Document Type

Article

Publication Title

Hofstra Law Review

Volume

36

Publication Date

2007

Keywords

John Palmieri, John J. Delane, criminal defense, zealous advocacy

Abstract

This Article is an attempt to reconstruct the story of a New York City lawyer's professional death and resurrection. In particular, this is the story of John Palmieri's defense of John J. Delane in the year 1915, a time in the history of the legal profession when the bounds of zealous representation, particularly in criminal cases, were blurry and in transition. This is also the story of what followed the Delane trial: the efforts of prosecutorial, disciplinary, and judicial authorities to resolve factual and legal uncertainties about Palmieri's conduct and intentions in defending his client, their efforts to locate the line between a permissibly zealous defense and an improperly overzealous one, and their efforts to determine whether Palmieri's conduct fell out of bounds. And this is, of course, an attempt to draw some lessons for today from the partially reconstructed story of a criminal defense lawyer who advocated "at the edge" (if not over it) close to a century ago. The story's broad outlines are simple. Palmieri's client, John Delane, is tried for receiving the proceeds of prostitution from one Jeannette Annette, based principally on the testimony of two prostitutes associated with her.3 Annette is not called to testify against Delane because the prosecutor cannot find her. But in the middle of the defense case, Annette makes an entrance, suitcase in hand. She says that she had been living in upstate New York where no one knew how to reach her; that she learned about Delane's trial from the previous day's newspaper; and that she got on the train the night before, arrived in the city early that morning, and, after wandering the streets, mustered up the courage to come to the courthouse to set the record straight.4 Palmieri knows that Annette is lying, both on direct-examination when she begins accounting for her dramatic appearance and on cross-examination when she elaborates, but he does not correct her, and in summation, he briefly presents a small part of her account as true, knowing it to be false. For doing so he becomes the target of both criminal and disciplinary proceedings. The more detailed version that follows proceeds first, with some background to the Delane trial, and then with the trial itself, the criminal investigation and prosecution, and the disciplinary proceedings. The story is based on the record of the disciplinary proceedings against Palmieri (which includes the record ofthe Delanetrial),6 the briefs, and some contemporaneous newspaper accounts, as well as the judicial decisions. Among other things, the story raises questions of ongoing relevance about how lawyers should behave when it is unclear where the lines are drawn or when someone may later perceive that the lawyer crossed the line even if he did not. Equally, the story raises questions about how courts, prosecutors, and disciplinary authorities should regulate lawyers who act in these areas of uncertainty

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