Law: And Nothing But the Truth

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It is the ethical nightmare dreaded most by criminal-defense attorneys, and it occurs all too often. A client wants to take the stand with a good alibi, but his lawyer strongly suspects the story is a fabrication. Should the attorney look the other way and let the testimony go forward? Miami Lawyer Ellis Rubin answered no, and last week his response landed him in the Dade County jail.

Rubin's troubles began last year after he volunteered to defend Russell Sanborn, 26, a plumber accused of fatally stabbing an 18-year-old woman. On the morning of the trial, with witnesses waiting and jury selection about to begin, Rubin asked to be excused from the case. Carefully mincing words in order to shield confidential conversations with his client, he says, he intimated to Judge Sidney Shapiro that Sanborn planned to lie on the stand. Sanborn, recalls Rubin, had "told me what he wanted to do, what he wanted to say, and what he wanted me to do and say." Shapiro refused Rubin's request, ordering him to proceed with the case. The judge cited the lapse of time since the commission of the crime, the inconvenience to witnesses, Sanborn's rejection of three previous court-appointed defenders and the possibility that "any new counsel will be confronted with the same conflict."

When Rubin appealed, a Florida appellate court backed up Judge Shapiro. The court acknowledged the "serious dilemma" posed by Rubin's responsibility to his client and his conflicting duty to protect the integrity of the judicial system. But it agreed with Shapiro's decision not to let Rubin walk away from the case. Its proposed solution: Rubin could allow the "defendant to take the stand and deliver his statement in narrative form," decline to "elicit the perjurious testimony by questioning," and refuse to "argue the false testimony during closing argument." Following these guidelines, the court assured Rubin, would fulfill his ethical obligations while giving his client all the effective assistance to which he was entitled.

Unpersuaded, Rubin continued to resist defending Sanborn. "To order any attorney to sit and watch with apparent approval while his client commits forbidden acts to a jury does nothing less than order the lawyer to be a knowing instrument of totally unethical and dishonest conduct," he protested. "Silence here is participation; it is cooperation with evil." Judge Shapiro held Rubin in criminal contempt and sentenced him to 30 days. Fully prepared, with underwear and shaving kit stuffed in his briefcase, Rubin last week heard Shapiro pack him off to jail. Undaunted, the lawyer arranged for a habeas corpus petition to be filed with the Florida Supreme Court. Shortly thereafter, he was released on his own recognizance.