By Robert C. Buschel

Just when you thought that as a criminal defense attorney you were only subject to indictment1, fee forfeiture2, and disqualification by the government3, sanctions by major corporations in the form of a lawsuit has reared its head as a new devastating attack against the criminal defense lawyer. World Wrestling Entertainment4 filed a civil lawsuit against a Fort Lauderdale criminal defense attorney for defamation and Lanham Act violations (dissolution of trademark brand)5.

In January, 2001, Lionel Tate was tried for first degree murder in the Broward County, Florida, for killing eight year old playmate, Tiffany Eunick.6 The prosecutor’s theory of murder was not premeditation but felony murder. The underlying felony supporting the felony murder indictment was aggravated child abuse.7 Whether a child can be convicted of felony murder with the underlying felony of aggravated child abuse, is an issue being considered on appeal in Tate v. State, in Florida’s Fourth District Court of Appeal. Lionel was twelve years old at the time of the offense.

Lionel Tate’s criminal defense attorney at trial was James Lewis. James Lewis is a solo practitioner who practices criminal law in Broward County, Florida. James Lewis like many solo practitioners do not have business or malpractice insurance which would cover a defamation claim. Kathleen Grossett-Tate, Lionel Tate’s mother, hired Mr. Lewis for a very modest fee. Mr. Lewis, developed a defense that Lionel Tate had no intent to kill or commit child abuse upon Tiffany Eunick, but was merely mimicking wrestling moves he had seen on television and videotaped wrestling programs. Lionel Tate went as far as reenacting the wrestling moves he executed upon Tiffany Eunick, with a defense psychiatrist.

Lionel Tate was convicted as charged of aggravated child abuse and felony murder. The judge, sentenced Lionel Tate to a mandatory life in prison. Lionel Tate’s conviction is currently on appeal to Florida’s Fourth District Court of Appeal. Since the trial, James Lewis has had to defend himself in federal court, in a civil action, in the Southern District of New York.

World Wrestling Entertainment, sued James Lewis, and others for defaming its corporation. The allegations are that James Lewis made comments outside the courtroom, through out the trial, to the media, perpetuating the false defense that Lionel Tate was imitating wrestling maneuvers on Tiffany Eunick, the night of her death. Since wrestling had nothing to do with the death of Tiffany Eunick, everything James Lewis said was knowingly false and injured the reputation of the corporation.

The lawsuit was not about financial re-compensation. If it were, the national law firm representing the WWE would not assign over a half dozen lawyers, and seemingly limitless resources, which it could not hope to recoup from the solo practitioner. The civil suit was pure punishment of James Lewis. A champion of the Bill of Rights versus a billion dollar corporation.8

Defense claims by attorneys that television violence influenced a person to commit violence upon another is not unique to the Tate case.9 Even the WWE has a website discouraging people from acting out what professional wrestlers do to entertain us everyday.10 Regardless of the good faith debate about whether violence viewed on television influences children to commit violence, and the good faith argument James Lewis made on behalf of Lionel Tate, the lawsuit against him survived a motion to dismiss.

Granted, that many of our defenses when representing the accused are not popular -- they are still necessary as an important function to due process. Many of our defenses admit that our client did it, but he had an excuse. The entrapment defense says my client did it, but was coerced or improperly enticed by the government to commit a crime when the client did not have a propensity to commit such an offense.11 The insanity defense says my client did it, but did not have the mental capacity to form the specific intent to commit the crime.12 Battered Woman Syndrome was a developed defense not recognize by the common law.13 It was derived from the affirmative defense of self-defense.14 The critical point is that only the champions of the lost cause have developed legal defenses for the accused. James Lewis’ efforts were initiated to protect a twelve year old boy from being sentenced to life in prison, not to injure the reputation of an entertainment corporation.

If James Lewis is open to attack by corporate America, then all lawyers are open to civil suit. Suppose a lawyer unsuccessfully sues Big Tobacco in a second hand smoke lawsuit, and commented outside of the courtroom that, “our theory is that smoking can cause cancer in people who don’t even smoke.” Big Tobacco could sue that lawyer for defaming the company. The same scenario could be said for big drug companies. Suppose a criminal defendant’s defense at trial was that a prescription drug made me lose my mind and kill someone.15 Can the producer of the drug then sue the lawyer who put forth the defense? Perhaps Big Tobacco and the drug company would eventually lose the lawsuit, but can the lawyer win in the litigation process? The lawyer can beat the rap, but can he beat the ride?

Mr. Lewis settled the case by writing a tepid letter of apology, and no monetary payment, after paying for more than two years of litigation.


1 See, e.g., United States v. Abbell, 271 F.3d 1286 (11th Cir. 2001).

2 See, e.g., Caplan v. Drysdale, Chartered, 109 S. Ct. 2546 (1989).

3 See, e.g., Wheat v. United States, 108 S. Ct. 1692 (1988).

4 Formerly known as World Wrestling Federation, Inc. (“WWF”).

5 World Wrestling Federation Entertainment, Inc. v. Bozell et. al., 00 Civ. 8616 (DC), (S.D.N.Y.)

6 State of Florida v. Lionel Tate, Case No. 99-14401CF10A, (17th Judicial Circuit, Broward County, Fla.).

7 Whether a child can be convicted of felony murder with the underlying felony of aggravated child abuse, is an issue being considered on appeal in Tate v. State, in Florida’s Fourth District Court of Appeal.

8 Beyond the Mat, video

9 Zamora v. State, 361 So. 2d 776 (Fla. 3d DCA 1978).

10 http://parents.wwe.com/advice/bkyard.html

11 Sorrells v. United States, 53 S. Ct. 210 (1932).

12 Wharton, Criminal Law, 12th Ed., vol. 1, sec. 64; Weihofen, Insanity as a Defense in Criminal Law (1933), pp. 100--103; Weihofen, Partial Insanity and Criminal Intent, 24 Ill.Law Rev. 505 (1930).

13 See, e.g., L. Walker, The Battered Woman (1979).

14 Thomas v. Arin, 106 S. Ct. 466 (1985).

15 See Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997).


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