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It’s My Client. I Can Cry if I Want

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jury box

Photo from website of U.S. District Court (W.D. Mi.).

Many trial lawyers do their best to keep a stiff upper lip, to keep their hearts off their sleeves, and certainly to avoid getting misty-eyed in court even if that requires asking for a short recess to come back with dry eyes.

Sure, crying in the courtroom can be risky for a lawyer. By the same token, I agree with Gerry Spence, who says: “Real persons cry…It is all right, indeed, it is imperative, that we be who we are in or out of court.” Gerry Spence, Win Your Case at 161.

When a lawyer’s tears are genuine — certainly that can be the case when a death penalty opponent argues in closing to spare his or her client from execution — how can a judge order the lawyer not to cry, not to be real?

A prosecutor in Ohio has asked a court to ban defense lawyer tears in the courtroom of a death penalty trial. I certainly disagree with the request, for the above-stated reasons. Moreover, what is good for the goose is good for the gander; if defense lawyers are banned from crying in the courtroom, then the ban should also apply to prosecutors, their witnesses, and murder victims’ family members during the sentencing phase of capital cases.

Jon Katz.

ADDENDUM I: Thanks to a fellow listserv member for posting the article on this matter.