Lawyer fined $2,500 for calling witnesses liars in violation of trial judge's order

Chief Judge Jones of the W.D. Va. in In re Katz found a criminal defense lawyer guilty of criminal contempt and imposed a fine of $2,500, where he concluded that the lawyer had willfully violated the order by Judge Moon during a trial in Charlottesville that he stop calling the government's witnesses "liars."

The violation came at the end of a segment in the lawyer's argument when he compared himself to Toto in the Wizard of Oz, exposing "that lying piece of crap behind the curtain," then concluded his argument by shouting "no good liars." Previously, Judge Moon had instructed the lawyer not to call the witnesses liars.

Among other things, Chief Judge Jones noted the following:

The issue in this case is not whether it is proper for an attorney to describe a witness as a being a liar. Court opinions are not uniform on this question; it is more likely to be held improper when the context shows that it is used as an expression of personal opinion by the attorney as to a witnesses' credibility. See Moore v. United States, 934 F. Supp. 724, 728-29 (E.D. Va. 1996); Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U.L. Rev. 67, 116-20 (2001). Even when not coupled with counsel's personal belief, however, the word has "potentially emotive effects" and "if used excessively and intemperately, [may] amount to improper argument." Moore, 934 F. Supp. at 728, 729. Under the facts here, Judge Moon was clearly justified in directing Katz to stop using the word in his description of the government's witnesses.

In a footnote, the Court added:

It is a long-standing rule of professional ethics that an attorney must not state a personal opinion on the credibility of any witness. See, e.g., Am. Bar Ass'n, Standards for Criminal Justice, Prosecution Function and Defense Function Standard 4-7.7(b) (3d ed. 1993) ("Defense counsel should not express a personal belief or opinion in his or her client's innocence or personal belief or opinion in the truth or falsity of any testimony or evidence."); Va. Code of Professional Responsibility, DR 7-105C(4) ("In appearing in his professional capacity before a tribunal, a lawyer shall not [a]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness, . . . or as to the guilt or innocence of an accused."); Md. Lawyer's Rules of Professional Conduct, Rule 3.4(e) ("A lawyer shall not, in trial, . . . assert personal knowledge or facts in issue except when testifying as a witness, or state a personal opinion as to the . . . credibility of a witness . . . or the guilt or innocence of an accused.").