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Criminal Justice Magazine
Winter 2003
Volume 17 Issue 4

Ethics

Peter A. Joy and Kevin C. McMunigal

Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.

The Alternative Perpetrator Strategy

A California jury recently convicted David Westerfield of kidnapping and murdering seven-year-old Danielle van Dam. The Westerfield trial rekindled debate on defense lawyers defending their clients by suggesting or arguing that another person committed the crime.

The physical evidence against Westerfield was strong. Police found Danielle’s fingerprints and hair inside Westerfield’s home and the RV he took into the desert the weekend she disappeared. Her blood was discovered on a jacket Westerfield brought to the dry cleaner on the Monday morning after her disappearance.

The defense strategy at trial centered on suggesting that someone other than Westerfield might have kidnapped and killed Danielle. Westerfield’s lawyers focused on the lifestyle of Danielle’s parents, allegedly "sexual swingers." According to news reports, there was testimony that the night Danielle disappeared her mother had smoked marijuana and gone out drinking and "dirty dancing" with friends and that she returned home with some of those friends. There was also testimony that the van Dams often let strangers come into their home.

Shortly after the jury returned a guilty verdict, the San Diego Union-Tribune, quoting unnamed sources, reported that Westerfield’s lawyers offered early in the case to have Westerfield tell the police where to find Danielle’s body if the prosecutors would not seek the death penalty. The public reacted to the story with anger and outrage. Some news commentators accused the defense lawyers of attempting intentionally to mislead the jury while knowing that their client had committed the crime. Bill O’Reilly, host of The O’Reilly Factor, filed an ethics complaint against Westerfield’s lawyers for allegedly fabricating stories in court.

The Westerfield case raises the issue of how far a defense lawyer may go in providing a zealous and ethical defense to a client through the use of blame-shifting. This column will review the ethical and evidentiary rules that bear on defense use of an alternative perpetrator strategy and explore a defense lawyer’s conduct in two contexts—when the defense lawyer does not know if the defendant committed the charged offense and when the lawyer does know the defendant committed the offense.

"Plan B"

Defense lawyers often focus at trial on the sufficiency of the government’s proof that the defendant did the act required by the charged crime. One method of doing this is the alternative perpetrator strategy, colloquially referred to as SODDI ("some other dude did it") or simply "Plan B." Whatever the label, the strategy centers on demonstrating the insufficiency of the government’s evidence by suggesting that the evidence does not eliminate the possibility that someone other than the defendant committed the crime.

In addition to the Westerfield case, other well-known examples of the alternative perpetrator strategy were the efforts to shift blame to drug dealers in the O.J. Simpson case and to an unknown "Middle-Eastern looking man" in the Timothy McVeigh case. The television series The Practice popularized the label "Plan B" for the alternative perpetrator strategy in several fictional story lines. In each instance of Plan B, both real and fictional, the defense lawyer tries to answer the common jury question, "If not the defendant, then who?"

Plan B comes in two versions, "soft" and "hard." In both, Plan B is calculated to raise doubts about the prosecution’s evidence by providing the defense with the basis to argue "what ifs" such as "What if the police had continued investigating possible suspects?" or "What if the police had tracked down all the persons who had access to the victim’s home the night she disappeared?" In the "soft" version, the defense does not identify a specific alternative perpetrator. In the "hard" version, the defense lawyer does identify a specific alternative perpetrator. In both versions, demonstrating that someone else had the opportunity and/or motive to commit the crime strengthens the defense argument that the prosecution has failed to prove its case against the defendant beyond a reasonable doubt. In short, this strategy takes the position that if the government’s evidence fails to eliminate a reasonable possibility of an alternative perpetrator, then it necessarily fails to eliminate reasonable doubt and the defendant should be acquitted.

To use or not to use Plan B

Although some question the use of Plan B in the Westerfield and other cases, Atticus Finch’s use of Plan B in To Kill a Mockingbird to defend an African-American defendant, charged with raping a white woman in a segregated small Southern town, is almost universally admired by lawyers and nonlawyers alike. Through relentless cross-examination of the complaining witness, Atticus attempted to prove that her father rather than the defendant beat her and that the charge of rape was fabricated and racially motivated to cover up the father’s abuse. In this context, in which Atticus believes that the charges against his client are unfounded, the use of Plan B even in its hard version is viewed not only as ethical but also as a courageous act that has inspired generations of students to choose law as a career. Legal scholars have pointed to Atticus Finch as a model, ethical lawyer. But would his use of Plan B have been ethical if his client admitted committing the crime?

The criminal justice system relies on defense lawyers to represent their clients regardless of guilt or innocence. Our law of criminal procedure requires that every criminal defendant be presumed innocent unless and until the government proves the elements of an offense beyond a reasonable doubt. A primary reason for requiring lawyers to defend clients regardless of factual guilt is to ensure that these rules are enforced. The Plan B strategy is aimed at testing the sufficiency of the government’s evidence and thus enforcing the legal requirement of proof beyond reasonable doubt. Since the requirement of proof beyond a reasonable doubt applies to both guilty and innocent clients alike, the standard legal ethics view is that the use of Plan B is appropriate regardless of the client’s guilt.

Critiques of Plan B

There are two primary criticisms of the alternative perpetrator strategy. One is that it promotes falsity and inaccuracy. This criticism is aimed at both the soft and hard versions of Plan B. A second criticism is that the strategy is unfair to third persons— in particular those specifically targeted as possible alternative perpetrators—who are innocent. The accusation entailed in the alternative perpetrator strategy may cause such persons great emotional distress, disrupt their relationships with family and friends, and generally damage their reputations in a way they may never be able to repair. This second criticism is aimed primarily at the hard version of Plan B.

Falsity: Ethics rules prohibit a lawyer from introducing false evidence or assisting a client in a criminal or fraudulent act. For example, Model Rule 3.3 states that "[a] lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or . . . offer evidence that the lawyer knows to be false." Model Rule 8.4(c) states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." In addition, Model Rule 1.4 states that a lawyer "shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent." The ABA Defense Function Standards take a position similar to the Model Rules on using false evidence. But does Plan B involve the use of false evidence or fraud?

Neither the Model Rules nor the ABA Defense Function Standards specifically address Plan B. But they do require a lawyer to question the sufficiency of the government’s evidence even if the lawyer knows that the client has committed the offense. For example, Standard 4–7.6(b) specifically provides that "[d]efense counsel’s belief or knowledge that the witness is telling the truth does not preclude cross-examination."

Two viewpoints about the proper focal point of a trial frequently compete in both public and scholarly debate about the criminal justice system and the ethics of defense counsel. One is that criminal trials are primarily about finding the truth, an accurate account of what happened in the past. Many of the critics of the lawyers in the Westerfield case implicitly adopt this viewpoint. The second viewpoint is that trials are not primarily about truth, but about assessing the quality of the government’s proof about what happened in the past. Lawyers tend to adopt this second viewpoint. Our rules of evidence and our law of criminal procedure also adopt this second viewpoint by emphasizing that if the evidence is not sufficient to prove guilt, a defendant must go free even if he or she is, in fact, guilty. For example, the instructions and verdict forms used in criminal cases pose the critical question not as to whether or not the defendant is guilty, but whether the government has proven the defendant guilty beyond reasonable doubt.

From the first viewpoint, lawyers using Plan B when they know their client is guilty are trying to mislead the jury into drawing a false or inaccurate conclusion about what actually happened in the past. From the second viewpoint, those lawyers are trying to lead the jury to an accurate assessment of the evidence the government presented at trial.

Fairness: The second critique of Plan B—that it is unfair to innocent persons to cast them in the role of the potential alternative perpetrator—is harder to refute than the falsity critique. In soft Plan B cases, a defense lawyer focuses on the possibility of some unidentified alternative perpetrator. Consequently, there is no harm to any specific third person. In hard Plan B cases, however, the defense lawyer does identify an alternative perpetrator. In those situations, the third party may suffer irreparable harm.

In a hard Plan B case, whether or not the defense lawyer believes that the suggested alternative perpetrator is actually culpable becomes an important factor in assessing the fairness critique. For example, Atticus Finch’s belief that the father was the culpable perpetrator justifies the use of Plan B even though Atticus shifted blame specifically to the father and implicitly accused the victim of perjury. If the alternative perpetrator, such as the father in To Kill a Mockingbird, is in fact guilty, then he deserves the harm that comes from exposing his guilt. Similarly, if the victim was committing perjury, she deserves whatever harm flows from having her perjury exposed. But, if Atticus knew that his client was guilty, shifting blame to an innocent father and impugning the honesty of a truthful victim would have caused them damage neither deserved. What justification is there for a lawyer harming innocent people in this way?

Naming a specific alternative perpetrator may strengthen an insufficiency of evidence argument by providing the jury with a concrete plausible alternative. In essence, the possible harm to innocent third parties is justified by the importance of protecting innocent defendants by enforcing the burden of proof in all criminal cases. This tolerance for harm to innocent third parties reflects the high value placed on permitting a defense lawyer to urge the jury to judge rigorously the sufficiency of the evidence.

A lawyer’s use of a hard Plan B is subject to some ethical constraints. For example, Model Rule 3.4(e) states that a lawyer in trial may not "allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence." In addition, Model Rule 4.4(a) states that in representing a client "a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person."

According to ABA Defense Function Standard 4–7.6, direct and cross-examination must "be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily." Standard 4–7.6 further provides that "[d]efense counsel should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking." Thus, a lawyer using a hard Plan B must reasonably believe the strategy will be supported by admissible evidence, believe the Plan B strategy serves a substantial purpose, conduct the examinations without intimidating or humiliating the witness unnecessarily, and must not ask questions lacking a good faith factual basis.

But the foregoing limitations on a hard Plan B are tempered by Model Rule 3.1’s provision that a "lawyer for the defendant in a criminal proceeding . . . may nevertheless so defend the proceeding as to require that every element of the case be established." ABA Defense Function Standard 4–7.77 goes further by expressly permitting defense counsel "in closing argument to the jury, [to] argue all reasonable inferences from the evidence in the record." Thus, these ethics rules permit the use of a hard Plan B that enables the defense lawyer to put the prosecution’s evidence to the test and permit the lawyer to argue all reasonable inferences from the evidence even if the lawyer knows the client is guilty.

Strategic self-interest may also constrain the use of a hard Plan B. For example, a jury might react negatively to an attempt to shift blame to a sympathetic alternative perpetrator. The use of Plan B also is governed by rules of evidence that provide some measure of protection for third persons.

Evidentiary limits on Plan B

Evidence law in a majority of jurisdictions prohibits introducing evidence of an alternative perpetrator unless there is a "direct connection" between the alternative perpetrator and the crime. Depending on the state, defense counsel must produce either "some evidence" or "substantial evidence" linking the alternative perpetrator to the crime. In some states, the direct connection hurdle is quite high and requires that the evidence "clearly implicate someone besides the accused as the guilty person." ( State v. Clark, 859 S.W.2d 782, 788 (Mo. App. 1993); see also Romano v. State, 847 P.2d 368, 381 (Okla. Crim. App. 1993) (requiring evidence "clearly to point to another, rather than the accused").) The direct connection requirement appears to be based on avoiding harm to third parties as well as concerns about undue consumption of time and jury confusion.

In People v. Green, 609 P.2d 468, 480 (Cal. 1980), the California Supreme Court explained: "It is settled . . . that evidence that a third person had a motive to commit the crime with which the defendant is charged is inadmissible if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense." The Georgia Supreme Court in Klinect v. State, 501 S.E.2d 810, 814 (Ga. 1998), held that "the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature."

These rigorous direct connection limitations on Plan B are at odds with the ethics rules’ permissive attitude toward the use of Plan B. Substantial direct connection rules also implicitly require defense counsel to have sufficient resources to thoroughly investigate possible alternative perpetrators in order to establish the necessary connection with the crime to introduce evidence or cross-examine about their opportunities or motives for committing the offense.

Some commentators have argued that high direct connection hurdles undermine the burden of proof, disrupt the balance of the adversarial system, and may even impair a defendant’s Sixth Amendment jury trial right. As Professor Wigmore stated:

[I]f the evidence is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic, but should afford the accused every opportunity to create that doubt. A contrary rule is unfair to a really innocent defendant.

(1A Wigmore, Evidence § 139, at 1724 (Tillers Rev . 1983).)

Conclusion

The Plan B strategy has both virtues and vices. It is precisely this tension that several episodes of The Practice have successfully tapped. Lawyers using the alternative perpetrator strategy advance a worthwhile goal—making the government produce sufficient evidence before convicting someone of a crime. In doing so, though, they may shield a guilty client from conviction and harm innocent third parties. These negative consequences are obvious, vivid, and concrete. The good it produces, by contrast, is abstract and all but invisible to a public that sees trials as primarily about accurately determining historical truth rather than assessing the adequacy of evidence produced at a trial. It is little wonder then that the use of Plan B sparked the anger and outrage it did in the Westerfield trial. There is little doubt that it will continue to do so. ؀



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