Defense Articles

Criminal defense attorney Michael G. Johnson has developed a reputation at the 26th and California courthouse as something of a publicity hound.

On Friday — with the media in attendance — Johnson appeared in bond court charged with conspiring to bring marijuana into the Cook County Jail for an inmate and possession of cocaine.

Johnson, 58, was arrested Wednesday after allegedly accepting a package of marijuana and $350 from an undercover Cook County sheriff’s police officer outside the jail’s Division 9, Cook County assistant state’s attorney David Williams said in court.

Investigators also searched Johnson’s car and found 0.2 grams of cocaine and a crack pipe, said Williams, of the gangs crime unit.

“He does understand the importance of coming to court,” said Cook County assistant public defender Lee Carson, in urging Judge Thomas Hennelly to order Johnson released on his own recognizance. Noting that Johnson didn’t actually bring drugs into the jail, Hennelly agreed to Carson’s request.

Prosecutors said the investigation began May 29 after Johnson was stopped for trying to bring pornographic snapshots into the jail.

Investigators say they learned Johnson had previously tried to bring marijuana into the jail. Investigators then arranged for Johnson to speak to an inmate, who then allegedly persuaded Johnson to bring drugs inside the jail for money.

The inmate told Johnson that a friend would be contacting him, prosecutors say. The friend turned out be an undercover investigator, who arranged for Wednesday’s drug pickup, prosecutors say.

In recent months, Johnson has been a regular visitor to the 26th and California pressroom, frequently asking reporters to cover his cases.

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) create an obligation for lawyers to disclose to the tribunal when perjured testimony has been or may be introduced.1 The problems of identifying such perjury and the obligations that arise from Model Rule 3.3 are varied and complex.2 Client perjury puts the criminal defense attorney in an unenviable position. It creates a tension between the duty of zealous advocacy and the duty of candor toward the court.3

Dean Monroe Freedman famously presents this problem in terms of the “perjury trilemma.”4 Dean Freedman notes that lawyers face three obligations in performance. The first two stem from the important, almost sacred, attorneyclient relationship. First, there is the duty to investigate a client’s case. As Dean Freedman argues, “in order to give clients the effective assistance of counsel to which they are entitled, lawyers are required to seek out all relevant facts.”5 Second, there is the obligation of zealous client advocacy.6 These are potentially at odds with the third duty, the obligation of lawyers to the court. Lawyers are officers of the court and hold certain responsibilities as such.7 They have specific requirements imposed upon them in such a capacity that cannot be forsaken.8

disclosure of potential client perjury threatens the relationship between an individual accused of a crime and their one and only representative in the criminal justice system. “[T]o convert the defendant’s only champion into yet another member of the state’s legions seems an unnecessary and offensive step.”9 Dean Freedman argues that only two of these three obligations can be met at any given time.10 So which of the three should go? In our adversarial system, the relationship between a criminal defense attorney and her client is special. The first and second obligations are essential for zealous advocacy. 11 The third, however, is essential for lawyers as participants in the judicial system as a whole.12 This creates a complicated and difficult situation for a criminal defendant attorney.

This Note will discuss some of the varied commentary on Model Rule 3.3 in light of the perjury trilemma. It presents the key issues at stake for criminal defense attorneys facing prospective client perjury. Part I will discuss the constitutional questions surrounding the issue of prospective client perjury faced by the criminal defense attorney. The question of whether an attorney has violated the tenets of the Model Rules turns, generally, on two issues: what is “knowingly” and what is “material.” Part II of this Note will discuss the knowledge requirement of Model Rule 3.3, arguing that the ABA and the courts should adopt the most stringent standard for knowledge: that a criminal defense attorney must have proof beyond a reasonable doubt before going to the drastic step of disclosure to the tribunal. This will preserve the constitutional rights of criminal defendants and maintain the sanctity of the attorney-client relationship. Part III will discuss the materiality requirement of Model Rule 3.3, arguing that materiality of a disputed fact is an important consideration in a lawyer’s individual determination of her obligations under Model Rule 3.3. Finally, Part IV will discuss what options are available to attorneys who may find themselves facing potential client perjury. The Model Rules should list the available possibilities, relying on the lawyer’s judgment to determine what is best for the client.

A U.S. district court granted a mistrial and imposed sanctions against a defense attorney who used his opening statement to suggest that plaintiff might have been intoxicated at the time of his automobile accident.

Here, Lasar was injured when the 1986 Ford Ranger pickup truck he was driving rolled several times. He filed a products liability suit against Ford. The judge ruled there was no evidence to establish that plaintiff was intoxicated at the time of the accident, and excluded any evidence of his alcohol consumption from the trial.

In his opening statement, defendant’s lawyer told the jury that plaintiff and friends “spent the day playing pool, visiting some local establishments,” and that plaintiff “made the decision to drive himself home.” Plaintiff moved for a mistrial, arguing that defense counsel was suggesting that plaintiff’s injury was caused by alcohol use.

Granting the motion, the court said that defendant’s lawyer had set forth a series of facts in his statement from which the jury was expected to draw logical inferences. The statement that plaintiff had been playing pool and visiting “establishments” was clearly intended to suggest that he had been drinking at several bars. Had the attorney been referring to churches or restaurants, he would have said as much, the court said.

Similarly, the comment that plaintiff “made the decision to drive himself home” implies that plaintiff made a conscious decision to drive even though he knew he was intoxicated. There is no reason for using the phrase “made the decision” unless defense counsel was attempting to imply that plaintiff made an incorrect decision when he decided to drive home.

In a products liability case, the focus must be on the design of the product, not the conduct of the parties, the court said. Here, defendant not only failed to establish any causal link between the accident and any alcohol use by plaintiff, it admitted that it did not have any evidence that plaintiff was intoxicated. Defendant’s opening comments regarding alcohol show contempt for the court’s orders precluding any mention of alcohol use, the court concluded.

Accordingly, the court granted a mistrial, cited defense counsel for contempt of court, and sanctioned defense counsel and his client.