Cracking Down on Courtroom Tears

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Bill Varie / Corbis

Defense attorneys in capital murder cases have often been accused of not working hard enough to help spare their clients the death penalty, in some cases even falling asleep in the middle of a trial. It's not often, though, that lawyers are accused of caring too much — or at least appearing to care too much — about the fate of the defendants they represent.

But that is essentially what state prosecutors in Ohio are claiming, as they try to ban attorneys from swaying a jury with the power of tears. Butler County assistant prosecutor Jason Phillabaum filed a motion last week calling on the judge to "prohibit" the defense from using emotional appeals to the jury during the upcoming capital-punishment trial of James O'Hara, who is accused of fatally stabbing Stanley Lawson last summer.

"Specifically, defense attorneys have strategically been known to cry on cue and beg for their clients' lives," the motion states, meaning the attorneys are "appealing to the emotion [of the jury] instead of reason." The filing cites a 1999 capital case ruling by the Ohio Supreme Court that it is "improper to inflame a jury's emotions by crying."

By filing this motion, Phillabaum and county prosecutor Robin Piper claim to be trying to avoid a repeat of last month's trial of Harvey Johnson, during which they watched tears roll down the cheeks of defense attorney Greg Howard as he asked the jury to spare his client from the death penalty. The jury assented and Johnson, who was convicted of kidnapping and strangling Kiva Gazaway, was sentenced to life imprisonment.

In the upcoming O'Hara trial Piper and Phillabaum are once again up against Howard — who has saved the lives of 15 of his previous 19 clients in death-penalty cases. But Phillabaum insists that the anticrying motion is not a reaction to one particular trial or attorney, but the result of witnessing emotional displays "inappropriate[ly]" tipping the scales of justice in many capital cases.

From the other side of the bench, Howard views the motion as a direct attack on his rights as an attorney. "It's a little ridiculous," he says. "It's because they haven't received a death verdict for so long in this county." David Washington, who will be representing O'Hara alongside Howard when the trial begins on Aug. 9, concurs: "I think the state is absolutely desperate in an attempt to limit what we can and can't do."

Phillabaum's motion has drawn particular attention because of its implication that attorneys weep crocodile tears in a calculated attempt to manipulate juries. Howard vehemently denies this accusation. "They're alleging that I cry on cue and that I've been trained to do this. Nothing could be further from the truth," he told TIME. "In a death penalty case, as strongly as I feel for my clients and as much time and energy as I've put in, it happens."

In light of Howard's strong denials, the prosecution team is now backpedaling on its initial accusation. "I think we overstated at one point," Piper admits. "I think the emotion is sincere." He adds that it is difficult at times for prosecutors, himself included, to maintain composure. "When you have the loss of human life, when you see people's lives destroyed, you can get caught up," Piper says, referring to his sensitivity toward victims and their families.

The Ohio case reflects a long-standing uncertainty about the role of emotion in the application of the law, according to Doug Berman, an Ohio State University law professor and criminal-sentencing expert. He says that Phillabaum's motion is "part of a perhaps misguided attempt to suggest that the law is all rational and not based on emotion."

One recent example of this ambivalence is the 2006 Supreme Court case on whether it was prejudicial for a murder victim's family to wear buttons with a picture of the deceased during a trial. After much debate, the Supreme Court overturned a U.S. Court of Appeals decision and ruled that the buttons were permissible. "There is a tendency to assume that any emotion is necessarily distorting," Berman explains, but as the Supreme Court case showed, "that's overly broad." Emotional displays may simply enhance the issue at hand, not obscure or manipulate it.

For Washington and Howard, their primary concern is to give their best effort to protect their client. "The emotion is part of what makes you an effective litigator," argues Washington. "You have to believe in what you're working for. When you get to the point when you don't have emotion about what you're doing, you should think about doing something else."