TheAgitator.com
Prison Dillema
Sunday, March 9th, 2008This Eugene Volokh post is interesting, and I’d like to hear some reaction from the defense attorneys who read this site. Two criminal defense attorneys knowingly allowed an innocent man to serve 26 years in prison because they were bound by attorney-client privilege from revealing that their client committed the crime. What’s the ethical thing to do, here? What would you do?
Reminds me a little of the odd dichotomy developing in North Carolina I wrote about a while back, where the state’s supreme court ruled that once a client dies, defense attorneys are obligated to come forward with information that might help the state convict other people, but not if the information could help acquit someone wrongfully convicted.
“What’s the ethical thing to do, here?”
I am not holding you as the one responsible for this, Radley, but the very fact that a question like that ever gets *asked* in a circumstance like this is fucking appalling.
It’s a travesty to talk about “ethics” when it comes to this.
Surely this is one of the difficulties that the double-jeopardy clause and statutes of limitations are meant to avoid — to get rid of the incentives to lie and cover up that last as long as legal jeopardy.
There is something fundamentally wrong with lawyers if, on balance, they think this is “ethically” mandated conduct.
Maybe the lawyers in “Michael Clayton” ARE a realistic sample.
In a neighboring state, Minnesota, the lawyers are working VERY HARD to insure that judges are never accountable to the “little people,” the voters, in a free election. No, the public will not be able to vote without either a constrained electoral format (uncontested “retention” election) or the guidance of the professionals on their vote (name is accompanied by a “rating” by a board of insiders).
“What’s the ethical thing to do, here?”
What does your gut tell you is the ethical thing to do here? You’re an attorney, representing the man you know beyond a reasonable doubt is guilty of the murder that an innocent man is serving time for in prison. My gut reaction is to send a discrete notice to the man’s family to tell them how to get my client to take the heat.
The very fact that lawyers find this case to be interesting, rather than revolting, is to me an indictment of our secular legal system’s standard of right and wrong.
Ethical? They allow a man to be caged like an animal for 26 years because they were being ethical?
What ELSE are they doing for “ethical” reasons?
The most excruciating medieval torments are too lenient for what they deserve.
This one is raging over at Pattericos as well.
Reality it’s way too simple, take the now former PD’s and throw their asses in jail for the next 26 yrs.
Ask them about “legal ethics” when they get out.
Legal ethics=oxymoron
The legal system needs to have some JUSTICE applied to it, might help their get their thinking right again. Mainly JUSTICE trumps procedure 100% of the time!
“America is at that awkward stage. It’s too late to work within the system, but too early to shoot the bastards.”
The very fact that lawyers find this case to be interesting, rather than revolting, is to me an indictment of our secular legal system’s standard of right and wrong.
Not that I disagree, but what does it being “secular” have to do with it?
I agree that it is a shitty situation, but I can’t fault the defense lawyers for this. For them to disclose evidence freeing the wrongly convicted man and putting their own client in jail is taking a giant step down a slippery slope. Defense lawyers are charged with putting up the best defense possible for their clients. Even when they believe that their client is guilty, they still must defend him in court.
If you believe that these attorneys should have provided information to free the innocent man (and place their client in jail) in this case, then do you believe in the attorney client privelidge at all? Or should defense attorneys always be required to submit to the prosecution any incriminating information that they glean from speaking with their client? In that case, the defense attorney basically becomes a de facto prosecutor. That would severely hamper communication between attorney and client, and make it a lot harder for defendants, both innocent and guilty, to win their case. Given the vast number of laws, and their complexity, it is difficult to know if anything you say is in fact an admission of guilt to a law you didn’t even know existed.
Without arguing the details of this particular case, here is the problem in general as I see it. The fact that someone admits to a crime, does not make him guilty. And while such a claim might give you strong reason to believe that your client did commit a crime, you can’t know for sure if it’s true (nor is it your job to make that judgment).
Personally, I don’t see government as being short the tools required to convict the right people. And I don’t see an up side to making defense attorneys into informants for the prosecution.
The immediate and natural emotional response to this situation is misleading.
We shouldn’t be asking, “How could a guilty man’s defense team let an innocent man stay in jail for 26 years?” We should be asking, “How were prosecutors able to prove ‘beyond a reasonable doubt’ that an innocent man committed armed robbery and murder?”
The wrongful conviction was the miscarriage of justice; the fact that these attorneys knew about it is merely an accident, and the systemic fault represented by the all-too-ordinary occurence is far more significant than the unfortunate dilemma posed by the unusual one.
a tough call.
I don’t know.
Maybe drink a bottle or two of wine and see if that helps solve the problem.
What would I do? I wouldn’t become a lawyer because I couldn’t live with myself knowing someone was wrongly convicted. As for the ethcial thing, I have no idea. From a purely consequentialist standpoint, though, it would seem more good would come out of the man being released from prison. That said, Coises makes a good point.
We shouldn’t be asking, “How could a guilty man’s defense team let an innocent man stay in jail for 26 years?” We should be asking, “How were prosecutors able to prove ‘beyond a reasonable doubt’ that an innocent man committed armed robbery and murder?”
Any prosecutor can convict a guilty man, it takes a real pro to convict an innocent man. It would apprear that there are lots of “pros” out there.
My conscience isn’t worth my fucking license. So, it would be very easy for me to spill the beans. I don’t have any issues with breaking “legal ethics.” I have no respect for the ethical system that governs my license. Any ethic that allows for the “Nuremberg Defense” should be admonished with nothing but ridicule. I dunno… legal ethics is like fucking for virginity. An oxymoron at least, a contradiction at worst.
Oh an innocent people get convicted all the time. And it isn’t like our shitty, idiotic code doesn’t allow for exceptions. We have a rule in Arizona that says that if you are fairly certain that your client is going to go out and hurt or kill someone, you actually have duty to spill the beans.
I always ask myself, what would Albert Schweitzer do? Not what would Johnny Cochcran do?
Remember legal ethics is premises on the attitude that we lawyers are all knowing and will fucking anything up the ass but for the existence of this putrid little code and that non-lawyer are stupid laymen that need the protection of said putrid code else they’ll get reamed by aforementioned dishonest lawyers.
And remember there are two different questions: What is the legal ethical thing to do? What is the real ethical think to do?
From a comment in the original Volokh Conspiracy thread:
D’oh. The “But Patterico” said was not part of Mahan’s comment, but my own snarky addition.
Damn this lack of preview function.
It doesn’t actually take a Pro.
It’s actually pretty easy to say a bunch of bad things about someone to the point where you can get a jury of their peers to convict them of murder.
All the have to do is make someone look bad enough, and people will believe anything about them.
The same emotional response that makes people infuriated at first that this could even be considered ethical, is the one that enables the conviction in the first place.
I wonder what this discussion would be like if the story was about a guy who spent 26 years in prison because his attorney mistakenly thought the guy was guilty and gave the prosecution the ammunition they needed to make a case.
Coises hit the nail on the head and I would add that there would probably be a lot fewer false convictions in this country if juries weren’t so predisposed to think of the government as the good guys and the defendants as the bad guys. Then again, the concept of innocent until proven guilty doesn’t hold sway with a lot of people.
Yeah, yeah, yeah, nice bullshit answers.
The reality is we know objectively that 1-2% of those sentenced to probation, jail or prison are factually innocent. That is just a fact. We plead out more cases than that. You may quibble with the numbers, but we regularly convict the innocent.
Culling from my answers at Volokh
The privilege is not about the lawyer it is about the client. Lawyers — and a very few other select others — are entrusted with people’s deepest, darkest secrets so that we may advise them on the best choice they can make for their interests.
As a defense lawyer of many years I see my job as getting my clients who are in jail out and once out have them never go back to jail. If they must serve time I strive to make it the least possible. I advise my client on what I believe, based on my experience and training, what is in their best interest, if they chose to take it or not they must live with the choice not me.
To give them that best advice, however, they need to be as honest with me as I am with them, ratting out their secrets undermines that innate request of “truthfulness.” As a society we have made a determination that those open and honest conversations between attorney and client are more important than a system where a client may be ratted out by their attorney because their attorney’s conscience can’t suck it up or because they place loyalty as less important than some possible version of the “truth,” whatever that means.
I should also note that there is a slippery slope between saying a lawyer should rat out his client and requiring they do so.
But let’s put the shoe on the other foot. Say these two go to the press, the DA, the judge or whoever, and say “hey my client confessed” & Logan is innocent. What then? All charges against Logan are dropped. As they are strapping down Andrew Wilson — your client (after all he is the guy you rep) — to the gurney and are killing him how do you as his counsel live with yourself?
Let’s go a step even further, if you are these two former public defenders, what do you tell your next client after you have told Andrew Wilson’s secrets to the police & prosecutors? “Trust me”? - cuz they won’t because you are a rat. No you don’t squeal, you suck it up, you do what these two guys did, you buy a bottle of vodka to dull the pain on your way home from work, and work your support network until you can come to terms with what you’ve done. Innocent people get convicted, it sucks, the system sucks, but it is still the best system out there, and the only system we have.
You don’t get to handle the serious felonies that Messrs. Jamie Kunz and Dale Coventry have without having danced with the dark side of your own soul more than once. Walk a thief, rapist or murderer (at least in your mind), better yet have an innocent client (at least in your mind) convicted of an “A”/”1st degree” felony and see what happens. Do this enough and you realize that there are more important things in the legal system than your fragile legal ego and the public’s finicky sense of morality.
And despite the law school students over at Volokh saying the Rules of Profession Conduct (the “RPCs) permit Kunz & Conventry to possibly squeal on their clients if there was a death sentence, the Sixth Amendment, as most attorneys who do full time defense work interpret it, doesn’t permit ratting out your client — ever. The reason these guys were talking about if the guys got death they might squeal is that death is different not because of the RPCs; every other decision the system makes is reversible save killing its mistakes.
Those are my two cents.
And before you flame me, I have spent hundreds, if not thousands of hours working on cases where I tried to get the wrongfully convicted sprung. The reality is our system is broken, but it remains the best system we have.
I’d like to say that if presented with this same situation I’d reveal the information, somehow, some way. But this is part of the reason why I do transactional securities law and M&A work instead of criminal law.
Why is this not an option:
“Dear Judge, we have many clients. One of them has given us proof that he murdered XXX, not the man currently in jail for that. We can’t say which of our clients is the culprit, but we can testify in the jailed man’s defense.”
This one’s neither interesting nor particularly hard. You keep your mouth shut.
A. Clients lie all the time. The confession could easily be false.
B. The one chance defense counsel has to win the case is to get his client to trust him. Blabbing off your mouth to the judge (who will refuse to listen) or the prosecutor (who won’t care) only damages your ability to represent your existing client.
C. Why the knock on defense counsel? Where’s the outrage about the priest-penitent privilege?
D. Even if you try to help, you can’t. Absolutely no one will care about some loony defense counsel running around the courthouse saying that he’s absolutely sure some guy, WHO’S NOT EVEN HIS CLIENT, is factually innocent. The only way (this is worth repeating — THE ONLY WAY) defense counsel could try to get the innocent guy off is to implicate his own client under oath. But you can’t get from here to there. First, counsel has to withdraw from representing his own client. Next, the counsel has to get defense counsel in the new case to call him as a witness. Now, because the second lawyer likes his bar license too, he (and the judge) are going to insist that the guy who confessed come to court and waive the privilege.
Now, imagine what happens next. You’ve killed a guy and confessed to your lawyer that you did it. Your lawyer has withdrawn from representing you and won’t tell you why. The next thing that happens is that you’re called into a courtroom, and you see (a) the judge; (b) defense counsel for the guy falsely accused, (c) your ex-lawyer, (d) your new lawyer and (e) no one else — no prosecutor, no jury. The judge puts you on the stand and asks you if you are willing to waive the attorney-client privilege so your ex-lawyer can testify against you. Your new lawyer is telling you to shut your mouth and simultaneously calling the State Bar so your ex-lawyer gets disbarred.
Do you (a) have a sudden attack of remorse and let your ex-lawyer testify about your confession [which will need enough corroborating evidence to convict you, or the prosecutor will just call it a fake confession designed to confuse the jury] or (b) shut your mouth?
There’s lots of evidence kept out of trials that might be probitive — hearsay, tortured confessions, illegally obtained evidence, privileged communications. We keep the evidence out because keeping the system working at all requires the exclusion.
Blame the prosecutor for putting an innocent man in jail.
I agree with those who said to blame the prosecutors and police for what must have been a shoddy investigation. How reliable can our trial system be if innocent people avoid jail only if the guilty ones confess?
The only way those defense lawyers knew that their client committed the crime is _because_ of the attorney-client privilege. The privilege is intended to allow for complete candor in the attorney-client relationship. (Like the penitent-priest privilege.) Do you think the guy would have confessed to them at all if he thought they could/would disclose that information?? Of course not. And another innocent person would still be in jail today and probably for the rest of his life.
Ethics as a human and ethics as a lawyer are entirely different.
Legal ethics are to protect your client. They have no other use.
In the specific case, there was a shotgun found BY LAW ENFORCEMENT that linked the client to the crime and THE STATE apparently didn’t see fit to (1) disclose the existence of the shotgun to the wrongly convicted defendant or (2) charge the client who had the shotgun. All the defense attorneys had was their client’s confession - the state had the gun. Who is more in the wrong?
Speaking as a lawyer, keep your damn mouth shut. Your democracy depends on it.
The lawyer client privilege doesn’t exist to protect the rights of the defendant(well, mostly); it exists to protect the system of a fair trial itself. The lawyer client privilege is the logical extension of the 5th amendment. What you’re talking about here is abolishing that privilege, and if that privilege is abolished, what do you have?
What we have right now with journalists and sources. Cops find out that a defense lawyer knows something about a crime(maybe). Lawyer refuses to talk. Judge, because there is no lawyer client privilege, orders the defense lawyer to talk about what he knows about the case. Lawyer refuses. Lawyer gets thrown in jail for contempt of court until he talks. Privilege is not about protecting individuals. It’s about the state making a value judgment that certain members of society shouldn’t be *forced* to testify. It’s not about preventing people from coming forward. It’s about preventing the state from dragging people into court and holding a metaphorical gun to their head in order to elicit testimony.
It’s not right when it happens to journalists, and it’d be infinitely more wrong if it happened to defense attorneys. If a lawyer could be forced to talk(and that, my friends, is exactly what privilege protects against), who the hell would ever become a defense lawyer, if it could expose you to that type of liability? And now, that we’ve eliminated defense lawyers, what happened to due process and a fair trial? Yeah, exactly. You’ve thrown it out the window. Don’t like Godwinning a thread, but….well, police states and all.
So, to everybody talking about how they couldn’t represent a guilty client….you need to realize that this isn’t about protecting a single person. It’s about serving and protecting the Constitution, something every lawyer swears to do when we are admitted to the bar.
Yes, sometimes, individuals get hurt. That sucks. But, as others above have stated, start looking at the system that allows that sort of thing to happen, not at the defense lawyers who are bound by their oaths of office to provide the best defense they can.
Obviously there’s at a dozen trial-lawyers trooping through here….
(Proud to be in double-digit negatives alongside trench-mate Billy Beck while the Pragmatist Vichy French are off high-fiving the Krauts.)
Salvo> “…If a lawyer could be forced to talk…”
Hey: That red-herring is NOT what this outrage is about. Stay on target.
sef hits is right on the button - “The privilege is not about the lawyer it is about the client.”
The well-being of my clients is my very highest duty as a lawyer, beyond my duty to see that no new harm be done to anyone. Don’t ask yourself what you would want a lawyer to do in this situation, ask yourself what you would want YOUR lawyer to do in this situation.
That’s a pretty clear indication that ethics and morality are very different concepts with only minor overlap.
if logan were to put a bullet in these 2 lawyers i dont thing a jury in the wold would convict him. after all hes already served 26 years,longer than most mourders
What’s the ethical thing to do, here?
Don’t become a lawyer.
What would you do?
Go to the press.
f logan were to put a bullet in these 2 lawyers i dont thing a jury in the wold would convict him.
What about the cops and prosecutors who withheld evidence (ie - the shotgun found at Andrew Wilson’s)?
In the hierarchy of scum, the 2 lawyers aren’t at the top.
There are professions in America which require you to keep real dangerous dark secrets to your grave [and beyond -- no posthumous best sellers allowed]:
priest
defense counsel
intelligence officer / code breaker
engineer on “black” projects
Can’t keep the secrets that come with that job? Don’t take it.
But the jobs need doing. And putting a bullet in the head of a spy who let some innocent people die so that an operation could go forward doesn’t make any more sense than killing defense counsel who kept their own secrets so that the justice system can work.
(now, punishing [murdering?] priests who failed to disclose the confessions of fellow priests who were committing pedophelia …. there’s a thread worth having.)
That’s not a red herring. The entire point of privilege isn’t about protecting the rights of the client/penitent/husband/wife/whomever is on trial. It’s about value judgments that society has made on who can be forced to testify.
See, if a privilege doesn’t exist for a certain member of society, that means they can be subpoenaed. And if you are subpoenaed, there are very real consequences to refusing that subpoena, including prison, because society has determined that it’s more important that there is a fair trial in which all relevant testimony has heard. If you answer and refuse to testify, you can be charged with contempt, and ask Judith Miller how that turned out.
However, in the case of privilege, society has determined that there are certain people whom for it is more important that they not testify. In other words, society feels that a fair trial for the defendant in which all information comes out is less important than what would happen if this person could be forced to testify.
For instance, in some states, there is a husband/wife privilege, because that state determined that the value of harmony between a husband and a wife and the vows of marriage are more important than testifying. Some areas disagree with this, and have removed this privilege.
Attorney client privilege however, protects the 5th amendment itself.
Hypothetical: Let’s say there was no privilege, and the defense knew the defendant was not committing the crime he was charged with on the night in question, but instead, out robbing a bank somewhere. Prosecution decides the defense knows something about the case, the local hangin’ judge agrees and sends out a subpoena. Now, the defense can choose not to testify, and go to jail, and lose his license. Or, he can testify. He testifies that he knows the defendant has told him was not at the scene of the crime. Prosecutor asks, well, where was he then? Since the lawyer now has to answer that question, he says, out robbing a bank. Police say, ‘O RLY?’, and immediately, using this new info, start investigating that robbery. Defendant has been essentially forced into incriminating himself.
Result? No defendant would willingly ever tell his defense lawyer a thing. A defense lawyer would go into every trial blind as a bat, using only the information the police have provided him. He could not mount a competent defense, and no defendant in this country would ever have a fair trial. A fair trial is one of the very bases of our republic. You take that away, and we have nothing in this country. You have a police state.
And yes, bad results happen some time. It is terrible that an innocent man was in prison for so long. But attorney client privilege isn’t the problem here. The system as it stands is.
Oh, and I’m not a criminal defense lawyer. I do administrative work regarding Social Security and Medicaid. I don’t deal much with this privilege, but I understand it’s importance.
I’m sorry this is so long, but this is a complicated issue that many people don’t understand the relevance of, instead presenting the straw man that it “just protects the defendant”. It’s not about that at all. If you consider yourself a libertarian, this privilege is just as important, as anything in the Bill of Rights. In my opinion, it outranks some of them.
Actually, the ethical thing would have been to reveal the confession and take the punishment handed out.
Tybalt> The well-being of my clients is my very highest duty as a lawyer.
No it isn’t. You’ve just *sold* yourself on the idea.
Francis> …so that the justice system can work…
Yes; that’s the important thing: All the ground up bodies in the world don’t matter so long as the “justice system can work”, they say, while the system (corrupt government monopoly on justice) demonstrably does not work — as this site details daily.
Joe,
can you explain how that is the ethical thing? Perhaps it is the moral things, but the ethics of revealing your client’s confidences are pretty significant when viewed in the context of the overall system. Which is what ethics means: how do we want certainly people to act within *a system* so as to make sure the system works as best as possible, even if it may not be the best thing in every scenario, and even if it may force people to be extra careful or cause bad results in the instan case.
And Mike Schneider, what is a lawyer’s highest duty then if it’s not that? Oh and if you say “to see justice done” I reserve the right to electrnically laugh in your face and ask you to move to Europe where they usually don’t have an *adversarial system.*
Oh also, can I point out that this is a question of confidentiality, and not privilege at this point in time. Salvo is right that privilege is about whether a person can be compelled to testify or allowed to testify without the privilege holder’s consent. It’s emant to assure the client going into their first meeting with the lawyer that nothing they say at that meeting will be revealed without their wishing it to be revealed. Privilege is an evidentiary rule.
Confidentiality has a similar intent but it is an ehtical rule that the lawyer must follow. It means a lawyer can not reveal things said by a client in confidence whether it’s in a meeting, negotiations or even a completely informal setting - not just at trial or some other evidentiary hearing.
So, at this stage, the lawyers are bound by the ethical rule of confidentiality, and not privelege.
NickT: As I was trying to point out in my (overly-long) post at 23, the only way that the innocent guy could get useful information into his trial is for the lawyer to do both.
Revealing a client confidence to a reporter does not violate the technical evidentiary rule, because it’s not a court proceeding. It does violate the state bar rule against revealing client confidences. But violating that rule gets you sued, disbarred, and possibly even prosecuted (iirc) and it still doesn’t get the innocent guy out of jail.
To get the innocent guy out of jail, the attorney has to reveal the confession and supporting info to a judge, but the judge CANNOT, AS A MATTER OF LAW, HEAR THAT TESTIMONY, unless the confessor allows it.
Until someone explains how the defense counsel can actually help the innocent guy, I remain completely unpersuaded by the idea that THIS group of secrets-holders have some special duty of self-sacrifice. They can’t and they don’t.
I can only add to Salvo’s reference that once the juries are stacked, we are no longer really innocent until proven guility, and our “justice system” can only lead to a police state - I think we are already there.
If it takes enormous resources to PROVE innocence, the system is broken. If it allows no real penalties for malicious or lazy prosocution, the system is broken. If there is no remedy for providing information and freeing innocent people jail save offering up the guilty party, the system is broken.
A commenter at Volokh made the point that the innocent guy here was not made worse off by the existence of the privilege, since in its absence the guilty man simply would not have confessed at all. It is only thanks to the privilege that he even has a chance of being released now.
Salvo, you are so enamored of your distinction over the value of A-C privilege that you don’t realize how inapplicable your arguments are to the case at hand, which only involves confidentiality. The problem is that the attorneys did nothing at all, not that they refused to testify.