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Saturday, November 25, 2006

Blame the defendant? The lawyer? The mom? The judge?

I once cross-examined a man at trial who I later found out was on major sedatives and other meds to control his violent paranoid schizophrenia. I've occasionally seen witnesses who gave such unexpectedly stupid answers in court that I wondered if they were on drugs. But I've never had a client drop a bag of marijuana while standing up from counsel's table in court.

Obviously, the defendant — a newly-convicted robber — is to blame. But one wonders if he's the only one:

To make matters worse, his mother, a defense lawyer, was by his side at the time — representing him.


According to the [recorded record], Gwyn Hoerauf, his mother, said jail was not the answer to her [19-year-old] son's problems.

"I'm going to say it in a very crass way, and I hope he forgives me," she said.

"He is brain-damaged, your honor. I don't mean he's just a defendant who does dumb stuff. This is a boy with an IQ in triple digits. His brain is glued together with Silly Putty. He can't think his way out of a paper bag, but he can do physics."

I'll leave it to others to critique the parenting. As a lawyer, though, I'll say that no parent has any business defending his or her child in a felony criminal jury trial — ever. You certainly ought to help him or her find competent counsel for any important pretrial hearings, plea negotiations, and the trial. And immediately after the arrest, you might bail your kid out if you can. But if bail is contested, even that may be inappropriate. 

Every lawyer has an ethical obligation to refuse employment in matters in which his or her judgment is likely to be compromised. Rule 2.01 of the Texas Disciplinary Rules of Professional Conduct (for which I'm certain there's a reasonably close counterpart in Maryland, where this event took place) provides that "[i]n advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice." That independent judgment is going to be virtually impossible for any parent to deliver.

Likewise, Rule 1.06 on conflicts of interest provides that "a lawyer shall not represent a person if the representation of that person ... reasonably appears to be or become adversely limited ... by the lawyer's ... own interests." Comment 4 to that Rule provides:

Loyalty to a client is impaired not only by the representation of opposing parties ... but also in any situation when a lawyer may not be able to consider, recommend or carry out an appropriate course of action for one client because of the lawyer’s own interests or responsibilities to others. The conflict in effect forecloses alternatives that would otherwise be available to the client.... A potential possible conflict does not itself necessarily preclude the representation. The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

And while normally potential conflicts of this sort may be waivable after full disclosure to, and informed consent from, the client, Comment 7 states that "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client’s consent."

Let's take Lawyer-Mom's statements to the Court about her son's mental state at face value (giving her ethical credit for fulfilling her duties of candor to the tribunal). Any disinterested lawyer would immediately conclude that the parenting of a 19-year-old defendant might well be called into question in this case. Even if there's no basis for an insanity or other diminished responsibility defense, certainly competent counsel would want to consider whether to put on evidence for sentencing purposes about the defendant's upbringing and home life — in which Lawyer-Mom here is not only potentially a person onto whom competent counsel may want to try to shift some blame, but also a potential exculpatory witness! And she's the last person in the world who ought to be trying to decide which!

This is just wrong in so many ways that I wonder whether the presiding trial judge conducted an examination of the defendant to ensure whether his "consent" to the potential conflicts was in fact fully informed and voluntary. Were I the trial judge, I would have spent a solid fifteen minutes pointing out all the problems to this young man, and I would have made it clear to him that if he couldn't afford alternate counsel, I'd appoint counsel for him. I'd basically make him say he understood that only a crazy man would accept his mom as his lawyer — and if he said that, then I'd refer him for a psych exam to test his competency to assist in his own defense!

I'd also put some very, very hard questions to Lawyer-Mom — and not sympathetically, but just about as harshly as I could. I'd probably appoint stand-by counsel from outside the family to sit there at the table with them if she insisted on continuing. Any time Lawyer-Mom did anything even remotely questionable, I'd run the jury out of the room and again examine the defendant to see if he'd had a change of heart and wanted to switch to the stand-by counsel. (The "brain dead" speech would certainly be one such occasion.)

Finally, while there are, of course, constitutional dimensions to one's right to be represented by counsel of one's choice, I'm pretty sure, even without having researched the issue, that those rights aren't unlimited. And again, were I the trial judge in this situation, I'd probably give serious thought to disqualifying Lawyer-Mom on my own motion. This isn't a situation in which only the kid's interests were compromised. It reflects poorly on the entire justice system.

I'm surprised the WaPo didn't pick up on the ethical aspects of the story, in addition to the "how incredibly, tragically funny!" aspect. I'm certainly not trying to excuse the kid's stupidity. And it's possible that the trial judge did some or all of the things I've suggested here, and that the WaPo reporter simply didn't learn about that, or chose not to include it in the story if he did.

But Lawyer-Mom's role is just simply inexcusable. Her kid certainly wasn't the only one in that courtroom whose conduct was, shall we say, less than exemplary.

Posted by Beldar at 11:40 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Blame the defendant? The lawyer? The mom? The judge? and sent a trackback ping are listed here:


(1) Patterico made the following comment | Nov 25, 2006 2:47:48 PM | Permalink

The second post in two days! I hope I'm seeing a trend, my friend.

(2) Patterico made the following comment | Nov 25, 2006 2:48:33 PM | Permalink

I'm going to send a few more folks over.

(3) Drew made the following comment | Nov 25, 2006 2:58:12 PM | Permalink

Why didn't the WaPo look at this potential/actual conflict-of-interest:
The defense counsel was Female; and, she is a Working Mom!
In their concept of today's world, this was as good as it gets.

(4) DRJ made the following comment | Nov 25, 2006 3:51:08 PM | Permalink

Excellent post. Ethical questions like this arise in the medical profession, too.
Medical textbooks
address the ethical aspects of treating relatives and generally discourage that practice except in emergency or other unusual situations.

(5) DRJ made the following comment | Nov 25, 2006 4:22:40 PM | Permalink

You know you're back when you get spammed and have to ban someone ... so Welcome Back!

(6) lashmun made the following comment | Nov 26, 2006 8:57:18 PM | Permalink

Glad to see you back. I was beginning to think that a disgruntled client may have done you harm.

I always enjoy your blog - even when I don't agree with your point of view.

Welcome back.


(7) Rorschach made the following comment | Nov 26, 2006 10:25:50 PM | Permalink

Beldar, at least the guy has a built-in appeal on the basis of incompetent council, among other things.

(8) DRJ made the following comment | Nov 27, 2006 1:08:46 AM | Permalink

Rorschach may be right. His lawyer mom would probably even try to stipulate to ineffective counsel, but I have no idea what a Maryland appellate court (or the trial court, if it were brought as grounds for a new trial) would do. Sticky wicket, that.

(9) Beldar made the following comment | Nov 27, 2006 2:35:57 AM | Permalink

I wondered about whether a prosecutor might be concerned that this moonshine and hoohah might endanger his conviction by creating ineffective assistance of counsel grounds, and so left a comment over on Patterico's blog asking for his take. He confirmed that he would have indeed been concerned.

(10) Rorschach made the following comment | Nov 27, 2006 7:50:15 AM | Permalink

My point exactly, she (and he) may be be crazy, but crazy like a fox. If he managed to get off, wunderbar, if not, built in appeal. What exactly did he have to lose in trying it? I don't think the doobage drop was an accident, I suspect there was an alterior motive. I suspect they waited until it was clear that he was going to hang for it and pulled the stunt.

(11) DRJ made the following comment | Nov 27, 2006 1:45:35 PM | Permalink

"Moonshine and hoohah."

Great phrase. I've never heard it before. Where does it come from?

(12) Beldar made the following comment | Nov 28, 2006 3:50:04 AM | Permalink

Golly, DRJ, I dunno. It's one of those phrases I seem to have known forever, and I have no idea where I first heard it, but I like it too — and it's one of those phrases that is sort of self-defining (especially with a little surrounding context), even when heard for the first time and even if its exact meaning still isn't terribly clear. I tried Googling it, but Google asked me if I really meant "Moonshine and hookah?" Which is also interesting, but not quite the same.

(13) DRJ made the following comment | Nov 28, 2006 10:31:36 PM | Permalink

I like both phrases and the longer I roll them around in my mind, the funnier they get.

(14) steve sturm made the following comment | Nov 29, 2006 8:57:10 AM | Permalink

FWIW, the mother wrote into the WaPo today to say that she was there only as his mother and to facilitate communication between her son (who is autistic) and the attorney on the case.

oh, and welcome back. no more leaving.

(15) Beldar made the following comment | Nov 29, 2006 10:01:29 AM | Permalink

Thanks, Steve!

Here's the link. Autism, as I understand it, is sometimes a slippery diagnosis, and doesn't seem entirely consistent with a kid who's out committing (even non-violent) felonies or carrying a bag of pot. But if Lawyer-Mom's right — and even if she's exaggerating or fudging or simply being an advocate — then the reporter who wrote the story ought to have included that claim in the story, and may indeed be a jerk.

And it appears that Lawyer-Mom is contending that she wasn't lead counsel, at least; whether she had entered a formal appearance is less clear (and not denied). If not, that mitigates her conduct considerably.

Regardless, however, she ought not have been speaking directly to the Court on the record on her son's behalf unless and until she was called to the stand and sworn as a witness. And as a criminal defense lawyer in particular, but as any lawyer at all, she absolutely ought to have known better.

(16) CJ made the following comment | Nov 29, 2006 8:53:26 PM | Permalink

Hello Beldar,

The way I read the WashPost story, he has been convicted of at least two violent crimes.

"He pleaded guilty this summer to second-degree assault after an incident in Silver Spring. He was charged with robbery in June after he and some friends were suspected of stealing bikes from a group of younger teenagers near the MARC train station in Germantown."

That sounds like two violent crimes to me, although IANAL and many journalists are poor communicators. BTW, I have a mild case of Asperger syndrome myself and FWIW I think this kid should do some jail time. You need to get his attention, and it's not likely that anything short of jail can cut through the noise. I also know for sure that if someone has a problem with scattered concentration, smoking pot is not going to help collect his thoughts and focus his actions.

As for what should be done with Lawyer-Mom ... that's a job for conscientious legalists like you! May I simply point out that the son has surely inherited many traits from his mother.

(17) Carl Pham made the following comment | Nov 30, 2006 12:44:16 PM | Permalink

I don't think autism is hard to diagnose. But I also think many people are prone to confuse, accidentally or deliberately, poor socialization, antisocial personality disorder or just plain boorishness with autism.

The mother sounds like a flaming narcissist, however. She's highly sensitive to the Post's arrogant amused slander, blames society for all the ills, et cetera, but hasn't time to pay attention to basic mother's work -- you know, like making sure your son is dressed properly for Court (i.e. without a bag of dope in his pocket).

(18) JP made the following comment | Dec 5, 2006 4:07:58 PM | Permalink

The Mother may not be very smart, either. She says he has a "triple digit" IQ, which, by definition, would make him at or above average.

But Again, later she says he does physics but "can't think his way out of a paper bag."

So is he book smart but lack common sense? or Autistic? Or is she just nutty?

Maybe her son was just desperate to get away from her, evene if it means jail.

PS: Oh and welcome back Beldar!

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