Oct 29, 2009

Eric Safire's courtroom theatrics

Eric Safire is a San Francisco criminal defense attorney.  Representing murder defendant Charles Heard at a preliminary hearing, Safire asked 7 men that he had asked to come to the hearing to stand up when the prosecutor asked an eyewitness to identify the shooter.  Like Heard, the 7 men who stood up in court are black.  Safire's courtroom theatrics may backfire.  The 7 men were arrested for intimidating a witness, and the DA is looking into the possibility of charging Safire with a crime or at least referring him to the State Bar for possible ethical violations.

While the DA's reaction may be overblown, Safire's tactic seems indefensible.  A few commentators have defended Safire on the gound that he used a creative means to test the eyewitness' ability to make an accurate identification.  But this is silly.  The eyewitness could not reasonably confuse Heard, no doubt seated at counsel table, with 7 men standing in the courtroom gallery.

Safire's misguided  effort reminds me of a more legitimate stunt pulled off by Earl Rogers, one of the greatest courtroom lawyers who ever lived.  Rogers practiced in Los Angeles until his death from alcohol disease in the 1920's.  Representing a man charged with murder, Rogers cross examined a prosecution eyewitness while blocking the witness' view of the defendant.  During the cross examination, the defendant changed places with a man who had been seated in the rear of the courtroom.  Once the switch had been made, Rogers stepped to the side and asked the eyewitness to once again point out the murderer.  Sure enough, the eyewitness pointed to the imposter.  Rogers then had the real defendant to stand up in the back of the courtroom, and asked the judge to dismiss the case.

Perhaps Safire got the idea for his stunt when he watched the pilot episode of the great 1960's TV lawyer show, The Defenders.  The show focused on a father-son lawyer team that grappled with the most controversial issues of its time.  In the pilot episode the father (played by Ralph Bellamy) is persuaded by his son (played by William Shatner) to use a variation of Rogers' trick, and the case against his client is dimissed.

Safire has to learn that even the most creative stunts will backfire if there's no point to them.