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Court watchers have also detected a new virulence lately in some defense attacks on prosecutors. During the recent federal racketeering trial that ended in the acquittal of alleged Mob Boss John Gotti, defense lawyers launched savage personal attacks against Prosecutor Diane Giacalone; they even made wild charges that Giacalone had given her underwear to a prospective witness as an inducement to testify. Charges like that, says New York University Law Professor Stephen Gillers, "represent a breakdown in the last thread of civility in a contentious adversarial process."
Defenders of defense attorneys answer that making unsavory accusations is often a lawyer's duty. Says Gillers: "If Litman were to say, 'Listen, / Chambers, this is your best shot, but I don't feel comfortable doing it because I feel it's morally wrong,' he would be guilty of malpractice." Another current trial in Manhattan, involving Subway Gunman Bernhard Goetz, demonstrates the legal value of blaming victims. Goetz offers self-defense as the reason why he shot four black youths who he suspected were preparing to rob him. His attorney has relentlessly highlighted the criminal intentions of the four. The American Bar Association's code of ethics, which requires that attorneys zealously defend their clients, forbids degrading courtroom accusations only if they are also irrelevant. Formal discipline by the bar for violations is apparently rare. In essence, the dividing line between zealousness and callousness is left to a lawyer's discretion -- and his sense that such tactics might backfire, creating juror hostility toward his client.
The most important factor in shaping the conduct and tone of a trial remains the guidance of the judge. But judges are worried that an incautious intervention from the bench might provide a basis for appeal. The result, says Gloria Allred, an activist Los Angeles attorney, is that "judges, who want to allow the defense as much of a chance as possible, sometimes err on the side of the defendant by allowing the victim to be vigorously cross-examined." When they do, the only palliative seems to be public protest. The storm over Hanson's treatment last week led to a formal apology from the judge a few days later. With Atlas at her side, Hanson told reporters, "In the end justice worked and justice was done." It is nice she can forgive. Forgetting may be harder.