner or later every possible thing that can happen will happen. Just because the system isn’t one hundred percent reliable and accurate is no reason to scrap it. That’s like throwing out the baby with the bath water.
However, it is the occasional anomalies and glitches that grab all the headlines. Not surprisingly, not many newspapers, television stations or radio stations devote a lot of time or space to the vast majority of cases that proceed exactly as they are supposed to.
No one is particularly interested in crooks admitting their guilt and taking their lumps. That doesn’t sell papers or boost ratings (like for instance stories on Cholmondely). It is only when the system malfunctions that anyone ever takes notice. Most of the time the court system is like a good referee at a sporting event, doing its job properly and not being noticed at all.
In my mind, the bottom line is that Lawyers are charged with one directive: to safeguard the wheels of justice by ensuring that everyone gets their constitutionally mandated right to a fair trial and it is very unfair for anyone to castigate the profession for doing what they are constitutionally mandated to do.