In re Palmieri

Scott, J. (concurring) :

Ordinarily in a case like the present I should content myself in concurring in the very satisfactory and convincing opinion of the presiding justice. But the dissenting opinion of my brother Page raises a question which overshadows in importance the concrete question whether or not this respondent has been guilty of such professional misconduct as deserves severe disciplinary action on the part of the court. While I do not understand, or for a moment believe, that Mr. Justice Page intends to advocate a different standard of professional honor for lawyers engaged in defending criminal prosecutions from that which should obtain in civil causes, yet there is much in the opinion which may be, and if agreed to doubtless would be, cited by dishonest lawyers to justify fraud and chicanery in defending criminals such as would not be tolerated in the prosecution or defense of any civil action, just as the often-quoted dictum of Lord Brougham as to the duty which a lawyer owes to his client, and which is cited to us by this respondent’s counsel, has been frequently misconstrued and misapplied as if it were an authority for wrongdoing, which it distinctly is not.

There is no recognized rule of law or ethics which justifies the conduct of counsel in any case, civil or criminal, in endeavoring by dishonest means to mislead the court or jury, even if to do so might work to the advantage of his client. The interest of the public and the honor of the profession alike require that counsel in a criminal case, as well as a civil, shall employ honest methods and refrain from deceit and chicane. In this sense I deny most emphatically that the obligations of an attorney to the court are any different in a civil and in a criminal case. This obligation is clearly recognized and defined in the Fifth Canon of Ethics, which is quoted by my brother Page. After asserting the right of a lawyer to assume the defense of a person accused of crime, regardless of his personal opinion as to his guilt, the canon proceeds: “Having undertaken such defense, the lawyer is bound by all fair and honorable means, *67to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.” It will be difficult to find in this canon a justification for using, in behalf of an accused person, unfair and dishonorable means, such as I am convinced were used by the respondent.

The misconduct charged against the respondent occurred in the course of a trial in which he was defending a man named De Lane indicted for receiving from a prostitute, named Jeanette Annette, the proceeds of her prostitution. This woman would obviously be a most important witness for the defense provided she would swear she never gave the accused any money, and provided also that the jury believed her testimony. It was apparently a matter of little or no difficulty to get her to swear to the innocence of the accused. The real difficulty lay in inducing the jury to believe her. As matter of fact she had been kept for some time, by the accused or his friends, beyond the reach of the district attorney in a little known town in a distant part of the State. By the respondent’s instructions she was sent for to come to the city of Hew York where the trial was to be had, and spent parts of two days before she was called as a witness at the- respondent’s private residence in consultation with him. After that she was called as a witness and testified in behalf of his client. It is quite evident that if these facts as to the power of the accused over the witness, and her consultation with his counsel, had been made known to the jury, little credence would be given to her testimony. To add verisimilitude to the woman’s evidence in behalf of the accused, some one devised the scheme of having her come into court with a dress suit case and to swear that she had just arrived in the city, having traveled all night from the place at which she had been stopping, and that she had come, not at the behest of the accused, but because she had seen in a Hew York newspaper an account of the trial, and, knowing the accused to be innocent, had of her own accord hastened to Hew York and to the court room to testify in his behalf.

I say that some one concocted this scheme because it is beyond belief that the woman thought it out for herself unaided and uncoached. She was a common prostitute and., *68as her examination indicated, had no more education or intelligence than is commonly found among such persons. It is inconceivable that she should have either appreciated the necessity of accounting for her presence in the way she undertook to do, or developed the elaborate story to so account for it. That some one invented the story and coached her in it I consider to be certain. I do not say that it was the respondent, although he had ample opportunity to do so in the course of her two visits to his residence, but if the only charge against him was that he instructed the Annette woman to swear falsely, it may be that no more than a Scotch verdict could be reached on the evidence.

However this may be, it is apparent beyond any reasonable doubt that respondent was not taken by surprise at the woman’s evidence as to how she came to appear at the trial, but, on the contrary, expected her to testify as she did. His examination of her showed this clearly. His first question to her was: “ Where do you live?” The answer should have been “Mayfield, New York,” but the woman was either too stupid or too nervous to make the expected answer, and replied, “Now I have no residence at all. I don’t live anywhere at present.” Respondent’s next question was: “ What did you have in your hand when you came in here ? ” The reference was to the dress suitcase which was a part of the stage setting designed to fortify the story the woman had been instructed to tell as to how she came to appear as a witness. The question served to recall to the witness the story she was to tell, and in response to the question, “ Where did you come from, Miss Annette?” the witness replied: “Why I just came from Mayfield, N. Y.” Thereafter in response to a series of questions put by respondent the witness testified that Mayfield was up the State and that she had come down “on the train last night ” because she had read something in the newspaper about De Lane’s case. She also testified in response to respondent’s questions that she did not have to come — that nobody knew where she was, to bring her down, but that she came anyway to testify in favor of De Lane. All this testimony was elicited by respondent’s questions. It was all false, and respondent knew that it was false, and must have *69known from the beginning that the woman was reciting a false, concocted story; and yet he persisted in putting questions to her the effect of which was to develop and bring before the jury the whole elaborate lie.

The wholly unnecessary reference to the dress suitcase, and the production of it in court were solely for the purpose of bolstering up the Annette woman’s false testimony as to her having just arrived from Mayfield. This was practically admitted by the respondent before the grievance committee of the Bar Association. When questioned as to his reason for asking the woman about the suitcase he replied as follows: “ Q. Why do you think she brought that bag into Court ? A. My impression was to lend belief that she had just arrived from Mayfield, but, as a matter of fact, she had arrived, I believe, the day before.” Again: “Q. What could be the possible relevancy before the jury of the question what she had in her hand when she came in, what was your idea, how would that help the jury in determining any issue in the case ? A. The fact that she had the bag in her hand, while it did not have any relevancy on the passing of the - money, it was relevant on the question where this woman had been all this time. This woman, as was told by Mr. Martin in his opening address, had been absent a great many months.”

Later on in the trial, as if to emphasize to the jury the truth of the woman’s testimony, which he knew to be false, the respondent offered the suitcase in evidence. Here then we have the spectacle of an experienced trial lawyer leading a witness on by skillful questioning to tell a story which he knew to be false in every particular, and the object of which, as he well knew, was to induce the jury to believe the evidence she was about to give in defense of the prisoner. What matters it, under these circumstances, whether the respondent himself concocted the story and drilled the woman to tell it, or adopted and sought to make effective use of the work of another ? In either case he consciously aided the witness in her attempt to mislead the court and jury by her false testimony.

Hot content with this, the respondent, in his summing up to the jury, adopted as his own the woman’s false testimony. Referring to her he said: “We have got her here, and thank *70God, gentlemen of the jury, that Divine Providence has brought that woman here. It was the Evening Journal. If it was anybody else — she said it was the Evening Journal that she read it in, and, by the way she produced a clipping to the Judge, if I am not mistaken — isn’t that right, Judge?” The Court: “Yes.” Mr. Palmieri: “Thank God, I say to the Press.”

When the respondent made this address to the jury he knew that he was stating what was not trae; he knew that it was the accused prisoner acting upon the respondent’s advice, and neither Divine Providence nor the Evening Journal, nor any other newspaper, that had induced the witness to appear at the trial; he knew that if she had produced a clipping in court, that clipping had been provided as a part of the stage setting to give apparent verity to her concocted lie. If respondent had taken the stand and testified falsely, as the Annette woman did, no one would question the justice of severe discipline. In my opinion his obvious helping her on to lie on the stand, and his deliberate and emphatic adoption in his summing up to the jury of what he personally knew to be false testimony was the equivalent of false swearing by himself, and was precisely as reprehensible and worthy of discipline as it would have been if he had himself taken the stand and testified falsely. I trust that the day may never come when such conduct on the part of a lawyer will be commended or even excused because he was engaged in a criminal case. It is to be borne in mind that we are not dealing with a young attorney who might charitably be considered as having been led astray by zeal and inexperience. The respondent, we are told, has been a member of the bar for twenty-five years and has been during that time actively engaged in trying cases. He has been a Deputy Attorney-General and the judge of an important court in the city of New York. He certainly cannot be heard to plead that he did not know what he was doing or that it was wrong. Nor was it the case of a lawyer suddenly confronted with an unexpected situation without opportunity to deliberate upon the course which he should adopt. Whoever devised the scheme to give credence to the woman’s story, whether respondent or another, the plan was skillfully devised *71and deliberately carried out by respondent himself by a series of skillful questions. It may be that when he found that the witness was disposed to lie it was not his duty to denounce her, but at least it was his clear duty not to help her along, and not to use her false testimony in his address to the jury as if he believed it to be true.

Finally it is said that the matter as to which the witness lied was only collateral to the main issue in the case, and that she could not have been convicted for the crime of perjury for swearing falsely.. This may be true, but whether collateral or not, it was deemed to be very important as a means of leading the jury to believe the evidence the witness was about to give upon the main issue in the case. Morally, at least, if not legally, the witness was guilty of perjury and the .respondent made himself her accomplice.

Either this respondent was guilty of gross professional misconduct or his effort to clear his client by what he knew to be false testimony entitles him to commendation. I see no middle ground, and no one, I believe, will consider that he should be commended.

I agree with the presiding justice that he should be disbarred.

Clarke, P. J., Smith and Davis, JJ., concurred.