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SHOULD A LAWYER’S OATH LETAN INNOCENT MAN ROT IN JAIL?

There was a lot to comment on last week - Spitzer and the Hooker - Obama and the Nutty Preacher, but it was a bad week for me physically and it kept me focused on dealing with personal problems and away from blogging. I may have a few thing to say about those two stories later on - but for today the story that I can’t get out of my mind has nothing to do with politicians or their troubles, but with the kind of problem that is hard to believe could ever become a problem and that leaves me with a sense of disbelief that it became one at all.

In this crazy world, it’s hard to be shocked by the headlines that scream out at us every morning from our daily newspaper. We’ve become so used to stories of betrayal and corruption and disingenuousness and unfairness that more often than not we greet such stories with a shrug and a raised eyebrow and go on about our business. The story of Alton Logan - featured on 60 Minutes and in newspapers around the world, is not one of those. Not one that can be brushed aside with a shrug and a raised eyebrow and easily forgotten. Not when it’s the story of a man who has spent 26 years of his life behind bars for a crime to which someone else confessed 26 years ago. And what makes it a story that can’t be ignored and chalked up to one of those rotten deals that befall some people and about which nothing can be done - is to whom the confession was made.

The story’s there - in the link to the CBS 60 Minutes report - and you’ve probably heard about it from one source or another. Lawyers representing one Andrew Wilson on murder charges, were told by him that he had committed the murder for which Alton Logan had been convicted and given a life sentence. And client confidentiality prevented them from doing anything about it. The most they thought they could do was to prepare an affidavit saying that they had received "privileged information" that the murder had been committed by someone else - and persuaded Wilson to "allow" them to reveal the information after he died.

It’s really hard to find the words to continue these comments. The attorneys insist that they were bound by the attorney-client privilege - just as priests and doctors are bound to not reveal what they know about people who confide in them. The attorneys were ready to break their obligation of confidentiality had Logan been sentenced to death - but since the sentence was "only" life imprisonment, they felt they were off the hook. But could they have done anything beyond preparing an affidavit to show their painful awareness of their professional obligation to their client? You're damned right they could. They were able to persuade him to allow them to reveal his confession after his death. A lot of good that would have done if Logan had died first. In priso!! But one has to wonder why they weren’t able to persuade him to reveal his confession once his own case was resolved. Wilson was found guilty of two murders and was sentenced to life in prison. What harm would it have done to confess to a third murder and set an innocent man free?

One possible drawback would have been the potential sentence for that third murder. Maybe it would have been death rather than life imprisonment. But that’s really no argument. Thousands of inmates are sitting in jail having "plea bargained" their cases - admitting guilt in return for an arranged sentence. At the very least, Wilson could have been persuaded to allow his attorneys to find out if a plea bargain would have been offered in return for proof of Logan’s innocence. Wilson was never going to get out of jail anyway - so confessing to a third murder wouldn’t have placed him in a worse position.

But even if that circumstance didn’t exist - if the confession wasn’t from someone already serving a life sentence - surely there needs to be some way to allow attorneys to reveal so called "privileged" information if it will prevent a miscarriage of justice - particularly if that miscarriage is about to put a man in jail for life - or even deprive him of his life. What would be wrong with having someone appointed as some kind of legal ombudsman to handle precisely this kind of dilemma? Perhaps a judge who could either do this full time or part time. Or perhaps a number of judges who would take on such tasks on a revolving basis.

How would it work? I can’t say, but the premise would be simple. An attorney having the kind if information that Wilson’s lawyers had, would simply go to one of these judges/ombudsmen and present evidence that could only have come from the person who committed the crime - along with confirmation of a confession. The lawyer would not be compelled to reveal the identity of the guilty party - so the lawyer-client confidentiality would be maintained. But they would be compelled to take action if they were aware that someone had been wrongfully convicted - or perhaps even wrongfully indicted. And there would be a chance that some innocent person would not have to suffer the fate of Alton Logan.

The same rule should be applied to clergymen and physicians. No self-imposed professional code of conduct should be allowed to supersede the requirement to reveal exculpatory evidence that would clear someone wrongfully accused or convicted of a crime - particularly a capital crime.

As I watched and listened to the two attorneys "explain" how they were "compelled" to keep silent all these years, my feelings were a mixture of anger, disgust and disbelief. Even if they had to "keep silent" - there is no excuse in the world for them doing absolutely nothing about it. Logan had an attorney. They could have approached that attorney with exactly the same information that was in their "affidavit" and offered to help. They wouldn’t have been compelled to reveal the source of their information. Logan’s attorney would have understood that. But using what information Wilson could have provided about the murder, there might have been a way to cast doubt on the case against Logan.

There have been many cases of men serving years for crimes they did not commit - but they were cases where new evidence - often DNA evidence - was discovered. I don’t know of any case where a man was freed after a lawyer came forward to testify that a former client was the guilty party and they could now reveal that information because the man had died. If this case doesn’t result in some method being devised for attorneys to convey knowledge of someone’s innocence without violating their attorney-client confidentiality obligation, then the law, as Mr. Bumble said in Oliver Twist - is a ass, a idiot!!
posted by Jeff Smith at 3/17/2008 10:02:00 AM