Monday, July 20, 2009

Ethics v. Morals, II

In an earlier post, I raised three examples of real world ethics issues faced by criminal defense lawyers in which I had at least an advisory role.
  1. Lawyer comes upon letter, seemingly written by client who is facing capital charges, explaining to a third person how to acquire a rifle and kill the key witness against client. What is lawyer's obligation? Under the jurisdiction's ethical rules? Under human morality?
  2. Lawyer is told in confidence by one client that he is responsible for the murder for which another client faces death. The lawyer has a duty to represent the best interests of both. How is that possible?
  3. Lawyer represents client who is to testify against another client in a capital trial. Both clients are willing to sign waivers allowing waiver of any privilege the witness/client might have. But court says, "Whoa, I don't think they can waive that sufficiently for you to do your job." Now what?
A commentator who goes by Feisty offered a set of possible answers, and wondered what my positions were on the questions. I promised I'd answer in a later post, and here we are.

First, here's what Feisty wrote:
In the first case, if there is strong evidence that the client wrote that letter, protective measures should be taken ensure that the prosecution's witnesses are not killed. The prosecution should not necessarily be able to introduce the letter in its case in chief, but the state should pay for relocation of or a security detail for these key witnesses. The intended (or actual) recipient of the letter should be monitored.

In the second case, it seems like a withdrawal of representation for the (possibly innocent) client is, at the very least, required. Ideally, the counsel for the (likely guilty) client could ask him to take the stand in as a the innocent man's trial as a defense witness, ask him to make a statement against penal interest, and suggest (before hand) that the client assert his 5th amendment right against self incrimination. Hopefully this would be enough to sway a jury. Obviously, for this to work, the two men could not be tried jointly, and a defense attorney in this situation should request separate trials. If the innocent man is convicted anyway, and if the innocent man is not already serving a life (or equivalent) sentence for other crimes, disclosing the confession seems like the only way to promote justice.

In the third case, the lawyer can't and shouldn't represent both clients. Ideally, the lawyer should withdraw from both cases. The court should be asked to grant a continuance so that both clients can find new lawyers.
Here's what actually happened.

In the first case, and after discussion among the defense team and then with the state's chief disciplinary counsel, the judge was informed. At the judge's direction, the police were informed and the seemingly-threatened witness was whisked away. Police then tried to obtain the letter by subpoena. Eventually, the case went to the Ohio Supreme Court. A majority of the court held, in a terribly short-sighted opinion and over vigorous dissent, that counsel was obligated to give the evidence to the police and to turn it over when subpoenaed. What the opinion actually says, is that counsel had the choice of whether to use the information from the letter to try and prevent the killing of the witness, but that once the police learned of the letter, he could no longer keep it secret.

Get it. The court said that if the attorney tries to save the witness's life, he must also provide the evidence of the threat so that it may be used against the client. Save the witness and hurt the client or let the witness die (potentially) and protect the client. Why in the world would the court force the lawyer into such a stupid position?

The ethics rules, and good sense, pretty clearly permitted the lawyers to tell the police. And once they'd done that, they clearly could no longer represent the client and had to withdraw (the judge gave them asses and elbows over that, though she eventually allowed it). But they should never have been required to turn over the letter. The client, by the way, with new counsel, was sentenced to die

In the second case, and I changed the facts here a bit for clarity since in the particular case both attorney-client relationships had some ambiguity, the lawyer was in a completely untenable position. The duty to the client to keep the confidence that he was the actual killer simply cannot be reconciled with the duty to the client on death row for the killing. Withdrawing from either or both cases does nothing to resolve the various duties involved. What actually happened is that the client who confessed granted permission to reveal the confession. Not surprisingly given how capital cases work, the perhaps innocent person is still fighting it out.

I don't know what I'd have done in the case. My advisory role was on a collateral issue to this problem, and though I couldn't avoid having to respond to it, I didn't actually have to take a position. For which I'm grateful. The underlying problem is remarkably close to the one that set Mark Bennett off (here and here) and led to this discussion.

In the third case, the lawyer first withdrew from the witness's case and retained a waiver from the capital client saying, "I know you can't cross that witness with information you learned during your representation, but I want you on the case anyhow." The judge said that wasn't good enough. That the conflict of interest was too great and too certain to be waived. So the judge kicked the lawyer off the capital case.

I didn't much like it at the time, and don't much like it now, but I have no real doubt it was the right call. The capital client, by the way, eventually worked out a deal and is now serving a sentence from which he will first be eligible for parole in about another 145 years.

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