October 19, 2006 – Vol. 42, No. 10
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Lawyers livid over Healey’s attack ads

Dan Devine

It is often difficult to get a group of lawyers to agree on anything. But two recent advertisements from the campaign of Republican gubernatorial nominee Lt. Gov. Kerry Healey attacking Democratic candidate Deval Patrick for his work as a criminal defense attorney seem to have done just that. The ads prompted the state’s leading legal trade paper to take an unprecedented step into the political arena and endorse Patrick in the race for the corner office.

The opening salvo came on Oct. 4, when the Healey camp debuted an ad slamming Patrick’s 1985 defense of Carl Ray Songer, who was convicted and sentenced to death for the December 1973 murder of a Florida highway patrolman.

While serving as a lawyer for the NAACP Legal Defense Fund in New York, Patrick handled Songer’s appeal. He argued that Songer, who had no prior convictions for violent crime, was not allowed to present evidence of his good character, background and education in court. The appeal succeeded, and Songer’s death sentence was commuted to life in prison.

The ad stages a shadowy reenactment of the crime in question as a voiceover tells the story of the state trooper’s murder and Patrick’s role in getting Songer’s sentence reduced. It ends with a question: “While lawyers have a right to defend admitted cop killers, do we really want one as our governor?”

The assault continued with an Oct. 12 spot highlighting Patrick’s support of Benjamin LaGuer, convicted in 1984 and sentenced to life in prison for raping his 59-year-old neighbor. Recent media reports indicate that Patrick wrote letters to prison officials on LaGuer’s behalf as recently as 2000 and made financial contributions to procure DNA testing that, in 2002, linked LaGuer to the rape.

While several DNA experts have questioned the validity of the test, reporting has focused less on the intricacies of LaGuer’s case than on Patrick’s incomplete recollection of the extent of his support, which provided the baseline for Healey’s commercial.

Nestled between excerpts from newspaper clippings intended to show Patrick as waffling is another question: “What kind of person continually defends a brutal rapist?”

Over the past week, several heavyweights in the Massachusetts legal community have raised an uproar over what they feel is an unacceptable implication in those questions — that attorneys defending violent criminals are as bad as their clients.

A letter co-written by Jack Cinquegrana and Mark Mason, presidents of the Boston and Massachusetts Bar Associations, affirmed the role of lawyers who advocate for those accused of heinous crimes as “essential defenders of our liberties.” Neither chose to endorse a gubernatorial candidate.

“Lawyers who take these cases serve everyone by ensuring that the justice system will not be dominated by government power,” the bar presidents wrote. “They make the system work for the weakest as it works for the most powerful members of society.”

A similar memorandum circulated by the board of the Massachusetts Association of Court Appointed Attorneys said the organization “is proud that its members, aware of their Constitutional obligations, would defend an admitted cop killer or an accused rapist.”

“Effective advocacy is essential to true justice,” the memo said.

But the biggest — and by far most talked about — blow came in an editorial published in Monday’s edition of Massachusetts Lawyers Weekly endorsing Patrick for governor, the first time the trade paper has officially supported a candidate for elected office in its 34-year history.

“We have traditionally felt that the so-called pure politics of a campaign outweigh any specific interest lawyers would have, and we would not think to get involved in issues like taxes or anything like that,” said David L. Yas, editor and publisher of Lawyers Weekly. “But when the issue of what it meant to be a criminal defense attorney and whether that was something that should be held against a candidate became a live one, we felt compelled to talk … It would be a break from our past, but for a very good reason.”

While the decision to endorse a candidate has roused criticism, even from some members of Lawyers Weekly’s readership, Yas said a wide array of litigators called for a response to Healey’s ads.

“It’s not unanimous, but we hear it from across all areas of the political spectrum and across different types of lawyers,” he said. “We’ve heard from many prosecutors as well as defense attorneys that Kerry Healey is warping the truth when it comes to her characterizations of criminal defense attorneys.”

The publisher acknowledges that the board discussed a course of action similar to the tacks taken by the MBA, BBA and MACAA, but ultimately decided to “go all the way.”

“We speak for lawyers, and we wanted to speak for them loudly and boldly,” Yas said. “It’s not fair to equate lawyer with client. It’s not fair to suggest that any lawyer who represents an accused criminal is somehow a seedy person for doing so. … There are a lot of angry lawyers, and we wanted to justify their anger. They are enraged when they see Kerry Healey’s attack ad.”

Count Harvard law professor Charles J. Ogletree among that number.

“People are beside themselves in understanding how anyone could criticize a lawyer for doing what he or she is constitutionally required to do. You wouldn’t attack a doctor for treating a patient, and you shouldn’t attack a lawyer for defending a client,” said Ogletree, Harvard’s Jesse Climenko Professor of Law and executive director of the Charles Hamilton Houston Institute for Race & Justice. “Allowing this debate to go on has been harmful not only to the role of lawyers, but also to the public’s knowledge of lawyers’ responsibilities to their clients.”

Charles Walker, executive director of the Lawyers’ Committee for Civil Rights under Law of the Boston Bar Association, called the ads “callous” and indicative of an “ignorance to the foundation of what this state and this country is built on.”

“No political party has a corner on the market of what is fair and what is just, and it’s supposed to be that way. That’s why Isis, the statue of justice, holds the balance in her hand with a blindfold around her eyes — its only view is to the truth,” Walker said. “Healey has totally taken the blindfold off of Isis and spit upon it, and I think it’s just a shame.”

Tim O’Brien, Healey’s campaign manager, defended the advertisements as a legitimate venue for discussing differences in the candidates’ stances on crime.

“Deval Patrick has one of the worst records on crime of any of the candidates to run for governor,” O’Brien told reporters. “He made a priority of taking the side of the offender rather than protecting the victims and we think those are the wrong priorities for the next governor.”

In Walker’s mind, the advertising strategy shows that Healey’s priorities are out of whack.

“It’s not a good thing to see from a person who aspires to be the chief executive of the state, who will be charged with honoring and defending the Constitution,” he said, pausing briefly before closing: “If elected.”

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