Alternatives Explored
By RICHARD MEEHAN
The Cool Justice Report
www.cooljustice.blogspot.com
March 21, 2008
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
CBS' 60 Minutes recently reported on the case of Alton Logan, accused of the murder of a security guard in Chicago in 1982 at a local McDonalds. Despite the alibi testimony of family members, a jury convicted Logan and debated whether to recommend the death penalty. The story would not be remarkable but for the fact that Logan not only was innocent of the crime, but two lawyers who represented the actual killer knew it and kept silent.
The real killer, a man named Andrew Wilson, was being represented for the murder of two policemen by attorneys Dale Coventry and Jamie Kunz. CBS reports the lawyers had received information that Wilson killed the McDonalds guard. Armed with that tip they went to the jail and confronted their client who readily admitted that he was the one who killed the McDonalds guard.
Having invited the answer, the two lawyers faced a tortured ethical dilemma: Keep silent and watch an innocent man go on trial for a capital crime he did not commit; or, come forward and reveal the information given them by Wilson and violate the attorney-client privilege.
Coventry and Lunz chose not to come forward.
Rather, they composed an affidavit detailing their conversation with Wilson and placed it in a locked box under Coventry's bed. Coventry reported that he attended court the day the jury deliberated the death penalty. The lawyers were torn between what is morally right and what is allowed under the rules of attorney ethics. Coventry said that had the jury voted for death, somehow the two lawyers would do something to stop the execution. When the death penalty was rejected, the two decided they were ethically bound to remain silent. They did extract an agreement from Wilson, their client and the real killer, to allow them to come forward with the information after his death.
For 26 years Alton Logan has despaired in a prison cell, wasting half his life for a crime he did not commit. The Innocence Project formed by Barry Scheck and Peter Neufeld, law professors from Cardozo Law School at Yeshiva University, has gained national attention for its work, freeing wrongly convicted persons using modern DNA technology, not available in most cases when the original trial was conducted. Their work demonstrates that the system is flawed. Despite its flaws our justice system ranks among the fairest in modern world society. Logan wasn't convicted based on flawed science but rather on the mistaken recollection of witnesses who identified him as the killer.
Now that their client, Wilson, has died Lawyers Coventry and Kunz felt relieved of their ethical bondage and have come forward. The jailhouse doors did not fling open on their revelation, but Alton Logan is seeking a new trial. The question from the 60 Minutes piece: Should these lawyers have remained silent to protect a killer and let an innocent man languish in prison?
Legal ethical rules exist in several different formats in every jurisdiction. In Connecticut they are called the Rules of Professional Conduct. They have been adopted and periodically amended by the judges of the Superior Court and they define the role of an attorney in nearly every aspect of the practice of law.
Paramount among those rules is Rule 1.6, Confidentiality of Information: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent . . ." This rule is the cornerstone of the attorney-client relationship. It is designed to foster trust and allow an attorney to know the complete truth without placing a client in peril that the lawyer will either voluntarily, or by compulsion, give up that information. At least in Connecticut, the rule has limitations and exceptions.
According to Coventry and Kunz, they believed that no rule or committee could solve the dilemma they faced, and thus they remained silent. The 60 Minutes report does not detail to what extent these two sought advice from other lawyers or ethics experts.
As noted, the confidentiality rule in this state has exceptions: "(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm."
Further exceptions permit the lawyer to reveal such information when the lawyer reasonably believes that it will prevent a client from committing fraud or a crime, or to mitigate or rectify the consequences of a client's fraudulent or criminal act that was somehow aided by the lawyer's services. The exceptions permit the lawyer to seek legal advice about the lawyer's compliance with the ethical rules and also to comply with a court order.
Did Coventry and Kunz strictly honor the attorney client privilege by their silence? Yes; but what would have been the consequence had they revealed the information they possessed? Would they have faced disbarment or other sanctions for this breach of confidentiality or would the release of an innocent man have been a sufficient counter balance?
What of Wilson, their killer client? Had they disclosed this information it most probably would have been ruled inadmissible in a prosecution of Wilson because of the privilege. The direct consequence of revelation would not have led to their client's conviction but certainly would have focused the investigation on him.
After seeing the 60 Minutes piece I put the question to several colleagues, none of whom would have chosen to simply remain silent. One experienced criminal lawyer told me he would have sacrificed his license, if that was what it would have taken to prevent this injustice.
In Connecticut an attorney facing this ethical conundrum can turn to the Bar's Ethics Committee for an informal opinion, without revealing their client's name. Directions from that committee can be relied upon by lawyers in choosing the appropriate action to take. Another alternative was for the two lawyers to retain a third attorney to whom they could impart everything with the exception of the identity of the client. That third lawyer could have then informed the prosecutor that an undisclosed individual had confessed to the crime. Although not enough to have exonerated Logan, it may have led to further investigation questioning the reliability of the evidence the state had gathered against him.
The further exception to Rule 1.6 permits a lawyer to reveal a confidential communication to "[c]omply with other law or a court order." A lawyer hired to represent Wilson's attorneys could have made application to a court seeking guidance, again without revealing the identity of the confessor. Perhaps a judge would find the privilege an overwhelming roadblock or perhaps that judge may have ordered Coventry and Kunz to reveal their information.
The path these two chose -- 26 years of silence, without exploring every possible ethical exception -- represents an aberration of the attorney client privilege. Critical to this is the fact that Wilson did not simply volunteer this information in the course of their representation of him. They acted on an outside source and went to him and put the question to him. Having created the conundrum they, and not Alton Logan, should have suffered the consequences of it.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com
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