Was Perry Mason a bad/unethical lawyer?

Great Debates
1

Not long ago, I was reading some old Erle Stanley Gardner paperbacks, and noticed that, when Perry Mason first conferred with a client accused of murder, he usually gave them a spiel that went something like this:

“Tell me exactly what happened, the truth. If you say you’re innocent, I’ll fight to the bitter end for you. But if you’re guilty, tell me now, and I’ll get you the best deal I can.”

Now, as a law-abiding citizen, I find nothing objectionable in what Perry Mason told his clients. But I get the impression that, if a real-life lawyer gave that speech to a real-life client, the legal profession would be outraged. Most criminal defense attorneys don’t appear to WANT to know whether their clients are guilty, and don’t WANT to know the whole truth.

And most latter-day lawyers would be outraged by Perry Mason’s unwillingness to fight tooth and nail for the acquittal of a client he believed to be guilty. Most defense attorneys believe their job is to get their clients off the hook, by any means possible, and would be horrified by the suggestion that their only obligation to guilty clients was to negotiate for the lightest possible sentence. And, as a practical matter, very few criminals would be inclined to hire a lawyer who had such scruuples.

I realize that Perry Mason was not a real lawyer (Erle Stanley Gardner was… and I doubt whether he was quite as conscientious as his creation). Still, for decades, he embodied everything we’d LIKE to believe about criminal lawyers.

The question is, are his fictional scruples still deemed acceptable? Could any lawyer (no matter how capable) with his philosophy succeed in today’s legal world?

2

Well, the quote itself isn’t itself unethical. Many defense attorneys don’t WANT to know whether their client is guilty because attorneys are not allowed to knowingly suborn perjury, and if your client has confessed to you, you can’t put him on the stand to protest his/her innocence. But those attorneys are just keeping their options open - they aren’t acting more or less ethically than Mr. Mason.

As for your (reasonable) interpretation of the quote:

Mr. Mason’s ethical obligation is to “zealously represent” his client’s interests. Given this obligation, being unwilling to fight “tooth and nail” (but within the bounds of the myriad other ethical obligations of an attorney) would be the unscrupulous act.

BTW, extremely few defense attorneys believe it is their job to get their clients off the hook “by any means possible”. We have strict ethical rules. I’m a (civil) defendant’s attorney, not a defense attorney, but the general thrust of the rules are the same.

Sua

3

I’ll tell you who was a bad/unethical lawyer: it was that District Attorney. He kept prosecuting the wrong person. If it hadn’t been for Mason alot of innocent folk would have been in prison or death row. How’d that dope keep getting re-elected?

4

It’s a California thing.

hangs head in shame

P.S. Erle Stanley Gardner sucked as a mystery writer, just as badly as Agatha Christie did. You want good mystery reading from both sides of the pond (in that era of the genre), you gotta go with Rex Stout and Ngaio Marsh.

5

Yes, in any literary sense Stout and Marsh were far superior to ESG, and yet…

At one time ESG was the highest selling author (or maybe higest selling novelist) of all time. His mysteries, written 35 to 70 years ago, continue to sell well. Clearly his books have something that readers wanted and continue to want.

It’s east to criticize ESG’s novels for their many, many flaws. It’s harder to figure out what’s so good about his books so that they continue to be popular despite the obvius flaws.

BTW I highly recommend his non-fiction, particularly his chronicles of expeditions into Baja California.

6

I don’t think O.J.'s lawyers wanted to know the truth, but I’ll bet the one who disposed of the bloody baggage actually was privy to a confession he never reported hearing.

7

Well, in real life, a criminal lawyer who defended only the innocent would get little or no business. (Or would have to be great at fooling himself)

However, IMHO, there’s nothing unethical with such an approach. A lawyer is entitled to turn down any client he or she wants to.

As suggested by Sua, the ethically troubling aspect to the Perry Mason approach is that he will represent the guilty, but only in a limited fashion. As Sua mentioned, a lawyer should zealously represent his client. And I’m not sure that up-front disclosure of the limitation gets Perry off the hook.

The better practice would be to say “If you’re guilty, I advise you to engage a different attorney, (and I will refund your retainer.)”

8

In one of the early Mason books, I think it was The Case of the Sulky Girl, Mason is dealing with a client that looks guilty as hell even to Della and Paul. But she maintains her innocence, and Perry makes a statement to the effect that if he doesn’t then defend her based on the assumption that she’s innocent, then he’s not worthy to call himself an attorney.

As far as Mason’s ethics in general, I should think this issue of defending the guilty would be the least concern. He has been known to tamper with evidence, tamper with witnesses, misdirect police and even arrange to have clients feign illness so that they can’t be questioned by police.

Mind you, I don’t judge Mason too harshly for any of this. But what used to bother me a lot reading these books is that unlike the television show, which concluded with a cathartic public confession, in the books the full truth never comes out. I’ve come to realize that this is just what Gardner is playing at, that the truth doesn’t set anybody free in our system of justice. Every Perry Mason story is an elaborately constructed counter-example to the validity of our jurisprudence.

Psychologically, we tend to like a story in which The Truth is discovered and laid bare for all to see and recognize it as The Truth. But in the books, Mason never even considers this an option. Like it or not, The Truth that is supposed to set you free will not be manifest in whole, nor will it necessarily be acknowledged as Truth, and the part that is manifest and believed may get you hanged. Perry Mason supresses The Truth as much as possible, even the parts that are shown to the readers to convince us of the client’s innocence. What he cannot suppress outright, he manipulates, controlling who knows what, when they know it and how they found out, because the manner in which the truth is revealed is more productive in exonerating a client than the truth itself.

Again, I was disturbed for a while at what I regarded as Gardner’s constant betrayal of the reader’s rightful expectation of cathartic revelation, and indeed Mason’s ethics because having seen The Truth, he chose to squelch it. Sure, the reader knows the truth, but nobody in Mason’s world does except Mason. How frustrating. For years this bothered me, though I kept reading these books. Yet, eventually I realized that the problem was in my own internal narrative, in the simple-minded idea that the truth justified itself. Instead, I’ve come to realize that even where we respect The Truth, we must use it with discretion.

I think in a lot of ways, Erle Stanley Gardner was brilliant. He was not, line-by-line, a great writer of narrative or dialogue or character development. But he was a great writer of plots. Raymond Chandler once, for an excercise, took the plot of a Gardner story and rewrote it as his own. He couldn’t publish it, of course, but he was satisfied that he brought out what the story could have been, and that was not shabby at all. I myself would love to rewrite Gardner’s Cool and Lam mysteries, deepening characters, enriching the narrative, and smoothing out the hokeyness and contrivance in the dialogue. I think I could bring out Gardner’s brilliance frankly better than he could.

9

I think that there’s something missing from the little speech. It’s true that a defence lawyer can’t suborn perjury, so if the client confesses to the lawyer, the lawyer can’t then put the client in the box, nor attempt to lead evidence that is contrary to what the client has told the lawyer.

But, it is always open to the defence to go to trial, not call the accused, and do their best to challenge the prosecution’s case. That’s what the presumption of innocence is about: the prosecution has to prove its case, and if the defence can raise a reasonable doubt, the accused is entitled to an acquittal.

To take a simple example: suppose the client is charged with driving with a blood alcohol level over .08. The accused tells his lawyer that he’d put back a mickey of rye half an hour before driving. The police report indicates that the accused blew over .08.

The defence lawyer can’t try to suggest to the court that his client hadn’t been drinking, since that the client has admitted that. However, the defence lawyer can challenge the accuracy of the breathalyzer: was it properly calibrated, was it used properrly, did the technician have the proper qualifications, and so on. If the defence shows that the brathalyzer was not working that night for some reason, then there’s a reasonable doubt about the reading and the accused should be acquitted.

10

Aside from the speech and attitude, the fictional Mason of the books was always playing fast-and-loose with evidence and with the law. If he wasn’t actually unethical, he was certainly close to it. Switching guns was a favorite ploy, tampering with evidence seemed fairly common (although, IIRC, he always had some tiny loophole on how he wasn’t REALLY tampering with evidence, it wasn’t his fault that the gun fell into the bay.)

I’d have to reread them – it’s been about 35 years. I don’t think ESG would hold up much today. I agree, give me Rex Stout or Ngaio Marsh or Margery Allingham any time.

11

A lot of the trial-based lawyer shows on television are only remotely similar to what really goes on in a law practice. There are a lot of lawyers who hardly ever, and perhaps never, go into a courtroom. Even lawyers specializing in litigation spend a lot more time preparing briefs and motions than arguing in a courtroom. About 95% of cases never go to trial–either they get dismissed, or there is a settlement or plea most of the time.

Also, in actual trials, there is almost never a dramatic “Perry Mason” moment when some brilliant lawyer flashes a stunningly brilliant flourish that no one else saw coming. In real life, any competent lawyer seeks discovery of the other side’s key documents prior to the case and pretty much knows what the other side will try to argue. If one lawyer comes up with a real in-court surprise, 999 times out of 1,000 it happened because the other lawyer screwed up and did not prepare.

12

And for this, I know that you are referring to civil trials only, as there isn’t much discovery in US criminal cases. I daresay, any good criminal defense lawyer can tell a story or two about surprises during criminal trials.

13

Philosophocles, while I agree with you that TV lawyers have precious little to do with rel courts, they also have precious little to do with the Perry mason books, which are what are being discussed here. Mind you, the perry Mason books also had precious little to do with the law as it is practiced. You might say we have three distinct catagories here, with little overlap.

Anyway, the point of Johnny Angel’s post was that you don’t get Perry Mason momments in Perry Mason books any more than you get them in real courts. In Perry Mason books the only person that ever knows the whole story is Perry Mason, and he ain’t talking.

14

Please, Stout is only worth reading so you can spend time with Archie…most of the actual mysteries read like a game of Clue - it’s always Miss Purple putting cyanide in the champagne.

Nice post, Johnny Angel.

15

In the end, I suppose it depends on what you consider the ethical standards to be. Everyone violates some standard of ethics, and Mason certainly violates the ethics that are parcel to his profession. But I can’t help recalling the phrase that is usually tossed around in discussing the world of pulp detective fiction in which Gardner cut his teeth: “…a personal sense of justice…” Perry Mason, however he may play “fast and loose” and “cut corners” (the expressions Gardner loves to use) with externally imposed restrictions, he is absolutely faithful to his own code.

Magdalene wrote:

Thanks. I think I can turn this spiel into a doctoral thesis.