Strictly business?

Today, Law.com forwarded to its subscribers a Texas Lawyer story about two attorneys who are being tried for theft by means of coercion and deception. Not too interesting yet? Well, they’re married to each other. Still nothing? Well, the allegation in the case is that the wife had sexual liaisons with four married men and then the husband wrote demand letters offering to accept sums of money in lieu of filing tort actions against the men for intentional infliction of emotional distress. The husband and wife allegedly collected more than $100,000 in settlement payments this way. (Another source says there was a fifth man who somehow didn’t receive notice of the threatened lawsuit and therefore didn’t cough up any money.)

I gather from the article that the husband contends he was legitimately surprised and outraged by the affairs his wife conducted with the four (or five) men, and that he did nothing wrong in making legitimate settlement demands of genuine disputes. After all, as his lawyer points out, many men would have beat the four (or five) guys up, and it’s not clear why he should be prosecuted for going to court instead. On the other hand, if he and his wife hatched a plan to set up four married men and then extort money from them, should it really matter that they used the forms of the law rather than threatening to send out leg-breakers, or even to spill the beans to the men’s wives?

The trial is scheduled to begin Feb. 12, and obviously I have no idea whether the two defendants are innocent or guilty so I don’t mean to argue for either verdict. Nor am I interested in the specifically “legal” angle here, which is that some members of the bar think a “demand letter” should be privileged and should not lead to any criminal liability no matter what. But I do find it interesting that the prosecution’s theory of the case assumes that the jury will find it plausible to think a husband-wife team would do this for money.

Here’s why I say that: There are presumably plenty of cases in which Husband finds out the name of Loverboy, who had an affair with Wife; then Husband drives to Loverboy’s house, and beats the seeds out of him. But somehow that set of facts doesn’t make us all wonder, “Gosh, I wonder if they were working together, and she just set the poor guy up so her husband could have the fun of kicking his ass?” We might think Loverboy had it coming, or we might think Husband and Wife clearly have some issues they need to work out together instead of blaming Loverboy, but concerted action is almost the last thing that the fact pattern suggests.

Yet in this case, the prosecutor believes — and evidently expects the jury to believe beyond a reasonable doubt — that this was a premeditated pimping of Wife. I am tempted to think that tells us something about ourselves — if not that we think very little of sexual fidelity, then at least that we think other people think very little of sexual fidelity, less at any rate than they think of cold, hard cash.

To anyone acquainted with Alexander Hamilton’s involvement with James and Maria Reynolds, the prosecution’s case will not be as hard a sell as one might wish.

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3 Responses to “Strictly business?”

  1. Bloviate, Esq. Says:

    If you factor in the fact that the wife was typing up the husband’s pleadings that he filed to scare the “victims” into settling, then the prosecution’s case seems less farfetched and some kind of conspiracy seems, well, downright likely. I’m surprised that a “reasonable mind” would conveniently omit this crucial fact when discussing the case. And is it beyond the pale to imagine that substituting an ass-kicking for cold hard cash is exactly what makes this specific case different (and prosecution worthy) than the more typical response to discovering an extra-marital affair? And isn’t the fact that the prosecutor decided to take this case evidence that marital fidelity is of some value? I mean is it fair to critique, his theory, which is more than just plausible, as devaluing fidelity when his actions in prosecuting may well send a message that infidelity — even if agreed to by the spouses — is wrong?

  2. Mark Grannis Says:

    Welcome, Mr. Bloviate. Let me begin by suggesting you use your name. I can guess who you are easily enough, but others might like to know.

    I intended no criticism of the prosecutor. On the contrary, I think the theory of concerted action is quite plausible, and I think the prosecutor is right to think that the jurors will also find it plausible. But shouldn’t we find that plausibility disturbing? If we want to know what our attitudes toward something really are, we often have to “sneak up on ourselves” by paying attention not to what is said but to what is assumed. In this case, you and I join the prosecutor in assuming that $144,000 might very plausibly mean so much to a pair of married lawyers that they would be perfectly happy to make hash of six couples’ marriage vows, including their own. Whether the defendants are guilty or not, I find that background social assumption disturbing.

  3. Mark Grannis Says:

    UPDATE:

    The husband and wife are being tried separately, and the jury has spoken in the husband’s case. According to the Texas Lawyer, they found Ted Roberts guilty on two counts of theft and one count of a continuing course and scheme to commit theft. But here’s the twist: These counts apparently covered Roberts’s transactions with only two of the four men. Roberts’s attorney explained that the jury found Roberts guilty of theft from the two men whom Roberts had told that he would give part of their money to a children’s charity Roberts had created.

    Hmm. I have to admit, it had not occurred to me that guilt or innocence in this case might turn on what the husband told told the four “other men” he intended to do with the money.


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