Nancy Grace

Over at Simple Justice, an interesting thread concerning Her Shrillness.

One commenter suggested that Grace has engaged in “conduct detrimental to the character and civility of the profession” among other things, which is a professional no-no.

Now, you need to be careful about citing an attorney for professional misconduct.  When I say careful, I don’t mean reticent or diffident, I mean that you have to be precise.  There’s a lot of rough and tumble in lawyering and an understandable reluctance to second guess an attorney in the middle of a fight after the fact.  I don’t think it will do, for example, to say that Nancy Grace’s commentary and conduct is “dishonest”, as Mr. Greenfield suggests in the linked article.  Lawyers sometimes have to make arguments they don’t even really agree with.  Sometimes.  Not often.  That is probably dishonest, but it would hardly be an ethical problem.

That said, Nancy Grace is clearly guilty of conduct detrimental to the character and civility of the profession in my view.  And I’ll be very factually specific:  among the various outcomes in legal proceedings there is a lot of room for lawyers to criticize and dissent.  Appellate decisions come to mind.  But there is one thing at least – there may be other things, too but that question is not presented here – every lawyer has a profound obligation to respect, and that is a jury’s verdict of “not guilty”.  Appellate court decisions in general, and for that matter guilty verdicts, can be attacked and denigrated and ridiculed and whatever.  But the entire profession must, absolutely must, respect a jury’s verdict of not guilty in a criminal case and must encourage others to do likewise.

And I think the Casey Anthony thing illustrates this perfectly.  “Not guilty” verdicts are by definition unpopular, since the entire established order has sought the opposite result.  They are often attended by a lot of bitterness and grumbling.  In the Casey Anthony case the not guilty verdict has been attended by a lot worse.  Jurors have gone into hiding. 

At the very least, all lawyers and judges owe it to the jurors, who are like the system’s guests, to defuse and ameliorate to the extent possible any adverse consequences that result from them rendering an unpopular “not guilty” verdict.  It’s particularly deplorable that any lawyer anywhere would do the opposite – fan the flames of obloquy – not only undermining a lawful result but arguably endangering people who have only done their duty.  A lawyer who does not protect jurors, and by extension the jury system, is a menace.  Far more harmful, qualitatively more harmful than the braying mob, because such a lawyer justifies and encourages the braying mob.  This is antithetical to the lawyer’s duty.  How terrible that after a jury, a group of people that have only the most passing involvement with the justice system, has done its duty it has to confront a mob with lawyers leading it.

I’m not saying lawyers have to agree with a not guilty verdict.  And I’m not saying that the same should apply to a guilty verdict, or any other jury or judge determination in a given case; in fact I think otherwise.  But I am saying that a lawyer openly dissenting from a not guilty verdict might be properly considered misconduct per se. 

I wouldn’t mind some input from other lawyers on this.  Grace kind of disgusts me, but that’s beside the point.

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10 Comments

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10 responses to “Nancy Grace

  1. hcannon

    “A mob led by lawyers attacking a jury” That says it all.

  2. John Kindley

    Although I wholeheartedly agree with the sentiment of this post, I’m enough of a First Amendment absolutist, and so leery of the unjustifiably slippery lines that already exist out there with regard to lawyer speech, that I would probably have to disagree with your suggestion that a “lawyer openly dissenting from a not guilty verdict might be properly considered misconduct per se.” Nancy Grace is going beyond that by impugning the integrity and intelligence and character of the jurors themselves, but there’s that slippery slope again — similar to the slippery slope that supposedly allows lawyers to criticize judicial decisions but forbids them from impugning the integrity or qualifications of the judges making those decisions.
    And I wholeheartedly agree with your distinction between the propriety of criticizing jurors who render guilty verdicts versus criticizing jurors who render not-guilty verdicts. As you point out, the latter verdicts are by almost by definition unpopular. On the other hand, it’s hard to imagine a jury suffering undue public vilification for going along with the State and convicting someone, because in the unlikely event that any prosecution was that unpopular the prosecutor would likely be voted out of office. A jury who does something to someone — by convicting them of a crime — should be subject to public criticism, just as the State should be subject to public criticism for doing harmful things to people. A jury has no moral or legal obligation to convict (even in the face of “proof beyond a reasonable doubt,” and the famously undefined quality of that standard would in any event justify an acquittal in virtually all criminal cases) but does have a moral and legal obligation to acquit in the absence of proof beyond a reasonable doubt. Insofar as the jury has an “obligation” to do anything, its obligation lies in only one direction.
    Nevertheless, as deplorable as I think Nancy Grace and her vilification of the Casey Anthony jurors is, I think the solution has to be more speech rather than professional misconduct charges, because the line between properly criticizing jurors who convict and improperly criticizing jurors who acquit presents too dangerous of a slippery slope.

    • Well, let me suggest a couple of things. First, lawyers are peculiarly subject to speech restrictions. They can’t break privilege, for just one example. Is shutting up when a jury has acquitted and you don’t agree with it as fundamental to being a lawyer as that? I think it is.

      I don’t like slippery slopes any more than you do. I recognize the danger. But I don’t think this slope is all that slippery. The whole point of the processes we lawyers operate is to avoid the lynch mob in all its manifesations. Inciting the lynch mob turns that on its head.

      You know, it’s the yell fire in a crowded theater kind of thing. But the only people in the theater are lawyers. I’m sure there’s a lawyer joke in there somewhere, too.

  3. John Kindley

    So long as Nancy Grace could get slapped with misconduct for her personal attacks on the Casey Anthony jurors for acquitting without putting me and other lawyers at risk should we “intemperately” criticize another jury in another case for convicting, I’m on board. I agree with you that on a theoretical level this slope isn’t all that slippery. But I don’t exactly trust those in charge of regulating the “legal profession” (which I’d rather see dissolve with the abrogation of UPL laws) to recognize and honor the essential distinction. From what I’ve seen from that bunch, among them it’s every bit as bad for a guilty person to go free as it is for an innocent person to be convicted. In fact, it’s worse.

    • hcannon

      So true. They see the wrongfully convicted as collateral damage in a just and righteous war. Good thinking John.

  4. bluebird

    Nancy Grace does nothing to advance the profession. Her bar license is used only to buttress her credibility for her show. If she were not a lawyer, her speech is most likely protected under the First Amendment-much like Limbaugh, Glenn Beck, Howard Stern. But as a lawyer, an Officer of the Court, whose conduct must meet professional and ethical standards that are regulated… where she is commenting on the legal case, witness testimony, rules of court, speaking about other lawyers, and is disemminating misinformation, and inciting mobs……..she should be disbarred. I do not think she can hid behind the First Amendment here.

    • Country Lawyer

      Agreed! We give up a lot of our first amendment rights in this context when we choose to practice law. I would be happy with a reprimand.

    • Floy Alexander

      Bravo to you, bluebird..I so agree with you comment. I might add..Nancy Grace has been banned from *reporting* the Michael Jackson trial.

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