The Conundrum of Zealous Representation

Ohio State Journal of Criminal Law, Vol. 8, No. 2, 2011

Washington & Lee Legal Studies Paper No. 2011-2

21 Pages Posted: 11 Feb 2011

See all articles by Scott E. Sundby

Scott E. Sundby

University of Miami School of Law

Date Written: February 9, 2011


In her book, Rising Road: A True Tale of Love, Race, and Religion in America, Sharon Davies recounts the fascinating tale of a murder that commanded national attention when it occurred in 1920. The events leading up to the killing would do justice to any novelist’s imagination: a Methodist minister, Edwin Stephenson, murders a Catholic priest upon learning that the priest had just married the minister’s 18 year-old daughter to a Catholic man who also is a "foreigner." Adding to the emotional turmoil surrounding the case, the murder and the ensuing trial take place in Birmingham, Alabama during a time when anti-Catholic fervor is sweeping across the South. But just in case that volatile mix is not sufficient to pique the reader’s interest, who is Stephenson’s defense attorney? None other than Hugo Black, a rising star in the Alabama bar with a personal grudge against the district attorney. This review uses Hugo Black’s actions during the trial – especially his willingness to engage in tactics that draw off of the religious and racial overtones of the murder – as a way of thinking about what constitutes "zealous" representation of a client. By looking at how Black conducted the defense – building from vigorous cross-examination on up to a courtroom display that Davies quite rightfully terms "extraordinary" for its inflammatory potential – this essay asks the question of whether Black at some point crossed an ethical line from "zealous" to "overzealous" representation.

Keywords: cross-examination, impugning a witness’s credibility, using tactics that ostensibly support a defense but have the potential to inflame the jury

JEL Classification: K10

Suggested Citation

Sundby, Scott E., The Conundrum of Zealous Representation (February 9, 2011). Ohio State Journal of Criminal Law, Vol. 8, No. 2, 2011; Washington & Lee Legal Studies Paper No. 2011-2. Available at SSRN:

Scott E. Sundby (Contact Author)

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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