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.