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Tuesday, April 29, 2008

The (Attorney - Client) Confidence Game

I haven't posted for a while. Been suffering from shingles. No, I didn't fall off the roof. In between scratching & moaning, I've been reading. Last Sunday, a New York Times article caught me deep into the National Section, at page 22, a typical placement for this kind of trivial headline: "Confession Revealed, Freeing Prisoner of 26 Years."

The situation is very weird. Seems that another guy confessed to the crime to his lawyers, but they didn't reveal the fact in public until their client died. Now they've come forward and disclosed the confession. So the wrong guy was convicted and kept serving time years after someone else confessed to the crime.

So, is this justice? The lawyers for the confessing client had a dilemma. What he told them was in confidence, covered by the attorney-client privilege. A lawyer cannot - must not - under pain of disbarment - disclose such confidential information to anyone without the client's permission. Understanding their obligation as well as the problem this information would lead to, the lawyers wisely prepared affidavits containing the detailed information their client confessed to UNDER SEAL - not to be opened until their client died.

There are cases which say that the confidential communication privilege doesn't survive the death of the client. But there are other cases that say otherwise.

Vince Foster, an official in the Clinton administration, was under investigation as part of the so-called Travelgate scandal. He had hired and consulted with an attorney and was under pressure by Ken Starr, the (so-called) Independent Counsel. Foster committed suicide. Starr then sought to interview Foster's lawyer to find out if Foster or others (read Bill & Hillary) had committed crimes or if Foster's death was homicide.

The Supreme Court eventually upheld the attorney-client privilege. The idea of the privilege, which has existed in the common law for centuries, is to encourage a free flow of truthful information between lawyer and client. If the client thinks that what he tells his lawyer will be disclosed, he will ( shudder) lie to or withhold facts from his lawyer. The Supremes observed that many clients would not want their confidences revealed even after death and that was an interest worth protecting, even if it causes "injustice" or incovenience to the cause of justice.

The privilege is not without exceptions. It is now established that it doesn't cover future violent crimes. If the client tells his lawyer he intends to commit violent crimes, the lawyer has a duty to disclose that. I've always resented this. It kind of discriminates against us criminal lawyers. I mean, clients planning non-ciminal transactions can consult their lawyers. I'm waiting for the client who calls me in whispers: "Hey, Mort, I'm in a bank and I want to rob it. What should I do?"

In reality, contrary to public opinion, most clients do not confess to their lawyers. They confess to the cops, to their homies, to everyone in the jail - but they deny guilt to their lawyers. This is mostly because they fear their lawyers won't fight for them unless they believe in their innocence, not because they fear the lawyer will tell on them.

I have friends who never ask their clients if they're guilty because they don't want to be hampered in their defense. I can't deal with that fantasy. I always grill my clients until they confess to me or at least until I'm pretty well convinced of their guilt. My reason is partly selfish: it's bothersome to defend innocent people - the pressure of losing the case when the client is innocent is too intense. Its comforting to defend guilty people.

Thursday, April 03, 2008

Death Row Inmate Freed ... ho hum ...

This is not a particularly busy news day. On page 1, Bernanke testified before Congress about the mortgage crisis and the Iraqi army's readiness to fight is questioned. Below the fold, home schooling is featured.

Not many people will read all the way to page A16 to read the story beneath the headline "Death row inmate is set free." Glen Edward Chapman spent 14 years on death row in North Carolina before being released after it was discovered that police detectives had failed to disclose evidence that might have proved someone else committed the murders he was condemned for. His own lawyer was also ruled "ineffective" for failing to investigate enough.

This is such a common tale that it is barely news at all. It is not even the lead article on Page A16. That honor belongs to the jarring headline: "FEMA liquidates its free ice policy," which occupies columns one and two.

By the way, the "Death row" article notes that the conviction was actually reversed 4 years ago. It took the local prosecutor 4 years to decide to dismiss the case.

Speedy justice? Of course, all of this would have been moot if Mr. Chapman had been executed in a "speedy" manner, thus providing closure for the system. What a pity.