Unfair (48 page)

Back in 1963, in the case:
Brady v. Maryland, 373 U.S. 83, 87 (1963);
Connick
, 131 S. Ct. at 1370 (Ginsburg, J., dissenting); Maurice Possley and Ken Armstrong, “The Flip Side of a Fair Trial,”
Chicago Tribune
, January 11, 1999,
http://articles.chicagotribune.com/​1999-01-11/news​/9905150172_1_prosecutors-courtroom-recalls
.

Failing to do so:
Connick
, 131 S. Ct. at 1370 (Ginsburg, J., dissenting).

Riehlmann suggested that Deegan reveal:
Connick
, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

But when Deegan elected:
Connick
, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

For five more years:
Connick
, 131 S. Ct. at 1374 (Ginsburg, J., dissenting).

Each time it was delayed:
Thompson, “The Prosecution Rests.”

His seventh and final date:
Thompson, “The Prosecution Rests.”

In a last-ditch effort:
Connick
, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

It was less than a month:
Bandes, “The Lone Miscreant,” 715.

And then there it was:
Connick
, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

B, it said:
Connick
, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

Thompson had type O blood:
Connick
, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

He was innocent:
Connick
, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

Thompson was finally able:
Bandes, “The Lone Miscreant,” 722–23.

At the new trial:
Connick
, 131 S. Ct. at 1357 n. 2.

It took the jurors only:
Connick
, 131 S. Ct. at 1376 (Ginsburg, J., dissenting).

After more than eighteen years:
Connick
, 131 S. Ct. at 1376 (Ginsburg, J., dissenting). During his time in prison, Thompson spent fourteen years on death row.
Connick
, 131 S. Ct. 1350 at 1370 (Ginsburg, J., dissenting).

Prosecutors are mostly upstanding:
Connick
, 131 S. Ct. at 1366.

Prosecutors know their:
Connick
, 131 S. Ct. at 1362–63, 1365–66.

And in the Court's view:
Connick
, 131 S. Ct. at 1362–63, 1366.

After being released:
Keenan, “The Myth of Prosecutorial Accountability,” 207.

But when the case made it:
Thompson, “The Prosecution Rests.”

In the majority's opinion:
Connick
, 131 S. Ct. at 1362–63, 1366.

Similarly, Justice Scalia, in a concurrence:
Connick
, 131 S. Ct. at 1368–69 (Scalia, J., concurring).

Deegan, in this framing:
Connick
, 131 S. Ct. at 1368 (Scalia, J., concurring).

If you had a large barrel:
Connick
, 131 S. Ct. at 1366 (Scalia, J., concurring). When news of the Supreme Court's dismissal of Thompson's case reached the current district attorney in New Orleans, Leon A. Cannizzaro, Jr., he offered a similar assessment that this was nothing more than “the intentional, unethical and illegal acts of a rogue prosecutor.” Adam Liptak, “$14 Million Jury Award to Ex-Inmate Is Dismissed,”
New York Times
, March 29, 2011, accessed April 21, 2014,
http://www.nytimes.com/​2011/03​/30/us/30scotus.html?_r=0
; “Orleans Parish District Attorney,” accessed April 21, 2014,
http://orleansda.com/​the-d-a/
.

Yes, we should expect:
The Nazis at Nuremberg had lawyers. “Nuremberg Trials,”
History.com
, accessed April 21, 2014,
http://www.history.com/​topics/world-war-ii​/nuremberg-trials
.
So did McVeigh and Madoff. “McVeigh's Former Lawyer Speaks Out,” CBS News, June 11, 2001,
http://www.cbsnews.com/​news/mcveighs-former​-lawyer-speaks-out/
; “Ira Sorkin, Lawyer for Bernie Madoff, Leaves Dickstein Shapiro,”
JD Journal
, November 3, 2010,
http://www.jdjournal.com/​2010/11/03/ira-sorkin-lawyer-for-bernie-madoff-leaves-dickstein-shapiro/
. One of O.J.'s attorneys, Harvard Law professor Alan Dershowitz has said that he would represent “a worthless son of a bitch on their way to hell.” Walter Stern, “Dershowitz Defends His Defense of Bad People,”
Yale Herald
, February 5, 1999,
http://www.yaleherald.com/​archive/xxvii​/1999.02.05/news/dersg.html
. And these jackals seem more than happy to use any trick or lie in the book to pull the wool over the eyes of the judge, jury, and public.

A slight variation on this common conception of the lawyer is that it is not so much that he is
immoral
than that he is
amoral
. And this amorality leads lawyers to willingly act dishonestly when it is in their interests to do so (i.e., when the benefits outweigh the costs). Lawyers look at (1) what is to be gained and (2) the likelihood of being caught and do a simple calculation.

These notions of the character of the attorney are ever-present in our culture. If you look at depictions of lawyers in films, television series, and popular fiction, you will generally find two stock characters. The first is the good lawyer: the selfless hero, true to his principles, defending the disenfranchised and the downtrodden and fighting for justice. Carrie Menkel-Meadow, “Can They Do That? Legal Ethics in Popular Culture,” 48
UCLA Law Review
1305, 1315 (2001). Atticus Finch, Clarence Darrow, and Perry Mason are all in this mold. Menkel-Meadow, “Can They Do That?” 1315. The second is the bad lawyer: the greedy and unethical predator, manipulative, back-stabbing, and vicious. Michael Asimow, “Embodiment of Evil:
Law Firms in the Movies,” 48
UCLA Law Review
1339, 1341 (2001). Here, we have law firm associate Fletcher Reed, Jim Carrey's character in
Liar Liar
, who revels in his mendacity, until his son casts a spell that compels him to speak only the truth, seriously endangering his job at the firm where lying is a way of life. Asimow, “Embodiment of Evil,” 1356–57. Or we have managing partner John Milton, played by Al Pacino in
The Devil's Advocate
who is actually (spoiler alert) Satan. Asimow, “Embodiment of Evil,” 1357–58. John Grisham's books and the resultant slew of movie adaptations are filled with these despicable characters ready to break the rules whenever they have a chance. Asimow, “Embodiment of Evil,” 1352–54. Dishonesty seems to infect even the more sympathetic of Grisham's lawyers, including Rudy—the fresh-faced attorney (played by a young, fresh-faced Matt Damon) going up against an evil insurance company—in
The Rainmaker
who explains, “each time you try a case, you step over the line. You do it enough times and you forget where the line is.” Asimow, “Embodiment of Evil,” 1354.

Grisham's oeuvre embodies what some researchers believe has been a shift toward more negative depictions of lawyers, particularly in the last three or four decades, which may be tied to a loss of faith in lawyers generally during this time period. Asimow, “Embodiment of Evil,” 1371. The dishonest lawyer is now
all
lawyers: a stock character in late-night stand-up routines,
New Yorker
cartoons, and, if my life has been any guidance, the jokes of older family friends upon hearing that you are in law school or have been admitted to the bar.

“How does an attorney sleep? First he lies on one side, then he lies on the other.” “Lawyer Joke Collection,” last modified October 31, 2010,
http://www.iciclesoftware.com/​LawJokes/IcicleLawJokes.html
.

“How many lawyers does it take to screw in a lightbulb? Three. One to climb the ladder. One to shake it. And one to sue the ladder company.” “Lawyer Joke Collection.”

Today, when I tell people I'm a lawyer, I expect about half the time, I'll get a groan and good-natured cut down. And unsurprisingly, in polls measuring confidence in public institutions, law firms rank at the bottom. Harris Interactive, “Confidence in Congress Stays at Lowest Point In Almost Fifty Years,” May 21, 2012,
http://www.harrisinteractive.com/​NewsRoom/HarrisPolls/tabid/447​/ctl/ReadCustom%20Default/mid/1508/ArticleId/1068/Default.aspx
. In 2012, only 12 percent of the public expressed that they had a great deal of confidence in the leadership of law firms. Harris Interactive, “Confidence in Congress.”

When Deegan failed to turn:
Lithwick, “Cruel but Not Unusual.”

At this very moment:
Lauren Indvik, “U.S. Internet Piracy Is on the Decline,”
USA Today
, March 25, 2011,
http://content.usatoday.com/​communities/technologylive/post/2011​/03/us-internet-piracy-is-on-the-decline/1#.UISdzlGzmCI
; Recording Industry Association of America, “Student FAQ,” accessed April 21, 2014,
http://www.riaa.com/​toolsforparents.php?content​_selector=resources-for-students
; Stephen E. Siwek, “The True Cost of Sound Recording Piracy to the U.S. Economy,” August 21, 2007,
http://www.ipi.org/​ipi_issues/detail/the-true​-cost-of-sound-recording-piracy-to-the-us-economy
. According to a recent estimate by the Association of Certified Fraud Examiners, unethical actions cost businesses in the United States about 7 percent of their annual revenues—a mindboggling $1 trillion hit to our economy. Francesca Gino et al., “Unable to Resist Temptation: How Self-Control Depletion Promotes Unethical Behavior,”
Organizational Behavior and Human Decision Processes
115 (2011): 191–92.

Cheating by students is rampant:
“A Cheating Crisis in America's Schools,” ABC News, April 29, 2012,
http://abcnews.go.com/​Primetime/story?id=132376&page=1
; Richard Pérez-Peña,
“Studies Find More Students Cheating, With High Achievers No Exception,”
New York Times
, September 7, 2012,
http://www.nytimes.com/​2012/09/08/education​/studies-show-more-students-cheat-even-high-achievers.html
; Amy Novotney, “Beat the Cheat,”
Monitor on Psychology
42 (2011): 54,
http://www.apa.org/​monitor/2011/06​/cheat.aspx
. An analysis of 14,000 undergraduates found that two-thirds admitted to cheating on various tests and assignments. Novotney, “Beat the Cheat,” 54.

Graduate students cheat, too:
Researchers conducted a survey of 5,331 students at thirty-two graduate schools. Donald L. McCabe, Kenneth D. Butterfield, and Linda Klebe Treviño, “Academic Dishonesty in Graduate Business Programs: Prevalence, Causes, and Proposed Action,”
Academy of Management Learning and Education
5 (2006): 299; Lucia Graves, “Which Types of Students Cheat Most?,”
U.S. News and World Report
, October 3, 2008,
http://www.usnews.com/​education/articles​/2008/10/03/which-types-of-students-cheat-most?s_cid=related-links:TOP
. It is possible that the lower percentage for law students may partially reflect the fact that law school exams are often essay exams that may be more difficult to cheat on. That said, there is no evidence to suggest that law students are somehow more ethically challenged than their peers in other disciplines.

What's more, top students appear:
Pérez-Peña, “Studies Find More Students Cheating.”

In recent years, significant cheating:
Pérez-Peña, “Studies Find More Students Cheating.”

If dishonesty doesn't come down to:
Dan Ariely,
The (Honest) Truth About Dishonesty
(New York: Harper Collins, 2012), 4, 14.

Making it less likely that:
Ariely,
The (Honest) Truth About Dishonesty
, 20–21.

Indeed, when the researchers increased:
Ariely,
The (Honest) Truth About Dishonesty
, 19–20.

Lots and lots of people:
The empirical research backs up the data from the real world on this point. Nina Mazar, O. Amir, and Dan Ariely, “The Dishonesty of Honest People: A Theory of Self-Concept Maintenance,”
Journal of Marketing Research
45 (2008): 642.

In one study documenting this:
Nina Mazar and Dan Ariely, “Dishonesty in Everyday Life and Its Policy Implications,”
Journal of Public Policy and Marketing
25, vol. 1 (2006): 7.

And sure enough, a very large:
Mazar and Ariely, “Dishonesty in Everyday Life,” 7.

But each person cheated by:
Mazar and Ariely, “Dishonesty in Everyday Life,” 7.

According to researchers, that mechanism:
Ariely,
The (Honest) Truth About Dishonesty
, 26–27.

We are each strongly motivated:
Lisa L. Shu, Francesca Gino, and Max H. Bazerman, “Dishonest Deeds, Clear Conscience: When Cheating Leads to Moral Diengagement and Motivated Forgetting,”
Personality and Social Psychology Bulletin
37 (2001): 331.

We want to believe that:
Shu, Gino, Bazerman, “Dishonest Deeds, Clear Conscience,” 331.

The more an instance of cheating:
Christopher J. Bryan, Gabrielle S. Adams, and Benoît Monin, “When Cheating Would Make You a Cheater: Implicating the Self Prevents Unethical Behavior,”
Journal of Experimental Psychology: General
142, no. 4 (2013): 1, doi: 10.1037/a0030655.