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Melfort, Saskatchewan, Canada
I am a lawyer in Melfort, Saskatchewan, Canada who enjoys reading, especially mysteries. Since 2000 I have been writing personal book reviews. This blog includes my reviews, information on and interviews with authors and descriptions of mystery bookstores I have visited. I strive to review all Saskatchewan mysteries. Other Canadian mysteries are listed under the Rest of Canada. As a lawyer I am always interested in legal mysteries. I have a separate page for legal mysteries. Occasionally my reviews of legal mysteries comment on the legal reality of the mystery. You can follow the progression of my favourite authors with up to 15 reviews. Each year I select my favourites in "Bill's Best of ----". As well as current reviews I am posting reviews from 2000 to 2011. Below my most recent couple of posts are the posts of Saskatchewan mysteries I have reviewed alphabetically by author. If you only want a sentence or two description of the book and my recommendation when deciding whether to read the book look at the bold portion of the review. If you would like to email me the link to my email is on the profile page.

Friday, March 14, 2014

The “Bloody Flag” Move is Sleazy and Unethical

Matthew McConaughey as Mickey Haller
In the opening pages of The Gods of Guilt Mickey Haller is representing Leonard Watts, allegedly the “Bumper Car Bandit”, charged with violent carjacking. When it is clear his accuser will not be shaken as a witness and his client is bound to be convicted the accused attacks Mickey in court. The assault brings about a mistrial. To my chagrin it turns out the assault was a trial trick planned by Mickey and his client to avoid a guilty verdict. Mickey calls it the “bloody flag move”.

The “bloody flag” portion of the description is undoubtedly drawn from the American political tradition of “waving the bloody shirt”. It is defined in the Encyclopedia Britannica as follows: 

bloody shirt, in U.S. history, the post-Civil War political strategy of appealing to voters by recalling the passions and hardships of the recent war. This technique of “waving the bloody shirt” was most often employed by Radical Republicans in their efforts to focus public attention on Reconstruction issues still facing the country. Used in the presidential elections of 1868, 1872 and 1876, the strategy was particularly effective in the North in attracting veterans’ votes.

Wikipedia looks back to Anthony’s funeral oration in William Shakespeare’s play Julius Casear:

If you have tears, prepare to shed them now.
You all do know this mantle: I remember
The first time ever Caesar put it on;
'Twas on a summer's evening, in his tent,
That day he overcame the Nervii:
Look, in this place ran Cassius' dagger through:
See what a rent the envious Casca made:
Through this the well-beloved Brutus stabb'd;
And as he pluck'd his cursed steel away,
Mark how the blood of Caesar follow'd it,
As rushing out of doors, to be resolved
If Brutus so unkindly knock'd, or no;
For Brutus, as you know, was Caesar's angel:
Judge, O you gods, how dearly Caesar loved him!
This was the most unkindest cut of all;
For when the noble Caesar saw him stab,
Ingratitude, more strong than traitors' arms,
Quite vanquish'd him: then burst his mighty heart;
And, in his mantle muffling up his face,
Even at the base of Pompey's statua,
Which all the while ran blood, great Caesar fell.
O, what a fall was there, my countrymen!
Then I, and you, and all of us fell down,
Whilst bloody treason flourish'd over us.

Essentially it is a tactic to divert attention away from real issues.

Mickey justifies his action as “the sworn duty of the defence counsel to present the best defence of his client. If that means tipping a mistrial when the chips are down, then so be it.”

I call it sleazy and unethical and hope it can only happen in American fiction.

None of the Canadian legal mysteries I have read by William Deverell, Robert Rotenberg, Douglas Schmeiser, Garrett Wilson, Rosemary Aubert and Gail Bowen (one of her primary characters is lawyer Zack Shreeve) use such deceitful underhanded tactics.

I understand and appreciate the need for a vigorous defence of an accused. I do not accept such tricks as the “bloody flag move”.

In the rest of the book Mickey conducts a powerful defence without resorting to such underhanded tactics. He fights hard to find the facts and law that will save his client. Mickey does not descend again into the depths of defence quackery.

If the “bloody flag move” was meant to show Mickey has no boundaries in his defence of accused I deplore such actions as much as I condemn fictional police and prosecutors who blatantly ignore the rights of accused on the principle the end of convicting the guilty justifies the means.

The Rule of Law, which has been carefully crafted and adjusted over the past 8 centuries in the English legal tradition, only works when all officers of the court – prosecutors, defence counsel and judges - uphold the rules.

I cannot see Mickey’s stunt taking place in Canada in fiction or real life.

An accused attacking his own lawyer in a Canadian court would face, in addition to his existing charges, a new set of charges including contempt of court and assault. He is going to face severe consequences, significant jail time, simply for acting with such contempt of the court.

Mickey expects his associate, Jennifer Aronson, to be able to handle the continuing defence of Watts. In Canada he would have had to get a new lawyer from another firm.

Though I do not know I expect Mickey’s client would have faced additional charges in the United States such as contempt of court.

On a practical note Mickey undertakes a personally risky action with the “bloody flag” move. A client, realizing the move has caused as much trouble for him through additional charges though it has put off conviction on the original charge, could very well turn on Mickey and seek to make a deal with the District Attorney implicating Mickey as the leader in the “bloody flag” move.

If a lawyer’s participation is determined in such an unethical action the lawyer would also face a contempt of court charge, obstruction of justice and almost certain disbarment.

Connelly’s example works well to show how zealous Mickey is in the defence of clients. It works badly as an illustration of the tactics of defence lawyers.
The “bloody flag” move made me cringe.


  1. Bill - Thank you for your perspective on this. I don't have a legal background, but from my limited knowledge, there is a line between defending a client as vigourously as possible and 'dirty tricks.' I don't know enough about American law - I mean real-life American law - to comment on whether an attorney would get away with such a strategy in a real courtroom. I hope not.

  2. Margot: Thanks for the comment. Every lawyer in Saskatchewan as part of Continuing Legal Education must take courses that include ethics.

  3. An excellent post Bill. Thanks very much for the education

    1. Jose Ignacio: Thanks for the comment. I appreciate hearing from you.

  4. A very interesting entry on this strange manoeuvre - I'm glad you take such arincipled stand.

    1. That should read 'a principled stand'

    2. Moira; Thanks for the comment. No problem with the correction. I knew what you meant. I am glad you realized the point to the post.

  5. "The Rule of Law, which has been carefully crafted and adjusted over the past 8 centuries in the English legal tradition, only works when all officers of the court – prosecutors, defence counsel and judges - uphold the rules."

    However this suggests that does not always happen: http://www.washingtonpost.com/news/the-watch/wp/2014/03/07/judge-says-prosecutors-should-follow-the-law-prosecutors-revolt/

    I think the rule in English law is that a counsel is obliged to believe their client's claims and present the best case possible for them. If they find definite confirmation that their client is guilty they must withdraw and another counsel must take their place.

  6. Anonymous: It is a troubling article that American prosecutors from several jurisdictions appear to be holding themselves about the rules. The English / American / Canadian / Australian legal systems must have all participants held to the same standards.

    I disagree with your statement of the law. It would take a lengthy dissertation to respond. Lawyers, as in Connelly's books, often represent guilty people and do their best to represent them.

    A lawyer will withdraw if a client gives evidence their lawyer knows is false.

  7. Well, what an interesting situation. I have never heard of this happening here, nor of it in any legal mysteries I've read. But it could happen.

    I would think the defendant would be charged with assault and more. If a judge thought the attorney set it up, he/she could go to jail, too, for awhile.

    The justice system here is so broken it's incredible. Not only do prosecutors and police withhold important evidence, which would help defendants, but sentences are way too long, often mandatory. There are three-strike laws in many states, which are unfair.

    A man was just released after 30 years in jail because on new evidence that showed he was innocent? New evidence after 30 years? Another man in New York just won a $6.3 million settlemtn because a police detective framed him and he spent 23 years in jail. The detective, now dead, did this with several defendants.

    This is without even mentioning the overuse of solitary confinement throughout the U.S., in violation of international rules on torture. One person spent 41 years in solitary in Louisiana, then was freed for the last three days of his life, but died of cancer. His last words were, "I'm free," said to his lawyers. It makes one weep. Yet the prosecutors were trying to get him reincarcerated.

    Then there are attorneys who don't fight for their clients, who don't advocate for them once they're imprisoned, and they're there for years.

    But as far as this "Bloody Flag" move, this is fiction, after all. Authors have to perk up their stories. The Lincoln Lawyer had a lot of legal maneuverings going on to get the guilty jailed and the innocent freed. If there weren't interesting moves, twists and turns, we wouldn't be reading the books. The same is true of watching Law and Order, etc.

  8. Kathy D.: Thanks for the comment. It is often discouraging to read about America's justice system.

    I completely agree with interesting moves but cannot help but speak out against illegal and unethical moves whether by prosecution or defence.

  9. Can't books have twists and turns that happen to make a story interesting, without implying approval for legal tactics in real life?

    After all, we read mysteries with detectives that do unspeakable, and often, lunatic things to find the culprits and get them arrested.

    1. Kathy D.: You make a good point. I expect if I were a police officer I would be unhappy with unethical police actions. It could very well be illogical to expect "good guy" fictional lawyers to be ethical but it will remain my personal standard.