Limits on Proper Acceptance of Client’s Story

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By Marvin E. Frankel
[Originally published in NYPRR July 1999]


Among the more horrifying and publicized of recent cases; the guilty plea of Justin Volpe, involving severe injuries to a victim from a bloody assault in a police station, stands out. To the extent that the harsh press treatment of his defense counsel, Marvyn Kornberg, stems from the foul nature of the crime, this is regrettable. Our ethical rules require us to serve unpopular clients and hateful causes — or at least a fair share of them. [See, “How to Deal with the (Truly) Repugnant Client,” NYPRR, July 1998.]

EC 2-26 says:

A lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of a fair share of tendered employment which may be unattractive both to the lawyer and the bar generally.

EC 2-27 applauds:

…distinguished sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of personal feelings, a lawyer should not decline representation because a client or a cause is lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the clients political, economic, social or moral views or activities.

These Ethical Considerations “are aspirational in character” for the bar, as said in the Preamble to the Code of Professional Responsibility. More important, they are needed, as EC 2-26 says, “to make legal services fully available.” It remains meaningful to consider whether the public criticisms of Marvyn Kornberg disturbed these aspirations.

Louima Testimony

According to the testimony of the alleged victim, Abner Louima, on the night of Aug. 8, 1997, he was in a group outside a dance hall expressing anger that a police officer had beaten one of their fellow Haitians. Suddenly, according to Louima, he was assaulted from behind, knocked down, handcuffed with his hands behind his back, and taken to a police station. Along the way, he was hit with a hard object, kicked, and punched by defendant Justin Volpe and other officers. Then, in the most appalling part of his story, while one officer held him down, Volpe took a stick (from a plunger, Louima thought) and rammed it into Louima’s rectum. As an added touch, Louima said, Volpe removed the stick, soiled with feces, and placed it in Louimas mouth. It appears to have been undisputed that Louima suffered possibly life-threatening injuries including a ruptured intestine and bladder. He was eventually carried away from the police station to a hospital, handcuffed, and subjected to major surgery.

Opening his defense to the jury on May 4, 1999, Mr. Kornberg was evidently aware of the essential story Louima would tell, based upon a suit he had brought against the City. Among the key points of his opening, Kornberg said:

• Louima “lied when he claimed that my client placed a stick in his rectum, an object, a plunger in his rectum.” (Tr. 47.)

• [W]e will show you that he lied when he tells us that the object that was placed into his rectum was forcibly and without consent placed into his rectum.” (Tr. 50.)

• “You will hear from a forensic pathologist and you will hear from other medical doctors that the injuries sustained by Mr. Louima are not, I repeat, not consistent with a nonconsensual insertion of an object into his rectum.”

Evidently building on the word “nonconsensual,” Mr. Kornberg added the statement that produced the most heated public outrage. He asked the jury “to consider the fact that in the bathroom [in the police station, frequented by an unknown number of men] there was found traces of Mr. Louima’s feces and…the DNA of another male, and you are going to be shown how somebody else’s DNA can get into another individuals feces.” (Tr. 51.)

Volpe’s Admissions

Twenty-one days after that opening, Mr. Volpe pleaded guilty. Among other things, as against the implication of a homosexual encounter of the victim (a married man with two children), Mr. Volpe admitted:

• That in a viciously “nonconsensual” act, he had “sodomized Mr. Louima by placing a stick in his rectum.” (Tr. 2652.)

• That he had “threatened to kill him if he told anybody.” (Id.)

• That Louima had been handcuffed when Volpe “inserted the stick in his rectum.” (Tr. 2654.)

• That he had then placed the stick, not in, but “in front of his mouth.” (Tr. 2655.)

• That (an admission after some insistence by the Judge) he had done this in order to “humiliate” Louima (Tr. 2660.)

Following his admissions, Volpe volunteered: “Your Honor, if I could just let the record reflect I’m sorry for hurting my family.” (Tr. 2665.)

Substantial Responsibility Issues

It emerges from these events that beyond the merely human indignation against Mr. Kornberg reported in the press, there are substantial questions of professional responsibility. The most basic of these are found in DR 7-106(C)(1):

• In appearing as a lawyer before a tribunal, a lawyer shall not:

1. State or allude to any matter…that will not be supported by admissible evidence.

In the circumstances described, this in turn raises questions as to how far a lawyer must go in seeking the facts from the client; what grounds a lawyer must have for asserting degrading facts about a witness, including an alleged victim; and whether a lawyer may be justified in avoiding truths gleanable from the client.

According to the press, Mr. Kornberg is said to have proceeded on the basis of Volpe’s assurance that he was not guilty as charged. Does this, without more, justify Mr. Kornberg’s pronouncement to the jury that Louima was a liar? Given Mr. Kornberg’s evidently deserved reputation as a skilled cross-examiner, was the inaccurate charge that Louima lied justified unless Volpe’s counsel had tested his story? An array of ethics experts has been teaching that even the President of the United States as a client must be rigorously examined, for his own sake, about his material assertions. (Query, when the question of sentencing is reached, will Volpe have been well served by his initial denials.)

The problem is sharpened by Mr. Kornberg’s regrettable hypothesis about how Louima might have suffered his ravaging injuries to intestine and bladder. Volpe surely knew, as did other officers, that before the police brutalized him and dragged him to the station house, Louima was reasonably intact. The bizarre suggestion that “consensual” anal intercourse with another male had caused the tear in Louima’s internal organs — and that these could not have been caused by a nonconsensual ramrod — left at least a challenging question of chronology to be answered. Even a modest cross-examiner would have wanted to know where Louima could have found time for the sexual escapade Mr. Kornberg posited, between the time he was knocked down and the sojourn in the police station to which he was taken immediately thereafter. And if the “consensual” injuries, requiring emergency hospitalization, had preceded the encounter with Volpe, how was Louima standing there for Volpe to assault him?

In itself the “consensual” versus “nonconsensual” proposition — especially that only the consensual insertion of a male organ rather than a stick explained Louima’s injuries — would have called for intense questioning of the physicians Mr. Kornberg promised as expected witnesses. Even to a layperson, the position sounds weird.

It is possible, in sum, that the nonprofessional criticisms of Mr. Kornberg may find professional support in the restrictions of DR 7-106(C)(1).

Avoiding Facts

At the same time, note should be taken of the dubious devices by which defense lawyers shield themselves from knowledge that would inhibit the spinning of imaginative theories to avoid adverse jury findings. Among the least defensible of these is the claim, publicly voiced from time to time by well known lawyers, that the trick is to avoid asking the client for his or her knowledge of the facts. [See, e.g., Stephen Gillers, Regulation of Lawyers 390 (4th ed. 1995).] This technique, verging close to patent fraud, is obviously not the ticket for the client fairly presumed to be innocent. From that client one wants every scrap of possibly pertinent knowledge. When the device is used, rather, as a supposedly efficacious way for the lawyer to avoid sharing guilty knowledge, it serves in itself as evidence of the lawyers guilt under the familiar principle commonly charged to juries in criminal cases: that a “defendants knowledge of a particular fact may be inferred from a deliberate or intentional ignorance or deliberate or intentional blindness to the existence of that fact.” [Devitt et al., Federal Jury Practice and Instructions §17.09, p. 669 (1992).]

Mr. Kornberg is quoted in the press as having said, “The presumption of innocence commences with the payment of the retainer.” [N.Y. Times, 6/13/1999, p. 47, at p. 54.] One can hope he may have been misquoted. Nobody should have to pay a retainer to buy the Constitutional presumption of innocence. If, however, as does not seem improbable, Mr. Kornberg means that anything goes in attempting to win an acquittal for the client, the position is as wrong as the quoted Constitutional distortion.

Some 90 percent, give or take a few, of criminal defendants plead guilty. Most of them, let’s face it, do not manage “the payment of [a] retainer.” At least many of them have to be pressed by counsel to acknowledge their guilt, probably for their own good, as well as for the good of the community. The ill repute of our profession is not enhanced when a privileged few who can pay a retainer can purchase the unfettered imagination of lawyers to conceal the truth from jurors. The Code of Professional Responsibility supplies only limited or nugatory sanctions against such performances. The outcry in Louima’s case is worth heeding as a signal that we should do better.

Marvin E. Frankel served as U.S. District Judge, Southern District of New York, from 1965 to 1978. He was formerly Professor of Law at Columbia Law and Assistant to the US Solicitor General. He is now a partner in Kramer Levin Naftalis & Frankel LLP.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

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