Sometimes Lawyers Forget: Legal Doesn't Make It Right

IT HAS been my experience that whenever one criticizes the conduct of lawyers, they rise up in wounded outrage to snarl that the critic is a doltish lout who wouldn't know ares ipsa loquitur if he tripped over one.

Their usual theme is that they're doing heaven's work and therefore should not have to suffer the pestering of idiots who go around suggesting that lawyers be subject to the same standards of public behavior as the rest of us.

I recently used the word ``scummy'' to describe the tactics of a couple of New Jersey lawyers (Seattle Times, April 26), and several of their fraternity brothers have responded with indignation.

The lawyers I wrote about are Michael Querques, well known for his defense work on behalf of mob figures, and his colleague, Louis Esposito.

As the attorneys for two of the high-school boys accused of sexually assaulting a mentally retarded young woman in Glen Ridge, N.J., last year, they got a female friend of the defendants to cozy up to the woman and draw her out on her sexual history while secretly recording the conversations.

They then turned the tapes over to the prosecutor as support for their scenario that the retarded 17-year-old was a sexually active, consenting person.

Such secret tape recordings are legal in New Jersey; all that is needed is the consent of one of the participants in the conversation. That's what I wrote. I said the scheme was legal - but scummy.

What lawyers choose to forget from time to time is that what is legal is not always what is right. They want our approval for everything they do in the name of a defendant's right to vigorous representation.

They point to the power of the state, and say, accurately, that government prosecutors secretly tape people all the time; they say this forces them to do the same. My response is that I criticize prosecutors for sharp practices, too, and the defense attorneys could look it up.

We are all accountable for our behavior - lawyers, columnists, high-school heroes who sexually assault retarded girls - whether or not what we do falls under some legal definition of a crime. I don't think any class of people is exempt from such accountability.

Too much is unknown about the Glen Ridge case. Some of the secrecy stems from the confidential nature of the grand-jury system - the Essex County prosecutor has finished presenting evidence to a grand jury, and its decision on whether to indict is awaited. But some of the secrecy has been imposed by the defense lawyers to keep us from seeing how their process works.

For example, they will not tell us how the tapes came to be arranged. The young woman who entrapped the retarded 17-year-old is Mary Carmen Ferraez. Until this column, the only thing that had been made public about her was her first name.

She was a high-school classmate of the two defendants represented by Querques and Esposito - the Scherzer twins, Kyle and Kevin, co-captains of the Glen Ridge High School football team, in whose family basement 14 months ago the mentally impaired girl was invaded with a broomstick, a miniature baseball bat, and another, unidentified wooden object.

Five other members of the football team in the affluent town have also been accused.

Mary Ferraez graduated from Glen Ridge High last year, along with the Scherzer twins. She is now a nursing student. Her father is Lt. Col. Leon Ferraez, director of communications for the Salvation Army in New Jersey.

I spoke with him briefly on the phone the other day. Before he said he didn't want to talk anymore, he confirmed that he had given parental consent to Mary's doing the covert taping. ``Yes, that's correct,'' he said.

He would not answer any other questions. So we don't know the answers to many, many things:

Why did he agree to the entrapment? Did he believe the football players were innocent of any wrongdoing? Was he friendly with the Scherzer family, and did he or Mary come under pressure from them? Or was it Mary herself who lobbied for the idea? What forms of persuasion did the lawyers use?

Leon Ferraez, when I tried to ask him for more information, said: ``I thought all this was in the grand jury and therefore confidential. How did you get this information?''

Apparently he had been assured by someone that Mary's name would never come out. But what justification can there be for keeping her identity or role a secret? We need to know more, not less.

Do the tapes constitute the entirety of her conversations with the retarded girl? Not likely. What soothing words of false friendship did she offer to the unsuspecting girl before pressing the ``on'' switch on the hidden tape recorder?

On the tapes - two made on the telephone and one in a car - Mary Ferraez is heard posing as a sexually inexperienced person who flatters the retarded girl by telling her she needs advice from someone more mature. Mary Ferraez cajoles and prods to get the girl to be explicit.

This is a key witness whose credibility is pivotal. Let's hear more about how she got a retarded girl desperate for friends to talk about sex in general and sex in particular with the football heroes.

(Copyright, 1990, Newsday; distributed by Los Angeles Times/Washington Post News Service)