Patterico's Pontifications

3/9/2008

The Tale of the Defense Lawyer Who Knows an Innocent Person Is In Prison — And Doesn’t Say a Word About It

Filed under: Crime,General — Patterico @ 12:40 am

Eugene Volokh quotes a CBS story as follows:

Alton Logan doesn’t understand why two lawyers with proof he didn’t commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn’t commit….

Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan’s arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn’t….

The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.

Volokh states the obvious when he calls this a “very troubling result” but says that the applicable ethical rules don’t allow disclosure. In a separate post, he says that, unlike the majority of his commenters, he doesn’t see violating those ethical rules to be the only ethical choice:

[S]urely it’s not so clear that people have an ethical duty to save another’s life at such great expense. My guess is that if you spent $10,000, you could likely save the life of some sick child in Africa; if you spent $50,000, I imagine this would be even likelier (and perhaps the number is actually a lot less). If you donated a kidney — which will expose you to a roughly 0.03% risk of death, and a slightly larger but still very small risk of complications — you could dramatically reduce a roughly 20% or more risk of death for someone on the kidney waiting list (since that’s how risky it is for him to be on long-term dialysis while he’s waiting for a new kidney). If you find someone who’s near the tail of the waiting list, you might reduce a still greater risk. Yet most of us wouldn’t say, I think, that it’s really your ethical obligation to run such a risk, or bear such a cost, to save a stranger’s life.

Likewise, I don’t think that it’s really your ethical obligation to lose what is likely hundreds of thousands of dollars in future income, by giving up a profession that you spent over a hundred thousand dollars to train for. You might deserve credit for making such a choice (assuming we conclude that the ethical rule you’re violating is indeed unsound). But that’s different from saying that you have an ethical duty to make that choice.

In that post, Eugene’s commenters slam him for allegedly valuing money over a man’s freedom. They also attack his hypothetical as inapplicable because only these lawyers could save the innocent man (well, the actual guilty party himself could have as well), whereas in his hypo, other people could donate the money or the kidney.

But what if they couldn’t? What if only your kidney could save the stranger? Do you have the ethical obligation to give it up?

My take: I’m glad I’m not a defense lawyer, required to follow ethical rules that might be in tension with the imperative of keeping innocent people out of jail. The ethical rules applicable to my profession are designed to be in harmony with that imperative, and that’s a good thing.

And I’d like to think I’d give up that kidney if I were the only person who could save someone — and that I’d give up my job as a defense attorney to save a man’s life from being ruined in prison. After all, it’s not like your career would be ruined — just your career as a defense attorney.

You could still be a prosecutor.

UPDATE: Commenter nk thinks that breaching the ethical duty might get the lawyer disbarred. I don’t think it would, but the possibility is a valid point to consider.

UPDATE x2: DRJ has a good observation: “I wonder if people would feel the same animosity if the person maintaining the confidence were a priest who had been told the secret during confession.”

151 Responses to “The Tale of the Defense Lawyer Who Knows an Innocent Person Is In Prison — And Doesn’t Say a Word About It”

  1. To knowingly let an innocent man sit in prison for 26 years and do nothing is so morally bankrupt, it would seem the ethical question is moot. And for a profession to sanction such a thing is bordering on criminal, in my humble opinion.

    Sara (3337ed)

  2. Sara,
    Not being a laywer, but interested in law, I have been reading here for quite awhile. One of the most telling things I have read here is the quote (which at this hour of the morning I can’t research and attribute properly)–
    “Law is not about justice, it’s about procedure.”
    sadly, that explains it all, no?

    paul from fl (47918a)

  3. Can you practice legal-ethics nullification?

    See-Dubya (0aa657)

  4. Sara, I understand the sentiment. But please let me tell you a little about my experience on a jury.

    When it was all said and done, we did convict, but the one thing I knew was that we were not, indeed could not be, 100% certain that we came to the right decision (“beyond a reasonable doubt” is far from 100% certain). Ultimately, I realized that only God knew, and justice was in His hands, not ours, and certainly not in the judge’s hands. We would never know in this life if justice had been done.

    The judge merely saw to it that procedures were followed. This allowed the man every chance to show us that guilt was not proved. I don’t think that more could have been done, at least in that case.

    It’s not such a bad thing – it’s only the best we can do.

    Joe Buckley (9fbd18)

  5. Time to change the laws.

    Man is being tried for a crime he didn’t commit. A lawyer knows he is innocent because his client actually commited the crim.

    Lawyer is required to inform the judge, defense attorney and prosecutor they have th wrong man. Evidence is provided. Nothing said or provided can be used agains the actual criminal. (Which is why you limit the number of people who actually know the truth)

    Innocent man is released. Judge and prosecutor recuse themseleves from having anything to do with the actual criminal case.

    If it is later determined that the lawyer who provides “the alibi” lied, criminal sanctions can be brought.

    Since police are not told why their case against the innocent person blew up, they can put 2+2 together and figure out that someone came forward with excuplatory information, possible confidential.

    This should all be done under the concept of “Better 10 guilty go free then one innocent be wrongfully imprisoned.”

    In my opinion, our judicial system has moved far away from that concept.

    evilned (429c11)

  6. If lawyers start revealing (even anonymously) what their clients tell them to the authorities, then clients will no longer tell the truth to their lawyers.

    JWG (3a60af)

  7. Sara is right. There is no valid ethical or moral question here.

    Furthermore, for someone to even suggest that there is a decision to be pondered over is simply disgusting. If that is what an education and legal training has brought one to, it has been a wasted life. Please understand that such a person stands outside the company of decent and worthy people.

    Just this morning, I was reading a true account of sailors forced onto a life boat, finding there wasn’t enough space for all. Fifteen healthy men climbed into the waves to provide space for their wounded comrades, and only three of those gallant men survived. Try explaining probabilities and future earnings to those gentlemen.

    You do the right thing, dammit. Mr. Volokh’s monetary calculations give him the stature of a worm. I wouldn’t (knowingly) sit at the same table of such a person, and I’d rather shovel cow manure with honor than be rich, with guilt.

    We are indebted to others for our lives and livelihood. No one knows their purpose and value in this world, and it may be that we were put on this earth for just that one moment of righteousness. You live for justice, and die with honor. Anything else is cheating.

    Sincerely, Peter W.

    Peter Warner (324baf)

  8. HELLO! PEOPLE! WHAT ABOUT THIS MAN’S INALIENABLE RIGHTS? Most notably missing here, LIBERTY!

    I agree with Sara. Which begs the question;

    Is it our legal system or the people within it we should fear more?

    Andy B (caa920)

  9. What Peter Warner said.

    Old Coot (7ed4fa)

  10. Mr. Volokh’s monetary calculations give him the stature of a worm.

    Take it a little easy on the guy please. Every moral decision is an economic one. Money is just the yardstick. Remember that Adam Smith held the position of Professor of Moral Philosophy.

    DSW (82feac)

  11. I have no doubt that the attorneys involved made the ethical decision. I have to admit however that the decision was immoral. If their client was charged for the crime then they’d have a moral obligation to say nothing. He was not. The falsely imprisoned man has no moral right to lock the attorneys in his basement for a quarter century, but it appears he has an ethical one.

    Isn’t it strange that whenever an attorney wants to make an immoral decision he is justified by legal ethics?

    Ken Hahn (7742d5)

  12. ethical rules that might be in tension with the imperative of keeping innocent people out of jail

    Guilty people too.

    Didn’t we already discuss this case, here, a while back? There was a fair, but not unreasonable, amount of risk to the lawyers and only slight risk to their client. His confession to them would never have been admissible against him. (The slight risk would come from the application of “inevitable discovery” were the police to use the confession to develop additional evidence.)

    They could have asked for an in camera conference with Logan’s judge and prosecutor and let them wrestle with their ethical obligations and Brady v. Maryland.

    nk (5ce644)

  13. There is no easy answer. Moral answer versus ethical requirement is good for a debate but won’t solve anything.
    What do the lawyers here suggest as a way to prevent this in the future?

    http://www.innocenceproject.org/know/
    is a pretty interesting organization that in 214 cases to date proved that a wrongful conviction occurred. They have caused the creation of “innocence commissions” in several states. While this organization is mostly focused on DNA evidence do these commissions offer a potential avenue for avoiding what happened to Logan?

    voiceofreason2 (8db16c)

  14. Our host wrote,

    I’m glad I’m not a defense lawyer, required to follow ethical rules that might be in tension with the imperative of keeping innocent people out of jail. The ethical rules applicable to my profession are designed to be in harmony with that imperative, and that’s a good thing.

    The rules that govern defense counsel are also designed to be in harmony with that imperative, but one admittedly has to see the big picture — across tens of thousands of ordinary cases, not just in exceptional ones like this one — to feel confident of that.

    Beldar (433d17)

  15. welcome to the world of “legal ethics”.

    Just another reason why we don’t trust lawyers nor the legal system that they created.

    martin (86a2e8)

  16. Most legal issues do not have an easy answer VOR2. That’s why lawyers are supposed to be intelligent, knowledgeable and resourceful. The “trick” I mentioned above is nothing new and it is only one way of several to deal with client confidence conflicts.

    On your other question, more important than the Innocence Commissions is the change in the law that created the actual innocence exception to the finality of judgments rule. It may have started in Illinois, with a rape victim who recanted her testimony against the prisoner. There was no judicial avenue — all appeals and limitations had expired. The governor convened the parole board to “retry” the case — actually “retry” — with the State’s Attorney and the defense attorney presenting sworn witnesses, evidence and argument.

    nk (5ce644)

  17. Why should I believe what these scheming lawyers are saying today?

    If this scheme works we’ll see lawyers everywhere helping out their lawyer friends by claiming that their recently deceased client confessed to this crime and that crime. We can empty the prisons pretty quick this way.

    j curtis (c84b9e)

  18. you could still be a prosecutor.

    is this really true? how does the state bar feel about breaching confidentiality, does it suspend or disbar people from the practice of law, or just from criminal defense? i look at the discipline summaries every month in the bar tabloid to see if there’s anyone i know, and i don’t recall ever seeing someone disbarred from criminal defense.

    assistant devil's advocate (f1cc7c)

  19. I would hang draw and quarter any man that let an innocent person be sent to jail for a crime that they knew he did not commit.

    I would sleep well knowing that such scumbags were gone from this world.

    Curtis

    Curtis (e21caf)

  20. Thanks for the reply NK.

    voiceofreason2 (8db16c)

  21. Breaching confidentiality for personal gain will get a lawyer disbarred. And “confidentiality” includes any trust the client has in the lawyer and “breach” includes the lawyer having a sexual relationship with the client. But I don’t think that disbarment would have been a strong possibility in this case given the exigency of the situation if the PDs had acted circumspectly.

    nk (5ce644)

  22. Will some lawyer please explain why it is important to the attorney that his client tell the truth? If the client lies to his attorney and is convicted because the attorney cannot put on a winning defense because of the lie, whose problem is it?

    If I have to hire an attorney, I’m going to tell the truth because it is in my self-interest, not the attorney’s.

    tmac (f985e6)

  23. That is only one of the rationales, tmac. Like I said in my #21, it is a strong rule in order to prevent the attorney from using his client’s confidences to screw the client in any way. What if, in this case, the PDs did not really give a rat’s behind about Logan but were running for judgeships and thought that it would make them look good to be seen as advocates for justice if they snitched out their client?

    nk (5ce644)

  24. #8 Rules.

    Except it isn’t a justice system anymore, it is a legal game, where the only guarantee is that lawyers will get paid. Alot.

    Quite frankly, when did it become OK for someone to lie in court just because they passed the Bar? If your client tells you he is guilty, you tell him to find another lawyer.

    martin (86a2e8)

  25. BTW: The attorney-client privilege is a rule of evidence. The ethical obligation is safeguarding the confidences and secrets of the client regardless of whether the lawyer is called upon to reveal them or not. (If I remember correctly from the Ollie North hearings, the U.S. Congress does not recognize the attorney-client privilege.)

    nk (5ce644)

  26. A rule of evidence doesn’t outrank the right to life, liberty etc, nor the right to a fair trial. We are reaching a point where journalists and lawyers both claim the right to be dishonest when it is in their self-interest (usually financial), and the people need a way to fight back.

    martin (86a2e8)

  27. #2 “Law is not about justice, it’s about procedure.”

    I was troubled by the implication of this quote; that law is just procedure, it ignores justice.

    This is ridiculous, of course. The legal system we have today is one that has been fought over, and died for, over centuries to provide a “rule of law” that gives us as much justice as possible. Our men and women are dying in Iraq today to help the Iraqi’s secure a legal system that incorporates a “rule of law.”

    Remember that the opposite of the “rule of law” is the “rule of men.” Plato wrote of the ideal “Philosopher King,” who would rule with wisdom and justice. Hard experience has taught us, as Lord Acton wrote, “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”

    So, our entire legal system since the Magna Carta in a very real sense has been to build a system of rules that gives as much justice as possible while protecting us from the arbitrary exercise of power.

    No system of law is perfect, but is always a struggle to devise a system that is as just as possible; and always way better than the alternative.

    You see this argument going right now in the debates over the legal system to be used in trying the prisoners in Guantanamo.

    You see it in “determinate sentencing,” where the system had been designed for centuries to allow a human being, a judge, to make a final, considered judgment as to the fate of a criminal in the interest of seeking “justice” over “procedure.” Too many thought the decisions being made were not just and so we switched to a more “procedural” sentencing system with the hope that it would provide more “justice.”

    You see it in arguments over Governors and Presidents providing clemency and granting pardons.

    You see it in Comment #16, above, in the discussion of the creation the actual innocence exception to the finality of judgments rule.

    Of course, law is procedure. It’s the best procedure we have built to provide as much justice as possible, and it is constantly being worked on to improve on it.

    To take one incident of injustice, as is done here, and is done so often, and to use it to denounce lawyers, judges, the entire legal system is just foolish and unthinking.

    I expect better on this site.

    JayHub (0a6237)

  28. I see a lot of self-righteous moralizing by those who don’t like what the defense attorney did ( although as mentioned, what his client did was rather obviously more culpable ).

    But I don’t see any of the self-righteous actually confront the core reason for the rule against disclosure of confidences of a client: that if clients could not confide in their attorney, their attorneys could not do as good a job for them. The attorneys who did not disclose were not merely motivated by a reluctance to be punished for a violation of a strange ethical rule that stood without any justification. Attorneys understand the actual reason for the rule and whether or not they are comfortable with the resulting dilemma’s ( which arise very rarely in reality ), and whether or not they might see theoretical situations in which the dilemma becomes too costly to uphold, they understand it.

    It would be nice if those with self-righteous moralizing tried to understand it too.

    You would indeed solve the dilemma by requiring attorneys to disclose such confessions by their clients – because clients would not disclose. Viola, no dilemma.

    SPQR (26be8b)

  29. The rules that govern defense counsel are also designed to be in harmony with that imperative, but one admittedly has to see the big picture — across tens of thousands of ordinary cases, not just in exceptional ones like this one — to feel confident of that.

    Beldar, I respect you and your viewpoint, but I don’t agree in this instance. The imperative we are discussing is “keeping innocent people out of jail.” That’s not a defense attorney’s imperative; his imperative is to represent his client within the law.

    For example, say there is a two-defendant trial and the evidence is rock-solid that both defendans were in the car, but it’s questionable which one was the shooter. The evidence is clear there was only one shooter. The evidence also points to your client being the shooter, but you have a colorable argument that the co-defendant was the shooter. The imperative to keep the innocent out of jail mandates that you argue to the jury according to the evidence: your client was the shooter and should spend more time in prison. But the imperative you must follow is the ethical obligation to defend your client, and so you will argue that the other defendant was the shooter.

    I respect defense attorneys and what they do, and I accept the argument that their function is necessary to the proper working of the system. But that’s different from saying that their imperative is keeping the innocent out of jail. We have to be honest about the fact that what they do is not designed to be in complete harmony with that imperative. They are there to represent their clients.

    Patterico (4bda0b)

  30. To take one incident of injustice, as is done here, and is done so often, and to use it to denounce lawyers, judges, the entire legal system is just foolish and unthinking.

    I expect better on this site.

    You are referring to the commenters and not the post, I take it.

    I see a lot of self-righteous moralizing by those who don’t like what the defense attorney did

    Yeah, I think that those who argue in favor of disclosure should take seriously the ethical dilemma involved, and the need for criminal defendants to feel they can trust their lawyers. Certainly a lawyer giving away someone’s confession to a murder would do significant damage to that feeling of trust.

    I sort of think it’s not completely there, anyway. Defense attorneys, how commonly do your clients tell you they didn’t do it when it’s clear they did? I believe that is not at all uncommon.

    Patterico (4bda0b)

  31. Yes, Patterico, but the whole function in the legal system of the defense attorney’s imperative to represent his or client is to keep innocent people out of jail. It’s a judgment that overall we will send fewer innocent people to jail if the accused have procedural rights and are adequately represented. Sure, you can find individual cases, where the function of the defense attorney results in injustice, but remember our system defaults in favor of keeping innocent people out of jail even if that means a number of those who are guilty are set free. That’s the price. You could certainly design a system where everyone who was guilty went to jail, only an accusation by someone with power needed, but I for one would not want to live under it.

    JayHub (0a6237)

  32. I have criminal defense attorney friends who have told me that certain clients of theirs have — completely credibly — sworn to their innocence right up until a guilty verdict. The defense attorney believed them, and fought hard to get an acquittal.

    Then, when found guilty, the clients admitted their guilt, and said they thought that their attorney would fight harder to get them off if they believed they were innocent.

    So even the clients who the defense attorneys truly believe are innocent may be guilty, and the attorney knows it. With that sort of knowledge of your own fallibility, having your mission be “make sure the innocent go free” rather than “represent my client the best I can” would be a pretty difficult role to play.

    Phil (0ef625)

  33. JayHub,

    To take one incident of injustice, as is done here, and is done so often, and to use it to denounce lawyers, judges, the entire legal system is just foolish and unthinking.

    I expect better on this site.

    I don’t think this is a denunciation of the entire system, but a recognition that it is imperfect. We should be recognizing that and taking steps to correct the problems where we can, some of which is done in the ways you describe.

    Pablo (99243e)

  34. I’m beginning to think that it is the process, itself, that is flawed. We have advocates for conviction and advocates for acquittal, but no advocates for “who really did the deed” and no advocates for justice (which I see as being a different thing than mere acquittal or conviction.)

    I would hate to be in the position of those defense lawyers. I think I would be telling myself every night, in my prayers, that I didn’t really know that my client had done the murder, only that he claimed to have done it.

    htom (412a17)

  35. It’s a judgment that overall we will send fewer innocent people to jail if the accused have procedural rights and are adequately represented.

    There are other values that factor into the equation besides innocence. Take the Fourth Amendment, for example. We have an exclusionary rule that isn’t justified by reference to guilt or innocence; the justification is protecting privacy rights by imposing a penalty when they are violated.

    Defense attorneys who can keep out evidence that points to their client’s guilt, but that was obtained unlawfully, will do so every time. That has nothing to do with guilt or innocence. It has everything to do with representing their client. I’m not blaming defense attorneys for it. I just don’t want to pretend that their ethical duties are in complete harmony with keeping innocent people out of jail, because they’re not.

    Patterico (4bda0b)

  36. #28, SPQR: Not to put too fine a point on it, but screw you, pal. There are some things that just don’t allow for equivocating and dithering and trying to decide how many angels can dance on the head of a pin. There is no moral debate here. I don’t give a rat’s ass about the niceties of the bar rules in this particular case. Calling that position “self-righteous moralizing” is beyond obtuse.

    CraigC (802489)

  37. We have advocates for conviction and advocates for acquittal, but no advocates for “who really did the deed” and no advocates for justice (which I see as being a different thing than mere acquittal or conviction.)

    Prosecutors, when they do their jobs right (and they usually do) are precisely that: advocates for justice. Every single one worth his or her salt can tell you stories about cases they dismissed because they didn’t believe the evidence was there.

    Patterico (4bda0b)

  38. “I’m beginning to think that it is the process, itself, that is flawed.”

    I absolutely agree. It is a terribly flawed system.

    In my opinion we would be far better off if everyone would admit that. Now, how do we fix the flaws? Well, the answer is, the flaws come from the fact that the system is made up of human beings, who are not all-knowing or all-seeing. No one knows the absolute truth of anyone else’s guilt or innocence.

    Thus, the system is flawed, but we have no means of correcting its flaws, because we can’t stop being human beings. The best we can do is acknowledge those flaws. And not be blinded by some idealistic mind game that everyone in jail is truly guilty, or that everyone who is acquitted is truly innocent.

    And it has to be an acknowledgment on both sides. Not just by defense attorneys, and not just by prosecutors. Everyone has to recognize that mistakes are made, because we’re human.

    It’s this failure to admit the flaws in the system that causes injustices (which are inevitable) to be prolonged unnecessarily, as people pretend that their system is in fact virtually infallible. So you get tremendous resistance to appeals, re-opening of cases, and enforcement of defendants’ rights.

    Phil (0ef625)

  39. CraigC,

    That’s is indeed self-righteous moralizing, and while I agree with your conclusion that disclosure is preferable, the tone doesn’t really help. The best debate recognizes the ethical issue and tries to deal with it on a serious level.

    People have to recognize the need for defense attorneys in our system. If you’re dismissive of them, their role, and their duties, it makes for some fun soapbox speeches, but it doesn’t really advance the debate, in my opinion. Self-righteousness rarely does, actually.

    And whether you buy that or not, I ask simply that one commenter not say “screw you” to another commenter who is always unfailingly polite and well-intentioned. No matter how strongly you feel about the underlying issue.

    Patterico (4bda0b)

  40. When did saying that leaving an innocent man in prison for 26 years become “self-righteous moralizing?”

    CraigC (802489)

  41. ….is wrong….

    CraigC (802489)

  42. And I don’t feel the need to be polite to such a person.

    CraigC (802489)

  43. The overriding imperative for all attorneys, across the board, is the exercise of independent professional judgment on behalf of the client which is independent from the judgment of the client himself. All the other rules are subsumed in it. Which is not to say that the clients’ wishes in this case, not to reveal the information before he died, were not very important. But they were not the final word.

    nk (5ce644)

  44. Craig, the problem is ths: It truly isn’t a very long step from “Revealing information that implicates my client but frees an innocent man” to “Revealing information about my client that implicates him because someone getting away with a crime is wrong”.

    Scott Jacobs (d3a6ec)

  45. I would argue that the problem is in the legal system itself. The ethical principles in this case only admit two choices, to follow or to violate the principle of attorney-client privilege.

    The system should admit a compromise choice that resolves the dilemma. For example, a compromise that would allow the defense attorneys to bring the matter before an impartial judge. The judge should have the authority to absolve the defense attorneys of ethical violations and to seal the identity of the client and make use of the confession inadmissible in any proceedings against the defense attorneys client. Of course the judge could also rule against divulging the confession but, it provides a check against travesties like this one.

    Chuck (394d84)

  46. Here’s the problem. Those who side with the two lawyers in this case believe themselves a good person and justified in doing so. Those who oppose what the two lawyers reportedly have don’t, letting a man rot in jail for 26 years, think themselves a good person and justified as well. Putting all the legal jargon aside; The question should be, what is right and what is wrong?

    Too often, a person who thinks of himself a good person only does so out of selfish desires. One could even argue that the two lawyers probably think themselves good people for doing what they did. But that doesn’t mean they were right. Just as those condemning the two lawyers probably think they are good people for standing up for the injustice in this case.

    Here’s the problem with both groups. Good people don’t think they are good people. They usually don’t think of themselves as righteous in the sense some commenter’s mentioned above. And to muddy the issue in this case with technical mumbo jumbo askews the more important issue. What’s right and what’s wrong.

    Clearly the two lawyers are wrong in every conceivable way. Unless you pride yourself on blurring the difference between right and wrong.

    The fact that this issue has two arguments speaks more to the degradation of our society than it does about our legal system. Remember, we are the legal system.

    Andy B (caa920)

  47. I’m the one who talked about the law being about the process and not justice. I thought I made it clear that the theory is good procedures are more likely to lead to justice, so justice is the ultimate goal but not the method.

    It’s easy to say “We want justice” but it’s hard to deliver justice day-in and day-out. Do we just take everyone’s word for what happened? Do we refuse to judge anyone for fear an innocent person may be convicted? Those options don’t work in theory or practice.

    What the Anglo world has learned through hundreds of years of experimentation is that justice is arbitrary if it is based on human perception. Relying on fair, consistent, tested procedures is ultimately a better way to obtain real justice.

    Finally, people in the criminal law arena aren’t always truthful and they even have been known to confess to things they didn’t do. I think it’s true that Alton was innocent and the lawyers’ confidences ended up shielding the responsible person, but real truth is not as clear as TV or blogs make it seem.

    DRJ (a431ca)

  48. On a personal level, I agree with JayHub’s comments. However, I hope I would breach the confidence to help Alton win his freedom, even if it cost my bar license. I also know I would think long and hard about it and look for any possible way to help Alton and still do what I’m ethically and morally required to do — keep my client’s confidences.

    I wonder if people would feel the same animosity if the person maintaining the confidence were a priest who had been told the secret during confession.

    DRJ (a431ca)

  49. Andy B and everyone else who thinks this is a super-easy question:

    1) Do you think that defense lawyers are always obligated to disclose their clients’ confessions?

    2) What if they believe that the client is violent and is likely to commit more crimes if let go?

    3) Specific hypo: lawyer asks client: “Did you do the drive-by?” Client says: “Damn straight. I do drive-bys every weekend. That’s the gang lifestyle, and I’m in it for life.” Clearly, if the lawyer gets him off, the defendant intends to continue doing drive-bys. Someone is likely to be hurt or killed.

    Is there any debate in your mind about whether the lawyer must violate his ethical duties and disclose this confession?

    Patterico (4bda0b)

  50. You can’t make an omelette without breaking some eggs.

    Am I right?

    How many more people went to prison who deserved it because this one guy went to prison despite the fact that he didn’t deserve it?

    Besides, how do we know that he was really innocent and this isn’t just an elaborate set up?

    Jaybird (f420c4)

  51. Patterico– To answer your questions, No. Yes. No.

    On number three, if his client, “da gangsta” didn’t commit a drive-by but was convicted of one anyway and his attorney then represented another “gangsta” who admitted to him later that he was the one who did the crime the first “gangsta” was in jail for, I’d expect him to free the innocent man by any means necessary. Unless, of course, his career means more to him than one innocent mans freedom.

    Besides, how is he to help other innocent people get justice if he looses his job. Right? Wrong! If his job becomes more important to him than doing the right thing the judicial system itself will start to reflect this decomposition of truth, which it already has.

    I’ve specifically zeroed in on this one, cut-n-dry case. These two attorney’s made another fundamental flaw in their decision to stay silent. [Aside from depriving a man of his inalienable right to liberty, of course.] They’ve casted “more” doubt on the legal system than there already was.

    Heck, what are we to think when two criminal defense lawyers sat on information for 26 years that would have freed an innocent man? And how many more of these types of cases are out there?

    Like Mike Nifong did to prosecutors, so will Lawyers Jamie Kunz and Dale Coventry do to criminal defense attorneys. I hope I’m wrong.

    Andy B (caa920)

  52. Prosecutors, when they do their jobs right (and they usually do) are precisely that: advocates for justice. Every single one worth his or her salt can tell you stories about cases they dismissed because they didn’t believe the evidence was there.

    I wish I were as confident about that as you are.

    Pablo (99243e)

  53. No snark in this next part:

    My biggest problem is that I suspect that the more things like this come out, the more contempt for the law we will see.

    Already, we see contempt for the law with regards to the drug war. If a presidential candidate gets up there and says “Yeah, when I was young and stupid, I was young and stupid”, we all smile sagely and nod and remember back to when we did such things (but, thankfully!, do not any more) and offer up thanks that we did not get caught.

    And when someone does get caught, our immediate assumption is that “Man, he must have been really blatant and/or really dumb” because, hey, if you’re smart, you’ll never get caught.

    And we hold the law in contempt.

    And we see stuff like Nifong or this, and we come to the conclusion that things like this happen all the time and Nifong was just really blatant and/or really dumb.

    We all know someone who breaks the law quite regularly. Heck, it’s probably us regarding the traffic laws, or maybe we have friends who smoke a little on the weekends, or have a nickel/dime/quarter poker game in the VFW hall on Friday nights.

    And when we hear about people getting busted for doing these things, we think “man, those people must have been really blatant and/or dumb”.

    And we gain just a little more contempt for the law.

    Jaybird (f420c4)

  54. I wonder if people would feel the same animosity if the person maintaining the confidence were a priest who had been told the secret during confession.

    One distinction, the priest is almost asuredly going to do his best to convince the guy to turn himself in, whereas the lawyer, not so much. As for the privilege, I’m not terribly keen on either of them.

    Taltos (4dc0e8)

  55. 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. Hell interview them after a month in the same cell as the guy they put away.

    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!

    I wonder how big the lawsuit will be for and we all know who will be paying the judgment right?

    TC (1cf350)

  56. Reality it’s way too simple, take the now former PD’s and throw their asses in jail for the next 26 yrs.

    Well, there you have it. TC is actually fine with committing someone to prison for decades even if they have broken no law — as long as he really doesn’t like their conduct.

    Patterico (4bda0b)

  57. Andy B,

    You have opined that lawyers have an obligation to reveal their clients’ confessions “if they believe that the client is violent and is likely to commit more crimes if let go.”

    You realize that covers a lot of people, right?

    Patterico (4bda0b)

  58. Patterico: Prosecutors, when they do their jobs right (and they usually do) are precisely that: advocates for justice. Every single one worth his or her salt can tell you stories about cases they dismissed because they didn’t believe the evidence was there.

    Pat’s right. One of my colleagues dismissed a case mid-trial when the victim’s testimony made him doubt that the defendant was the perpetrator.

    And I can’t tell you how many times I’ve rejected a case for filing, simply because, after reading the conflicting stories of the suspect, the victim, and the various biased witnesses, I had no idea who’d committed the crime — or if any crime had actually occurred.

    Every criminal complaint in California is signed by the prosecutor under penalty of perjury; he swears that he believes the accused to be guilty of the crimes stated above his signature.

    Notwithstanding former-prosecutors like Mike Nifong (of the Duke scandal), DAs take their responsibility seriously. For us, it’s all about truth and justice, the guilty paying and the innocent going free.

    I’ve told juries during closing argument, “If you think the defendant didn’t do it, then, by all means, please vote “Not guilty.”

    That’s the beauty of being a prosecutor: if you’re playing by the rules, the job involves absolutely no moral compromises, no shades of grey.

    Mike Lief (e6260e)

  59. Patterico–
    You asked me, “You realize that covers a lot of people, right?” Thats the more reasons to get started.

    But seriously, if a lawyers clients’ confessions gave him reason to believe that said client is violent and is likely to commit crimes “against the lawyers children” would he turn that client in, despite ethical restraints?

    Andy B (caa920)

  60. I don’t dislike lawyers. In fact, I wanted to be one before I wanted to be a cop, before I wanted to be a G-Man, right before I joined the Army. Hehe…

    Andy B (caa920)

  61. I wonder if people would feel the same animosity if the person maintaining the confidence were a priest who had been told the secret during confession.

    Priests are not officers of the court.

    Render unto Caesar, etc.

    Shad (8a933a)

  62. But seriously, if a lawyers clients’ confessions gave him reason to believe that said client is violent and is likely to commit crimes “against the lawyers children” would he turn that client in, despite ethical restraints?

    Most lawyers I know wouldn’t.

    Patterico (4bda0b)

  63. Lawyers get threatened by their clients, you know.

    And attacked by them, too.

    Patterico (4bda0b)

  64. Ok. A long time ago, I had a client about to get out of prison who told me he intended harm to the complaining witness when he got out. I got an opinion from the Attorney Registration and Disciplinary Commission that although it may not be mandatory disclosure, it was permissible disclosure. On the other hand, my disclosure might cause him to stay in prison for up to another three and half years. I called his prosecutor and talked around the fact that my client was being released. He caught on. He asked me if I wanted to call the complaining witness myself and gave me her phone number. I called her and without saying a word about the threats told her the date my client was getting out and if she felt she needed protection in addition to the police to also call the prosecutor. She caught on too.

    If there’s a point to the foregoing, it’s the comment I nade earlier — that lawyers are supposed to find solutions to thorny legal problems.

    nk (b410db)

  65. Isn’t the real question, shouldn’t the rules be changed? Or some way around them be devised? Perhaps there could be a special court where the 2 lawyers could present their information in secret and, if it is sufficiently persuasive, this court could somehow allow the innocent man to go free without revealing the identity of the person whose confidences we are protecting. I understand that there are issues – like the authority of the original court – but surely they can be worked out.

    Mahon (33b060)

  66. Patterico– I don’t advocate attacking or threatening lawyers or anybody. Just thought I’d throw that out.

    I just happen to think there are more important ideals and principles that one should adhere to than traditionally constructed ethical restraints when it comes to a clear case such as discussed in this thread.

    Andy B (caa920)

  67. I respect nk. #63 has my vote. You must be a conservative. (?)

    Andy B (caa920)

  68. Andy B,

    I totally sympathize with your point — and as I have said, I’d like to think I’d risk losing my license to make the disclosure in this case. The idea of throwing away an innocent man’s life for a principle like this would, I think, weigh too heavily on me.

    But I don’t think it’s necessarily as easy a question as some have portrayed it.

    Patterico (4bda0b)

  69. Patterico–

    You’re right. We have the absoluteness of 20/20 hindsight to lean on. We all know what we’d do NOW. Right? But what we don’t know is how we’d perform under pressure. I, like you, would like to believe I’d do the right thing. But without ever being in that situation, all I can do now is prognosticate on events foretold.

    Andy B (caa920)

  70. Mahon #64,

    See my comment #12.

    nk (b410db)

  71. so its okay to conceal knowledge of a crime if it helps to advance my career? cause thats all these guys did. they let a code of professional conduct trump personal ethics so they wouldnt have to find another job. and how hard would it be? they are obviously highly educated men. also i think its a plus when in a job interview you can say you lost your last job because you wouldnt stand by and let someone go to prison for a crime he didnt commit. i bet a lot of employers would be impressed w/ that sort of integrity.

    chas (fb7ad4)

  72. there is also no guarantee that even now this guy will get out. the real perp is dead and even when alive didnt come forward. do these lawyers have some evidence other than the confession? if not its an uphill battle since a confession from a dead man sure looks awfully convenient in these circumstances. surely the prosecutor had more than just a “tip” to convict the guy so overturning cant be too easy in this situation.

    chas (fb7ad4)

  73. i bet a lot of employers would be impressed w/ that sort of integrity.

    It probably depends on the industry, and I could see the imperative to blow the whistle at the expense of one’s professional duties cutting either way.

    Volokh’s hypos are interesting, albeit the standard utilitarian objections. The standard rejoinder to Volokh’s objections (I’m a utilitarian myself, and inclined to agree with EV; I offer the following for informational purposes only, and not in the interests of persuasion) is that there is some special duty that arises out of one’s proximity to the event. ie, where one is uniquely situated to prevent an injustice, one ought to.

    jpe (bd88bc)

  74. CraigC: “When did saying that leaving an innocent man in prison for 26 years become “self-righteous moralizing?”
    ….is wrong….

    And I don’t feel the need to be polite to such a person.”

    It became so when you ignored the entire rationale for the rule you are so carelessly moralizing about.

    chas: “so its okay to conceal knowledge of a crime if it helps to advance my career? cause thats all these guys did.”

    Nope, completely misrepresents the situation. Simplistic formulations like this are not really discussing the issue.

    SPQR (26be8b)

  75. #55 Reality it’s way too simple, take the now former PD’s and throw their asses in jail for the next 26 yrs.

    Well, there you have it. TC is actually fine with committing someone to prison for decades even if they have broken no law — as long as he really doesn’t like their conduct.

    And Patt is more than willing to put a man behind bars for half his life for a crime he did NOT do for the purposes of serving the legal industrial complex vs. insuring JUSTICE!

    See how well two wrongs make a right? :)

    Is wrongful prosecution not a crime?

    Or is that just a civil blemish that is supposed to disappear?

    Smile Patt, life goes on for most. :)

    TC (1cf350)

  76. TC sez:

    And Patt is more than willing to put a man behind bars for half his life for a crime he did NOT do for the purposes of serving the legal industrial complex vs. insuring JUSTICE!

    Time to hone those reading comprehension skills, Sparky. I said the exact opposite in the post:

    I’d like to think I’d give up that kidney if I were the only person who could save someone — and that I’d give up my job as a defense attorney to save a man’s life from being ruined in prison

    Now that we’ve established how blatantly you misrepresented my position, let’s talk about yours. You would throw these lawyers in prison for 26 years, on the strength of this compelling argument: “Is wrongful prosecution not a crime?”

    Yup. Of course, these lawyers didn’t commit it. But you don’t really care about that little detail.

    Patterico (4bda0b)

  77. Its such a small detail, Patterico.

    SPQR (26be8b)

  78. Shad #60 – I don’t see the distinction. I realize these lawyers have a legal duty not to reveal client confidences but the priest has a similar duty under church law. Anyway, this discussion has become more about morality than law.

    DRJ (8b9d41)

  79. After reading EV’s & Patterico’s posts and ensuing comments here, my question would be: how can this possibly not be more about morality than the law?

    Dana (b34c3d)

  80. Dana, because it is really about protecting the attorney-client relationship.

    SPQR (26be8b)

  81. If the lawyers are legally forbidden to disclose the facts, then the law should allow for the guilty party to confess under an immunity deal.

    True, the killer walks away scott free (but then he already had anyway), but at least it avoids adding injustice (the punishment of an innocent man) to injustice.

    clark smith (151f0f)

  82. Shad #60 – I don’t see the distinction. I realize these lawyers have a legal duty not to reveal client confidences but the priest has a similar duty under church law.

    This man was not sent to prison by the church for violating church law.

    Is the distinction clearer now?

    Shad (8a933a)

  83. That’s not a distinction, Shad, priests receive confessions of crimes too.

    SPQR (26be8b)

  84. SPQR, I understand that and perhaps I am not expressing myself clearly but I mention the morality issue because it would seem that the issue of law (and confidentiality of attorney/client) is infused with and based somewhere upon a moral code. They are not mutually exclusive. I just wonder where the morality of the individual attorney supercedes the letter of the law? Is that strictly up to the individual – what can he/she live with, how well can they suppress their own conscience? Or is there a standard wherein it becomes obvious that for the good of the system (and the client) the prvilege has become a liability?

    *I am not a lawyer but these questions of ethics reach all walks of life at some point in time. This is why I ask.

    Dana (b34c3d)

  85. Good point, Clark #81. A question to the prosecutors here. Would you honor the tacit gentleman’s agreement I made with the prosecutor in my #64 (formerly #63) in Logan’s case?

    nk (5ce644)

  86. Dana, the exact boundaries of the priviledge vary slightly among different versions of the ethical rules, but in general outside of a very narrow exception for the prevention of future crimes, the standard is that the priviledge is absolute.

    The confidence that was exchanged does not belong to the attorney, it belongs to the client.

    SPQR (26be8b)

  87. I just wonder where the morality of the individual attorney supercedes the letter of the law?

    The morality of the individual attorney, in his professional capacity, is bound inextricably with the law. It could even be said that the law is his morality. Otherwise, he is no longer an attorney but a legal scholar. He could be the best law professor in the world but he is not qualified to represent clients or be a judge or be even the lowliest of administrative hearing officers.

    nk (5ce644)

  88. I don’t think this is moralizing. It really is about justice. To have only 2 choices, one say nothing and let an innocent man rot in prison, or two, speak out and risk being disbarred and lose one’s livelihood, is not justice. There needs to be a third choice that allows for an avenue of disclosure. Whether this is a judge’s panel ruling, or some other, I leave to the legal experts, but to base it on some projected loss of income for the attorney adds insult to the injury of injustice already in place.

    This should not be a sanctioned injustice by the Bar. Attorneys, prosecutors or defense attorneys, should not ever be put in a position where so-called professional “ethics” trumps justice and right.

    Sara (3337ed)

  89. Note that violating the ethics rules doesn’t just cost you your career. It also costs the profession the fact that you have ethical rules — in this case the one in favor of confidentiality.

    Let us remember that if enough lawyers did this, and then there was no effective ethical rule, then clients wouldnt be confessing to their lawyers. And the innocents would still be jailed.

    Anyone that feels like they can’t follow the ethical rules of their profession — be they doctor, lawyer or pharmacist — should not be taking on clients, because the client is expecting that the rules be followed.

    stef (4a7d71)

  90. “Attorneys, prosecutors or defense attorneys, should not ever be put in a position where so-called professional “ethics” trumps justice and right.”

    The ethical rules attempt to carry out “justice”, they just have more things to consider than simplistic views of a single case. The ethical rules recognize the tension between competing goals and have chosen to carry out the goals that are viewed as for the good of everyone.

    SPQR (26be8b)

  91. Clark’s #81 is tempting but wouldn’t that encourage criminals to frame some innocent person for their crime, and then get off when they “exonerate” the patsy?

    Then again, maybe I’ve been watching too much crime TV.

    DRJ (a431ca)

  92. The First Law of Criminal Lawyering

    A criminal lawyer may not seek the conviction of an innocent person; nor, through inaction, allow the conviction of an innocent person.

    The Second Law of Criminal Lawyering

    A criminal lawyer may not disclose a confidence related by a client, except where such non-disclosure would violate the first law.

    Alan Kellogg (bf68d4)

  93. Heh, DRJ! Remember the exception to the dying declaration exception to the hearsay rule? A convict about to be executed confessing to any number of unsolved crimes?

    nk (5ce644)

  94. NK,

    At this stage in my career, the closest I come to remembering criminal law is reading about it here and watching it on TV.

    However, I believe a dying declaration is an exception to the hearsay rule but an inmate’s dying declaration – standing alone – will not exonerate another prisoner unless it is corroborated. Otherwise, there would be a surfeit of dying inmates trying to exonerate their buddies.

    DRJ (a431ca)

  95. This case is being covered on 60 Minutes tonight.

    Dana (b34c3d)

  96. DRJ # 94,

    Exactly.

    nk (5ce644)

  97. But the prosecutors have not spoken. I am not asking for transactional immunity. I am asking for something close to use immunity. “What’s it worth to you not to send an innocent man to life in prison or to the gurney? Is it worth enough not to pursue the lead I am about to give you? Even if it means that a horrible crime will go unpunished? Or do you believe that for every crime there must be a punishment? Regardless of whether the punishment is imposed on someone other than the perpetrator?”

    nk (5ce644)

  98. Patt, I’ve got a 16 oz bladder, I can only suppose yours might be larger, I really don’t care, this is not a pissing match, really.

    The subject was lawyers withholding information from the court that could prevent an innocent man from spending his life in prison. Kidneys are but another patterico hypo, (could be dermic or thetical), pick your drug.

    To hell with your kidney, would you give up 26 years of your life starting today because you applied the rules of the system over the ethical/moral issues, and knew about it at the time?

    DRJ mentioned something about Morals vs. ethics, though different, are they really? Actually strong morals lead to good ethics, and one practicing good ethics usually has strong moral values as well. Too many lawyers, IMHO, seem to loose both, if they had any to begin with, over time for a vast array of reasons.

    “#35

    There are other values that factor into the equation besides innocence. Take the Fourth Amendment, for example. We have an exclusionary rule that isn’t justified by reference to guilt or innocence; the justification is protecting privacy rights by imposing a penalty when they are violated.”

    A) Justice can’t be served if someone is looking for factors besides innocence. B) the fourth amendment is almost gone in this country, and once again a single industry rises to the top in mucking it up.

    “Defense attorneys who can keep out evidence that points to their client’s guilt, but that was obtained unlawfully, will do so every time. That has nothing to do with guilt or innocence. It has everything to do with representing their client. I’m not blaming defense attorneys for it. I just don’t want to pretend that their ethical duties are in complete harmony with keeping innocent people out of jail, because they’re not.”

    Prosecutors will do all in their power to keep exculpatory evidence from being introduced as well. (Should I dare add that such happens 100% of the time as you did for the other side)? I won’t because I know there are some honorable folks serving as DA/DDA and such.

    What is seemingly comming to greater light is what system do we have in this country. A legal System, or a Justice system. We still label it DOJ, indicating it’s a Justice system, but is it Justice based? I vote no, as observed by the billions of court records available, We now have a firmly entrenched Legal system.

    One where logic, common sense, practicality and what is actually good for the people is thrown out the window in favor of “the process”!

    Protect the legal industrial complex at all costs!

    Now that is true penis envy of the military industrial complex. I will add only that I think the LIC in reality is much larger than the MIC!

    It seems that I am not alone in protecting innocence for those that are indeed just that, innocent. Within a justice system, nothing else matters, within a legal system it becomes winning your side that matters.

    Ramos and Campeon are proof of such right?

    TC (1cf350)

  99. Patterico – I did not know that prosecutors could refuse to prosecute a case if they felt it was not warranted by the evidence. I thought that prosecutors were like the government retaining a lawyer in a civil case – you have to argue the plaintiff’s side whether you like it or not. Funny that isn’t shown on TV legal dramas.

    Defense lawyers remind me of sewers. Most people find them distasteful, but they are glad they are available when they need them.

    There has to be a better way to handle situations like those describe in the article.

    OmegaPaladin (78ab96)

  100. New to the thread, with a no-time-to-chat hit-and-run point:

    Could they have gone to the Governor and requested a pardon, with sworn statements that they had information they were not able to divulge proving the man’s innocence? Why didn’t they do this? Seems to me this is what pardons are for.

    Amphipolis (fdbc48)

  101. A pardon requires admission of guilt, as I understand it. One of the “features” of the legal process.

    htom (412a17)

  102. There are pardons on the grounds of actual innocence. In fact, they are prerequistes for compensation for wrongful conviction.

    nk (5ce644)

  103. But, but… nk… that doesn’t feel right… so how can it be true? You have to be wrong about that, because that’s not how it was understood.

    /sarcasm off (not really, just suspended until the next comment by htom, stef, Jaybird, Sean, etc…)

    ;)

    Stashiu3 (460dc1)

  104. I asked my plumber. You don’t think I’d trust some statute book or legal treatise, do you?

    nk (5ce644)

  105. Seems to me that Radley Balko could weigh in on this….he seems to think that breaking the rules-breaking the law-has no real requirement in a court of law…

    reff (bff229)

  106. I asked my plumber. You don’t think I’d trust some statute book or legal treatise, do you?

    Well, as long as you used an authoritative source who am I to disagree? Carry on sir.

    Stashiu3 (460dc1)

  107. Legality, ethics, morality, justice and honor. A witches brew cobbled together here. No easy answers, no easy outs, the law of unintended consequences. Interesting coincidence it so closely follows the Balco nullification post. Perhaps some problems have no solutions.

    Amused Observer (ca76be)

  108. Two long, very interesting posts this weekend about legalities, morals, ethics…

    Those who generally favor the law or the rules believe in them…

    Those opposed to the rules favor the idea that an individual can break/violate/ignore the rules when they believe it to be the right thing to do….

    I’ll ask the same question again:

    If a person who believes something completely contrary to the existing rules, morals, societial codes, ethics, and believes it strongly, does that person get to violate everything because of their beliefs?

    I ask this question specifically of those who think that jury nullification is acceptable.

    I ask it as well to those who believe the lawyers who followed the rules and didn’t disclose their client’s involvement in a crime.

    Yes, I am arguing against breaking the rules, or the laws, because the opposite is anarchy, where any one person can set the agenda, regardless of their personal beliefs.

    That, to me, is incredibly scary….

    reff (bff229)

  109. I am not a lawyer butI think the Code of Ethics needs a re-write.

    John425 (eae6ea)

  110. John425, feel free to suggest an ethical rule on the confidentiality of attorney/client communications that protects the confidentiality and avoids this rare problem of an attorney holding information regarding someone else’s innocence.

    SPQR (26be8b)

  111. A lawyer wins a case for a client who he knows is guilty of the crime; happens everyday, right? They go arrest someone else for the crime after the guilty guy is set free. When is that lawyer supposed to come forward and admit that his client was guilty all along?

    There should even be an expectation that if the first suspect isn’t found guilty that the authorities will go out and find another suspect to try. It’s obvious that defending any guilty person ever is very close if not exactly the same ethical matter as this case.

    j curtis (c84b9e)

  112. The only client I had, j curtis, who claimed to be purely innocent was my death penalty case. (Two murders, kidnapping, rape.) And the evidence against him was overwhelming. Physical evidence of the most unimpeachable kind. But that’s how sociopaths are.

    Did I have a lot of clients who were “overcharged”? Yes. Did I do my best to make sure all were “undersentenced” or let off altogether? You bet.

    nk (5ce644)

  113. After listening to the two lawyers and the falsely imprisoned man involved in the case on 60 Minutes (and realizing that it was just a glimpse, and prosecutors were not interviewed), it seemed surreal that the lawyers did not come forward at some point in time. They did say they never not thought about it during the ensuing years and yet went on about their lives. They never mentioned any pro-active moves made to try to change the system or find any other solution to the quandary. Apparently there was nothing to be done, other than to come forward on behalf of an innocent man.

    While understanding this is an anomaly that occurs only once in a while, it is still the life an innocent person and it was heartbreaking to see him speak about the matter. His first decision, if and when he is released (because the judge needs to see if there should be a retrial and/or the A.G. needs to determine if perhaps he can be released w/out going through a trial…all time consuming) is to get out of the state of Illinois as quickly as possible.

    A definite no-win all around.

    Dana (b4a26c)

  114. I have to finish reading the comments, but this stuck out:

    “Defense attorneys, how commonly do your clients tell you they didn’t do it when it’s clear they did? I believe that is not at all uncommon.”

    I had a client that, after their preliminary hearing, trial, and sentencing hearing, stated at the opening of the restitution hearing (which lasted a lot longer than it, really, had any right to) “why am I here; I didn’t do it.” No, he was not kidding. (His statement hinged on them not having him “on tape” doing what he was charged with. The tape was bad. But the cameraman’s eyes weren’t.)

    Lysander (b9a564)

  115. 112 NK,

    Did I do my best to make sure all were “undersentenced” or let off altogether? You bet.

    If a client confided in you his guilt in the matter, you might still try to convince the jury that someone else did it, right?

    I mean, if your client didn’t do it then someone else must have done it, right?

    If the cops then go arrest a new suspect, when do you come forward to admit that your client was guilty all along?

    j curtis (c84b9e)

  116. There are exceptions to the privilege rule. I would propose another. If your client confesses to a crime unrelated to that for which you are representing him and that information may lead to the exoneration of a person charged with the crime, then that information is not privileged.

    Would this led to less effective defense? I think not. Clients regularly lie to their attorneys and yet receive as good legal representation as if they had told the truth. Would there be fewer confessions? Probably, but what difference would that make? I know that the rules have been developed over a long period of time and are intended to make the system work as well as possible. But the did not come down from Sinai with Moses. They can be changed. If any other business or profession showed so little interest in correcting a problem that has resulted in a terrible injustice then a multitude of attorneys would be screaming for their blood.

    As to DRJ’s question ( #48 ), there are a couple of reasons I believe a priest should have absolute privilege. He is not an officer of the court. He stands to gain nothing financially. He can urge the person to do the right thing without conflict.

    Finally, if the legal profession would rather sit by and accept this without at least trying to find some corrective action, then their already tattered reputation will suffer another blow. Perhaps it could be redeemed by a special tax, say $10,000 per year per attorney, that would fund wrongful conviction research and false imprisonment compensation. That would be ethical.

    Ken Hahn (7742d5)

  117. Nooo. It only means I prevented the State from proving, or convinced it that it could not prove, its case beyond a reasonable doubt. Doesn’t mean that there’s someone out there who’s “more” guilty. This “gotcha” reasoning, when you know nothing about the law and legal procedure, only makes you look ridiculous to those who do. And you want me to give you the power to nullify? Sheesh.

    nk (5ce644)

  118. 117 NK

    you know nothing…you look ridiculous… Sheesh.

    You still didn’t answer the question. I’ll ask again:

    If your client confides in you his guilt and you convince a jury that he’s not guilty, what do you do if the cops arrest someone else for the crime after you got the real culprit off?

    At what point would you come forward, if at all? At the time of the arrest? At the trial? Sentencing?

    j curtis (c84b9e)

  119. If the client confided his guilt, tried, and not convicted, why cannot he (or his lawyers) come forward at the later trial and admit to his guilt without legal penalty? (Or can he or they?)

    nk — I learn something every day.

    reff — I think that there are indeed times when violation of statutes is the right thing to do, usually in order to save another’s life. I think that these times are rare, and are not written into the statutes because the wisdom of the legislature (perhaps it’s the laziness) is such that they know that they can’t possibly think of all of the crazy things that could happen in the world, and write those exceptions into the text of the law. They rely on the police, prosecutors, juries, and judges to ensure that when those cases come along, people are not arrested, or if arrested not charged, or if charged not convicted, or if found guilty the verdict is overturned.

    Jury nullification (at least as I think of it) is the “if charged not convicted” part of the above.

    These days, it seems, more and more discretion is being taken out of the system, and it is this “loss of slop” that is leading to the system breaking down. “Must arrest” policies. “Must prosecute” policies. “Mandatory sentences” (that the jury cannot be told about before they convict.)

    Shashiu3 — Snarkers on the road! ;)

    htom (412a17)

  120. Jury nullification (at least as I think of it) is the “if charged not convicted” part of the above.

    Actually, that would be called “acquittal”. Nullification is when a guilty person is deliberately acquitted despite the case against them being proven beyond a reasonable doubt, just because of the personal biases of the juror(s).

    I agree with you that too much slack is being removed from the system, leaving little room for sensible discretion. It’s the nullification supporters who insist that the system be perfect every time… life just doesn’t work that way. It’s that insistence on perfection that leads to our over-legislated and over-lawyered system, because the guilty will always try to find a crack to exploit.

    Stashiu3 (460dc1)

  121. htom…I’ll argue here, for sake of discussion, that this very situation has been faced before, probably many times, in our history, yet, no one has changed the law very much to face this truth.

    Why?

    Because “discretion” is dangerous when in the wrong hands. Who decides whose hands are “wrong?” The rules exist to protect this from happening, because, as my question in #108 asks, what happens when someone who completely believes in something that is completely against common law, morals, ethics, guidelines, and the like, is the one who gets to decide on the “discretion” in a specific case???

    reff (bff229)

  122. Nice post in #119 btw. I don’t agree with all of it, but the reasoning is well-considered and worth discussing. Snark has its place (heh), but I’d much rather have a spirited back-and-forth of honest opinions any day (except Thursdays of course… being a recognized snark-day and all)
    ;)

    Stashiu3 (460dc1)

  123. Because “discretion” is dangerous when in the wrong hands.

    reff,

    Isn’t that why we have checks and balances in the system? To avoid concentrating too much power in the “wrong hands”? I’m as “rule-of-law” as anybody, but I do think prosecutors, defense attorneys, judges, and jurors should all have some discretion in the performance of their duties. If everything is charted out to the nth degree, we could just use a “cookbook” law approach and ignore exceptions. Sensible discretion can accomodate those rare exceptions without violating the rule of law.

    Stashiu3 (460dc1)

  124. Stashiu3…

    Absolutely!!! But, the law covers discretion, and not “individuals” and that is what protects us. The two topics, both Balko, et.al, and the defense lawyers, have many people arguing that lying is ok “individually” and that violating attorney/client privilage “individually” is acceptable, in fact required, under certain conditions.

    So, in those two cases, and for the sake of discussion, after all our readings/writings, how could be allow “individual” discretion in either?

    For Balko, it can’t be done, because of my question in #108. For the defense lawyers, I could only see one possibility, and that would be for there to be a separate investigation to prove the “innocence” or “guilt” of their client, completely secret from the existing court proceedings.

    And, which of us could accept secret investigations/trials in that case. Someone even suggested that the lawyers could go to the judge, giving him/her “discretion” to rule in the case. But, under what evidence, how was the evidence obtained, who are the coraborating witnesses, etc, etc, and so on, ad infinitum….

    There your “discretion.” I would rather let the courts begin now to find an answer to the lawyer problem…

    And, pray Balko is NEVER, EVER on any jury….

    reff (bff229)

  125. j curtis -

    If they don’t have enough evidence to convict. . .. It depends on what the motivation is. If I’m told “yea, I did it, now get me off the hook,” that’s one situation. If they tell me, “I did it, what am I facing,” that’s another. Will there be an offer that’s “acceptable” to the client? Is the prosecutor playing hardball? Is the client playing with unrealistic expectations? Just as important is what I first said – can the prosecution, with what it has, gain a conviction?

    There’s a reason the verdicts are “guilty” and “not guilty” – and why the statements in the Duke case of “innocent” was such an outlier. Just because the court/jury found insufficient evidence of guilt does not automatically mean they found the defendant “innocent.”

    Lysander (b9a564)

  126. “If the client confided his guilt, tried, and not convicted, why cannot he (or his lawyers) come forward at the later trial and admit to his guilt without legal penalty? (Or can he or they?)” – htom #119

    HE can. Double jeopardy has already attached, thus is “safe” from re-trial. The attorney is still bound by the confidentiality, thus is technically unable to make any remarks.

    Lysander (b9a564)

  127. 125 Lysander

    You lawyers will avoid answering my very simple question all day long by changing the details of the hypothetical. Why not just clear the air and admit that you would let the innocent guy rot in jail for the rest of his life if you successfully were able to get the real culprit acquitted prior to the innocent guy standing trial for the same crime?

    j curtis (c84b9e)

  128. j curtis -

    What makes you think that the second trial will be successful?

    Besides, the rules are there to protect the clients, not the attorneys. Or, would you rather have the situation where there are no defense attorneys, only prosecutors? Where’s your proposed standard? 26 years? 20? 15? 13 months?

    Or, no attorney-client confidentiality at all? Why not open it up to civil matters as well – Hey, what did that client put in his Will? If you’re OK with no confidentiality in criminal areas, why is it then OK in civil areas?

    It’s not just whether someone is convicted of a crime or not, no matter how you sugar coat it.

    Lysander (b9a564)

  129. Sigh. What’s there to “come forward” about? Everybody already knows that my client was arrested and tried for the same crime. They can call me as a witness if they want and ask me if my client confessed to me but you know what? My answer would not be admissible. They’d have better luck subpoening my client. But if he chose to lie they still could not use my testimony to impeach him.

    Your question isn’t simple. It’s ignorant.

    nk (5ce644)

  130. What makes you think that the second trial will be successful?

    Because it is sucessful in this hypothetical.

    But even before the trial takes place, the innocent guy is suffering for being a suspect of a crime he didn’t commit, and you know he didn’t commit the crime because your client confided his guilt.

    The point is that the two PDs didn’t do anything unusual. Even you might even come forward after your client dies as per this hypothetical. The point that the two PDs never defended their client for this crime is irrelevant. He’s still a client. It could even be argued that the lawyer in the hypothetical is even more despicable because he had an active hand in bringing about the miscarriage of justice whereas the PDs only had a passive hand in it.

    j curtis (c84b9e)

  131. Thank you, Stashiu3 and Lysander.

    The PD lawyers are in a hard place, not because of their own actions, but due to the act of their client and his telling them of that act, and there isn’t any good way out for them. (Depending on their client, there might not even be a bad way out!) I’ll go further and say I don’t think that there can be a good way; discarding attorney-client confidentiality is not going to solve the problem, it merely creates others which will be rapidly become even messier.

    nk did have a neat approach, although it couldn’t often be used. Trusting people can be a good thing.

    htom (412a17)

  132. j curtis –

    The problem is that the hypothetical can come up even if the lawyer involved is not a criminal lawyer.

    Attorney has a respectable estate planning practice. That’s all they do, other than the occasional real estate closing. They write wills, trusts, powers of attorneys, and the occasional real estate deed. New Client comes in and wants his estate planned. Pays Attorney to set it up, and the process begins. Only New Client and Attorney are in the room, and in taking the background information, New Client says ‘Oh, by the way, I committed multiple murders five years ago – all self defense, I tell you (with ‘appropriate’ winks).’ Attorney heard of the case before, but has no idea whether anyone was convicted – he’s never set foot into a criminal court before. What do you suggest Attorney does?

    Or, traffic case. Client charged with having no driver’s license. Attorney tells Client “Go to DMV and GET ONE before the hearing.”
    “I can’t.”
    “Why can’t you?”
    “I’ve been in this country 10 years, and I have no papers.” (in other words, “I’m Illegal!”)
    What now?

    Which one, if any, should an attorney come forward and incriminate his client?

    Lysander (b9a564)

  133. The problem is that the hypothetical can come up even if the lawyer involved is not a criminal lawyer.

    My hypothetical dealt with a criminal lawyer. You are determined to smudge the details of the hypothetical.

    j curtis (c84b9e)

  134. I admittedly didn’t read through all the comments, but I’m pretty angry about the story. There is no ethical question here – the lawyers should not have let an innocent man go to jail for 26 years. Period. The fact that there is some ethical restriction against that confirms all the awful things we think about lawyers and the legal profession (no offense, Patterico!).

    JohnW (eadc74)

  135. JohnW, it is a shame you have not bothered to understand the reasons for the ethical rule.

    SPQR (26be8b)

  136. I have read all the posts in both of these topics. I understand the rules and the reasons for them. I have no better system to replace the one we have.

    I still think the system is despicable in that the lawyers are PROHIBITTED from preventing a gross injustice. Especially in light of the reasons for the client confidentiality rules.

    I seem to remember that one of the reasons we have these rules is to ensure that no innocent man goes to prison for a crime he didn’t commit.

    “It is better that 100 guilty men go free than a single innocent man go to prison.”

    Does this no longer apply in our current legal system?

    Jay Curtis (8f6541)

  137. Jay Curtis,

    That’s why I tried to discuss the example of a priest and confession, in the hope it would elucidate the theory involved.

    If this man had confessed to his priest instead of his attorneys, the priest would not have been allowed to reveal it under church doctrine and law. An innocent man would have sat in jail, just like in this case, even though the priest knew the truth and might be able to stop the injustice by telling the authorities.

    And yet, I don’t think the priest would tell because he had a moral, ethical, and church law duty not to reveal the confidence. Most people have an easier time understanding why the priest wouldn’t tell.

    FWIW, I hope the priest and the lawyer would find a way to let someone know, but the reality is that they would probably have to reveal the confidence without a legal justification to do so. Sometimes in life, it’s worth it to break rules. Maybe this is a good example of one of those cases.

    DRJ (a431ca)

  138. DRJ – Normally I agree with you, but not here. This is another example of why people find the profession so distasteful.

    I am a simple minded, ueducated, mouth breathing, knuckle dragging rube, so I am prone to simplicity. My take is this – if doing something that is unequivocably and unquestionably the right thing to do, is against the rules … the rules suck.

    JD (626b4c)

  139. And yet, I’ve not seen anyone really deal with the dichotomy of reaction to the hypothetical priest with a confession versus a lawyer that DRJ presents.

    There is some amount of hypocrisy in people’s protestations.

    SPQR (26be8b)

  140. SPQR, I have read all of the comments several times through in order to understand this dilemna…so don’t bark, k? What a spot-on observsation #139. Personally, I believe the priest would have a more compelling obligation to reveal the confession as he alone answers to God who is an even higher calling than the law of the land, or an institution (church). How in clear conscience before that God he serves, could he go on about his business of reflecting and exemplifying the truth, honesty, and life of Christ while justifying keeping this sort of confession to himself? What a dichotomy. (Of course this isn’t a post about faith and yet its compelled to cross lines there).

    And perhaps that decision when its “it’s worth it to break rules” comes more readily to some than others, depending what is at stake, personally and professionally, and what they give value to most in their lives.

    Dana (582893)

  141. I guess what I’m trying to get across, Dana, is that in both cases the rule requiring non-disclosure exists because of the damage such disclosure does to the remaining 99.99% of communications between penitant/priest and client/attorney.

    SPQR (26be8b)

  142. The dilemma that the defense lawyers don’t want to acknowledge is the dilemma that the prosecutors should be exploiting.

    The prosecutor tells the jury that if they acquit this defendant, the expectation is that another defendant will subsequently be tried. That way the jury is on the hook regarding how the outcome is ultimately resolved. It will affect their “beyond a reasonable doubt” calculations.

    I’d use this tactic every time if I was a prosecutor.

    j curtis (c84b9e)

  143. Dana,

    From the standpoint of morality, I think the question is much harder for the priest than for the lawyer. By revealing the confidence, the lawyer risks his job, livelihood, and reputation. The priest risks his soul and the soul of the person who made the confession — because forcing someone to come forward will doom his soul in the Christian / Catholic religions. Only by coming forward himself will the person save his soul, and the priest knows that.

    JD,

    Both priest and lawyer can urge the person to come forward, but we could change the rules for lawyers so there is an exception if you are trying to save an innocent man.

    But what if the confession comes in a case with co-defendants? Two people charged with participating in shooting someone in the head, and one tells his attorney that the other wasn’t involved. Can the attorney sell out his client to save the other guy?

    DRJ (a431ca)

  144. DRJ, I don’t believe the Christian’s soul to be at risk by speaking truth but perhaps it would be by keeping silent. There is not an issue in Christianity of being bound to an institution but instead bound to a direct relationship with God. Catholocism may be a bit of a different matter.

    However, assuming the priest has an obligation to society, to the protection of innocent people, to the safety and well being of his flock, how, if he’s protecting a murderer, is he able to fulfill this obligation?

    This has nothing to do with forcing a guilty man to come forward, it has to do with the conscience of the priest.

    Of course we are moving away from man’s law and into theological matters wherein our perspectives may differ.

    Dana (582893)

  145. DRJ – I understand that there are literally thousands of different scenarios that make this such an important part of the process. Having said that, my default position will always be to see that the truth comes out, and I will always be frustrated by hurdles put in place that actively subvert the truth.

    JD (626b4c)

  146. We need more like you, JD.

    DRJ (a431ca)

  147. Dana,

    I’m not a religious scholar although I think the Catholic Church and possibly the Anglican Church view it this way. However, I’m willing to assume either for the purpose of this discussion.

    So let’s say the church views the sanctity of confession as just another rule designed to let people speak freely with their priest. Is that not worth preserving, so people will confess honestly and get forgiveness? Even if you think it’s not important enough, what would you do to the priest who believes keeping confidences is important and refuses to divulge the secret you think he knows?

    DRJ (a431ca)

  148. #142 j curtis — that approach might well backfire, it’s proclaiming to the jury that someone, anyone, must be convicted, and this defendant is the designated scapegoat.

    htom (412a17)

  149. #145 Well said. I just wish we had a solution to this problem that met all the needs.

    #147 “So let’s say the church views the sanctity of confession as just another rule designed to let people speak freely with their priest. Is that not worth preserving, so people will confess honestly and get forgiveness? “

    I was always taught that the most important thing was that you confessed honestly to God and aknowledged your sins. Some religions require you to do this in the presence of a priest. However, I have never found a biblical passage to back this up.

    “Even if you think it’s not important enough, what would you do to the priest who believes keeping confidences is important and refuses to divulge the secret you think he knows?”

    I wish I had an answer for this. One of the most important reasons for the founding of this country was religious freedoms and the right to worship as each person believes proper. I would just hope that the basic tenets of their beliefs would involve the values of truth and mercy among the most deeply held. Then you have to trust each person to make the right decision in each case. I just wish that we could actually count on those strong values being instilled in each new generation. Sadly, I don’t believe this to be the case.

    Thank you all for keeping the conversation on track and civil. I have enjoyed the discussion here this weekend.

    Jay Curtis (8f6541)

  150. j curtis – (#133.)

    “My hypothetical dealt with a criminal lawyer. You are determined to smudge the details of the hypothetical.”

    The point is that it does not have to be a criminal attorney but any attorney to be under the ethical rules.

    The short answer to yours is no: if the Rules of Professional Responsibility in the state(s) in which you are licensed say that such information is confidential and the privilege belongs to the client then
    (i) if you, as the attorney, break the privilege, the evidence you give is unusable – it’s not your place to make such statements (you can, circumstances accounted for, stress to the client that they should consider “doing the right thing”),
    ii) if you can’t do it, don’t sign the papers saying you can (i.e. the necessary documentation to be licensed), and
    (iii) it doesn’t if the information comes to you in a criminal context or not.

    And in response to my hypotheticals (all of them), your answer is: . . ..

    re your comment #142.

    There is no such expectation. Think of any murder case where it’s “known” the defendant is guilty – but is found not guilty. Besides, if a prosecutor did, at any point say something to the effect of “if you don’t convict this one, we’ll go get another one,” how easy would it be for a defense attorney to point to that and say “See? He doesn’t really believe my client is guilty if he believes he can have someone else tried for the event.”

    Lysander (10292c)

  151. DRJ,

    The discussion at this point hinges on whether or not the priest is making the correct moral decision in letting the guilty go free (at least in this lifetime) and thus allowing an innocent person to suffer for the transgression of another. Of course an outside party cannot know and cannot assume some to know. It’s now between the priest and his God as to what is the correct thing to do. (this becomes a question of whether or not “confession” is a practice sanctioned by God and the Bible. (personally, I believe only God forgives sins, and He does not need an earthly mediator because of the resurrection of Christ. I realize Catholics view this differently.)

    I don’t see how a priest in good conscience can remain in that good conscience by condemning an innocent party and letting a guilty man go free – possibly to continue committing the same crimes. Its difficult to see how a just God would sanction such an action.

    As always, thank you for the discussion.

    Dana (b4a26c)


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