A Verdict for Fairness – Even for a Lawyer

Last month, April, 2007, another local attorney in Oklahoma City took his case to jury trial. But the case was not the case of his client. This time the District Attorney accused the attorney himself, of a crime. While I’m not condoning what the lawyer did….as he truly should have known better than to get into such a situation….I was glad to see a demonstration of a sense of fair play by our jury system.

In this case, the District Attorney accused the lawyer of trading sex for a reduction of his fee. The lawyer represented a man in a criminal case, and the man’s wife was a prostitute. Allegedly, the lawyer suggested the wife perform a sex act on him as partial payment for his fee.

An audio recording was included in the evidence. The woman was wired by the police to record her conversation with the accused lawyer. The police also claimed that they burst into the lawyer’s office where the woman and the lawyer were, and the accused lawyer stood up, his pants were unzipped and he was tucking in his shirt. The police also claimed the lawyer was captured trying to destroy a tape recorder found on the woman, although the police claimed this was a dummy tape recorder they had planted on her.

Did the police set up the lawyer for this crime? Under state law, for the evidence to constitute “entrapment”, it must be established, ordinarily by the accused, that the accused “had no previous intent or purpose to violate the law” until the police suggested the crime to the accused. It must have been the original idea of the accused. Otherwise, it could be entrapment.

On the other hand, if the defendant was ready and willing to commit the sex crime whenever an opportunity arose, and the police merely offered the opportunity, then entrapment should not be a defense, according to a strict interpretation of the law.

If the jury found that the defendant “had no previous intent or purpose to commit any such sex offense, and further, that he did so only because he was induced or persuaded by some agent of the police, then the government has seduced an innocent person, and the defense of entrapment was a good defense.”

As the trial unfolded, the prosecution offered two more witnesses, two women, in addition to the prostitute witness, to testify that the accused lawyer suggested to them they have sex with the accused lawyer in exchange for a lowering of his fee in his representation of them in their cases. This was important evidence because the jury was shown evidence that the accused lawyer already had a “previous intent or purpose to commit ” an offense like this.

The prosecution presented their evidence, including the police who arrested the accused lawyer with the prostitute, the prostitute herself, and the two witnesses who testified about their encounters with the accused lawyer before this incident.

Then it was the turn of the accused lawyer to testify, but he declined to testify. An accused is allowed to do this, of course, under the Fifth Amendment, and the jury is instructed under the law they are prohibited from considering this, when they are considering a verdict, as evidence of guilt. Nevertheless, individual jurors are sometimes suspicious of an accused who does not testify, and they do sometimes consider an accused guilty for that reason, in spite of the law. So it is a gamble not to testify as a witness in one’s own defense.

At the conclusion of the evidence, the prosecution argued that the accused lawyer instigated this whole thing and he had followed through with the act. He had traded something of value (his legal services for the prostitute’s husband) for the sex act, thus purchasing sex. They argued this was both solicitation (for initiating the transaction) and that it was prostitution for carrying out the sex for money.

The defense attorney admitted the accused had had sex with the witness, arguing the whole thing was the idea of the police to ensnare him.

The prosecution countered this argument by saying that, even if the initial idea was not that of the accused, he certainly got on board with the idea, so he did pay for the sex. Therefore, the prosecution argued, the accused was guilty at least of the money-for-sex prostitution. The prosecution argued it did not matter who initiated this transaction for them to prove the accused did willingly follow through with the illegal act.

Because of the two additional witnesses demonstrating the accused lawyer’s prior intent to commit a sex offense, the defense of “entrapment” was weak. None the less, the defense argued that the police just set him up, regardless of who did what. This argument is not within the strict boundaries of the instructions of the law because either it is or it is not entrapment. And “setting up someone’ is not strictly a defense under the law. Of course, the District Attorney said that the defense did not show “entrapment”, and therefore the jury must convict the accused.

But the jury did not convict the accused lawyer.

You see, it mattered to the jury that the police did set up the accused lawyer. This is what individual jurors said in interviews to the newspaper after the verdict. That is the interesting part. The jury may not have accepted the strict guidelines of law, the strict instructions of law given by the court. Instead the jury decided it was unjust to convict someone in such circumstances. That is why the jury verdict was interesting.

The defense admitted the accused did have sex with the prostitute-witness, and the defense may or may not have been able to prove entrapment under the law. But the jury either disregarded the testimony of the two prior clients of the accused and therefore found entrapment or probably, the jury found more compelling the unfairness of the police setting up the accused so that it did not matter to the jury whether the accused met the legal definition of “entrapment”. The jury brought back a verdict for fairness.

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