Selling Out the Client - Part V

I've talked before about lawyers selling out their clients.  (Hell, this post is Part V in a series with that title.)  And I've talked repeatedly about legal ethics and the relationship between ethics and morals (another titled series, look it up) and criminal defense and who we are and what we do as criminal defense lawyers, and lately about the adversary system.

But I haven't actually written before about Terry L. Haddock (let's call him the Fish).  He's the guy who wore a wire for the FBI on some 63 visits with his client, Shannon Williams, at the Douglas County Jail.  I'm not sure why I didn't write about it when the news broke in January, but I'm talking about it today because of what the Fish said during the suppression hearing where Williams is trying to get over 100 hours of recordings the Fish made suppressed.  He didn't do it for money, he said (though he's in desperate financial straits and the feds did pay him $47,000).  And he didn't do it because he's a sleazebag.

He did it because he believes in honesty and justice.  Or something.  Here, from the Omaha World Herald, via the ABA's on-line news feed and John Wesley Hall is what the Fish said.

"I had a personal struggle with myself whether to get involved in that," Haddock told a federal judge Thursday after emerging from eight months in seclusion.
"But I could not live with the fact that this man would be walking the streets.  I had to do it."

Gimme a break.

Yeah, Williams is alleged to be a serious criminal.  The government claims that he's the ringleader of a conspiracy to distribute and launder the proceeds from over a million dollars worth of marijuana.  That's a serious crime.  He faces life in prison.

But if the Fish was looking for some true evil to fight, you think maybe he could have found something worse?

Want a guy to set up?  Nebraska has killers awaiting trial.  Nebraska has rapists.  Nebraska has child sex abusers. Nebraska's one baaaaad state.  (Just like the other 49, but that's really not to the point here.)

And the Fish can't find anyone more worthy than Williams for whom he could sell his soul?

Want some great moral challenge to cleanse the soul?  How about working with the desperately poor, with crippled children.  Go and help rebuild Haiti or donate your services to human rights work (or to squelching human rights if you think that's the way to do).

No, not for the Fish.  For him, the noblest and most necessary of activities is using his law license to suck up to Shannon Williams, and then ratting him out. 

Yes, I lied repeatedly to the cops.  Yes, I've lied under oath.  Yes, I've committed a couple of dozen felonies.  But I'm telling the truth now, because I've seen the light and I want to see justice done.  And yeah, the government's offering me a deal to testify today to their version of the truth which you can take my word for it is true because I'm not lying now.  And I'd do it without the deal, because it's the right thing to do.

That's the sort of bullshit spouted by jailhouse snitches and by rolling co-defendants every day in our nation's courts.  I don't know whether juries ever believe it, but they regularly convict people based on the testimony that accompanies it.

There's nothing good to say about snitches or about the co-defendants who roll on each other.  We know they're not reliable.  We know they care only about what they can do for themselves.   We know that they are people who cannot lay claim to any ounce of honesty or integrity.

But they're not the bottom of the barrel.

Dante, who in his hubris gave us the defining model of the circles of hell placed the treacherous at the very bottom, in the ninth of nine.  Just how deep within the ninth circle depended on the nature of the treachery.  The greater the duty owed, the greater the treachery.  The greater the treachery, the further down.

But here's another question. The Fish?  He claims treachery as a moral imperative.  The obligation to be evil.

Which tells us, pretty clearly, where we'll find the Fish.

His name is Terry L. Haddock.  And he's going to the very bottom.

Back to Maricopa

Stoddard's lawyer wants the whole letter.

You remember the letter. It contains the words "going to,” “steal” and “money” grouped near each other in a single sentence at the bottom of the handwritten page. Those words, seen from across a courtroom, on a paper sticking partway out of a criminal defense lawyer's file, alarmed Stoddard because . . . . Frankly, I have no idea. No, that's not fair. Stoddard said that from those four words he thought that the letter was either evidence of a "future crime" or some sort of illegal communication from inside to outside the jail.

That doesn't strike me as a particularly rational inference, but I'm not a Maricopa County Sheriff's employee. In any event, they alarmed Stoddard enough to believe that he had to take that paper and have a copy made. Or so he said. And it's what he did.

When at a later time he read the whole letter later, he decided those fears were unfounded, but he developed an actual "security concern." He testified:

My security concern was knowing Inmate Lozano [the defendant she was standing up in court with at the time] is associated with the Mexican Mafia, and knowing some of the Mexican Mafia history on how they get information from the inside tothe outside, the outside to the inside of the jail, that he could be trying to solicit Ms. Cuccia [his lawyer, the attorney from whose file the paper was taken] to help him in some way, shape, or form in this misconduct.

Let's imagine that's true. So what? Oh, I mean I get it that if there's a conspiracy to coerce an innocent attorney into helping the Mexican Mafia (notice that even the court reporter used uppercase to emphasize the horror of the thing) violate Sheriff Joe's security, it's a bad thing. But what does that have to do with whether Stoddard had any basis to pull the letter out of Cuccia's file?

Let's go back.

When Stoddard, who's some sort of law enforcement officer (Detention Officer isn't a job title in my neck of the legal woods, but I gather he does court security and jail transport work for the Sheriff) first read a paper, or part of one, in Cuccia's file, and then when he took that paper out and had it photocopied, he implicated at least two legal concerns: attorney-client privilege and the Fourth Amendment.

The law of privilege is state specific and riddled with exceptions, but the guts of it is that communications between attorney and client in the course of representation are secret. They're even secret when they include information that law enforcement officers or prosecutors or judges or newspaper reporters might like to have. The privilege can be waived, the communication can be made public, but only with the consent of the client, in this case Lozano. (It's the client's privilege, not the lawyer's). The reason for the privilege is to encourage clients and lawyers to speak freely with each other so that the lawyer has the information necessary to do her job and the client the information necessary to make any choices that need to be made.

The Fourth Amendment is different. You know the text (or you should).

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The protection of the Fourth Amendment is not absolute. The courts have limited it and narrowed it and found exceptions to it so often that it seems mostly illusory today. But it's still there. And it's supposed to mean something. While only the client has a legal right to complain about the violation of attorney-client privilege, it seems clear that both Lozano and Cuccia had a Fourth Amendment protected interest in the contents of her file.

Again, Fourth Amendment law is largely a sea of exceptions, but the underlying principle always applies: Law enforcement cannot search through your stuff without a warrant or some circumstance that makes a warrant unnecessary.

In this case, Stoddard might argue that because he could read the problematic words from across the room, what's known as the plain view exception applies. That exception is, essentially, that cops don't have to be blind. If they see something that is obviously illegal (the legal language is that the problematic nature of what's seen must be "immediately apparent"), they can seize it. But there's nothing about the words "going to" "steal" and "money" in a paper in the file of a criminal defense lawyer that shows the paper's criminal nature to be immediately apparent.

The other potentially relevant exception arises when there's a combination of probable cause and an exigency. Probable cause is sufficient basis to believe that the paper is criminal. An exigency is some circumstance that would make getting a warrant so cumbersome that the evidence would be lost. Even if there were probable cause, and it's hard to see, Stoddard could have asked the judge for a warrant. They were in court, for godssake. In front of a judge. No problem if there was probable cause to get a warrant before Cuccia destroyed the incriminating paper. So no exigency; therefore no exception.

As for probable cause, the Supreme Court says that's enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).

As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

So no exception to the Fourth Amendment. Therefore, no right, none, zippo, for Stoddard to reach in and take the paper (let alone copy it).

Still, this is Maricopa County, so when Judge Donahoe held the contempt hearing, he insisted that Lozano waive his attorney-client privilege in the letter. Or maybe just in the four words Stoddard claims to have relied on.

Now, Stoddard wants it all. He needs the letter, his lawyer says, in order to defend himself. Aside from the fact that it's too late for that - the time to defend was when the contempt hearing was going on - it's hard to see how the letter would help. And he doesn't explain.

Here's the basic reason. You can't justify an act by its consequence. An illegal search doesn't become legal because it turns up drugs. You have to have a legitimate basis to invade the privilege or the Fourth Amendment at the time you do it. Doesn't count if you find the basis later. And Stoddard didn't read the letter until after he swiped it.

What will happen next? As always, this is Maricopa County, so all we really know is that it will be problematic.

But that's the future, because there's more in the present. There's Judge Barbara Mundell.

According to Ray Stern at the New Times, she's the "top judge" on the Superior Court (which would seem to make her the Mt. Everest of judges but who am I to, er, judge) and one of the subjects of four judicial complaints filed by Sheriff Joe's chief deputy on November 30. (The complaints are linked from this page.) Her response, according to Stern:

The allegations are false, frivolous and slanderous. This is the latest attempt to intimidate the judiciary and interfere with the fair, impartial and timely administration of justice. This attempt will fail. The bench of the Maricopa County Superior Court will continue to provide access to the courts, decide cases based upon the law and not politics, protect the rights of victims and defendants and ensure public safety.

It probably won't shock anyone to know that among the other judges against whom complaints were filed is Gary Donahoe. Of course, they're all also facing that civil racketeering suit filed by Sheriff Joe and the County Attorney.

Some people are calling Maricopa County "Marikafka." I don't think that does it justice.

Selling out the client - Part IV (UPDATED with more links and title number fixed)

TYPO FIXED AND MISSING BULLET POINT ADDED

What's lawyer to do?

I'm a criminal defense lawyer. My clients have all violated the law or been accused of violating it or might be accused of violating it. Many have been already been convicted (I do a lot of post-trial work), others were just charged or face the possibility of being charged or seem to be under investigation.

Sometimes the crimes at issue are comparatively minor (possession of small amounts of marijuana, say). Sometimes they're horrific (rape-murders, for instance). Occasionally they make you just shake your head in wonder. (There was the guy who'd been convicted of breaking into the county jail.)

Sometimes the clients did what they're said to have done. Sometimes they did something close to it. Sometimes they're wholly innocent. To me, professionally, it doesn't matter. They all deserve the very best defense I can give them. Innocence (whatever that might be, see here) or guilt (almost as slippery a term as innocence) is simply irrelevant. My duty is to represent the client. Regardless.

But that doesn't really say much, so let me try and pin down a bit what it might involve:

• Meeting with the client. There are three reasons: (1) to explain/answer questions about the charges or sentence and procedures ahead; (2) to get to know and learn about the client; (3) to learn from the client what she knows about the relevant events, about potential defense witnesses and about any ideas she might have.
• Investigation. That's likely both factual and legal. What information can I get from prosecutors and police and former counsel (if any) and from witnesses and records? If there are transcripts I need to get them (or oder them if they haven't been made). What is the relevant law? Are there legal steps I should or could be taking? Are there motions to file? Is there case law that might help?
• Action. Review the record. File the motions. Work out the theory. Prepare the questions for the jurors and witnesses. Prepare the arguments for the court and the jury. Draft the brief. Negotiate. Enter the plea. Try the case. Argue the appeal. Try to convince the judge to release the client.
  
• Assist successor counsel.

The list is necessarily incomplete because each case is its own and you never know what will be necessary in any given case until you get into it. Do I need a forensic psychologist? A mining engineer? An architect? A graphic designer? Should I be consulting with other lawyers? Different stages of representation require different things. So do different cases and different clients. You don't know it all, can't know it all, until you're in the midst of it.

As the list is incomplete, so it is overinclusive. For a variety of reasons, you don't do all of these things every time. (Some are trial specific and others appeal specific; sometimes the client's knowledge of events is truly irrelevant; sometimes fact investigation simply doesn't have anything to do with the nature of the representation; you get the idea.) But it's the job. It's what a professional does. It's what I get paid to do. Within bounds, it's what the client should expect me to do.

But the client expects more and should get more. Despite the jokes, there is such a thing as legal ethics. As a lawyer, I have specific obligations to the client. I've talked about this several times including here and here and here. Here's a couple of them.

• Avoid conflicts of interest. That means I don't represent multiple clients in the same or related cases where it's possible that the interests of one might conflict with the interests of another. It means that I look out for the interest of client A in his case even though I know that it might piss off the prosecutor who may bear a grudge when I've got another case in front of him someday and even though I know that there's some risk it will end up making law that will upset me personally and that may hurt other people I may someday defend. It means other stuff, too, but the key is this: It's about this client. Always.*
• Guard client information. I'm bound, and rightly so, by attorney-client privilege. It comes in different forms. There's actual information we share. It's a secret. There's information I learn in confidence in the course of the representation. It's a secret. There's what I prepare for the representation, my notes and ideas and contacts with witnesses and investigators and experts and so on. All a secret. As a comment to the Ohio Rules of Professional Conduct puts it,

  A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.

  Why? Because the client must be free to tell me the truth knowing that I won't share it, and because what I do for the client is in service to the client and not the prosecutor or the court or the general public or the media or my family or friends who might like to hear a good story.** There are a few, narrow circumstances where I can or must reveal some of that information. Very few.

Both of these rules, like the duty to represent the client competently (an actual formal rule, though you'd think that one didn't really need to be spelled out), are ultimately about recognizing that there's a duty of loyalty to the client. You don't work against your client's interest, and you don't ever use what you learned in representing the client against your client's interest. Never ever.

The American Bar Association, no hotbed of radicalism, promulgates Standards for Criminal Justice: Defense Function that are broadly accepted as representing the basic guidelines for all attorneys practicing in the fields of criminal defense. (They have standards for the prosecution function, too.) Standard 4-3.5(d) sets out a general principle of continued loyalty:

Defense counsel who has formerly represented a defendant should not thereafter use information related to the former representation to the disadvantage of the former client unless the information has become generally known or the ethical obligation of confidentiality otherwise does not apply.

See, the duties don't end when the representation does. The lawyer may never use what one learns in representation to the disadvantage of that client. And that duty is eternal. It does not end with the client's death because the client's interests may well outstrip the client's life.

Which brings us, of course, to Cameron Todd Willingham. You know, the first person in the modern era to be, maybe, formally exonerated after execution. It may not matter much to him, but to those who care about him, it's a big deal. For consequential matters of reputation it sure matters. it is absolutely to his advantage to be recognized as innocent. Even if it won't bring him back.

And so we come to the sleazy, repulsive, deeply disturbing, offensive (help me out here folks) appearance of one David Martin, attorney, in Texas. He represented Willingham at trial.

I've never met this David Martin. (There are others, including a friend of mine, a lawyer in Ohio. It isn't you folks I'm talking about. I'm truly sorry he shares your name.) I have no reason to doubt that he can be tenacious in trial, that he's a terrific cross-examiner, that he bonds with jurors, that he wins more than his share of cases. There's no way in hell I'd hire him or recommend him. I wouldn't want, even, to share a beer with him.

There are lots of ways lawyers can and do screw their clients. They charge too much and do too little. They don't care about the cases. They stop working when the money runs dry. They're in over their heads. They're incompetent. They have terrible judgment. They get the law wrong. They drink too much. They sleep through trial. They don't prepare. They just fuck it up. I could go on. None of that's acceptable. But mostly it's not vicious. Mostly it's not intentional. Occasionally it is. Once in a while it's outright criminal.

But then there's this David Martin. The one who represented Willingham at trial. The one who went on Anderson Cooper and explained that his client, against whom there is, today, simply no credible evidence of guilt, was guilty. He explained how he knows: He poured some lighter fluid on a carpet and set it on fire. The result looked like the carpet that Willingham was said to have set on fire. And the next night, Willingham was buying a round of drinks at a bar. Besides, the state's experts were good. And a bunch of other courts reviewed the case and none said Willingham was innocent.

OK, let's take those in turn:

• The lighter fluid experiment. Martin's no expert. His eye isn't a trained one. Even if the appearance was identical, that wouldn't prove that anyone poured lighter fluid on the carpet and set it afire, merely that the fire left the carpet looking the same way it would have if someone had done that. Are there other ways it could have ended up like that? Martin doesn't know. Wouldn't know. Couldn't know. Doesn't seem even to understand that there's stuff he doesn't know.
• Buying drinks. Willingham may have been a terrible person. Doesn't mean he killed his kids. Even if he were happy they were dead, it doesn't mean he killed them.
• State's experts. Let's assume they were terrific. Doesn't matter. The issue isn't whether they were honest and careful. The issue is whether they were right. We've learned stuff about how fire works since then. (Though some of the information was coming out by that time.) It doesn't take away from Copernicus to say that he was wrong to think the Sun was the center of the universe. In fact, he made a great leap in concluding the Earth was not. But there was still more to learn, and his conclusion was wrong. Science teaches us new things that changes prior understandings. It happens.
• Reviewing courts. Two points. First, they didn't review the reviews of the fire investigation, didn't look at the science. Second, and this is a point pretty much always ignored when we're told the case was reviewed by umpteen courts and a bazillion judges, the reviews aren't about innocence. They're about legal errors at trial. They're not, emphatically not, new trials.
  

So we know that Martin was spouting bullshit. (He claimed to have just returned from "chasing cows," so maybe there's a reason.) We also know that at least one thing he talked about, the lighter fluid experiment, is covered by the work-product privilege. It's a secret. He had no business telling anyone. A clear violation of his ethical obligations.

And then there's the matter of going on the air to declare his client guilty. Why in the world would he do that? To garner business? Unlikely. That's not the way you attract clients. For the glory of national television? Some people just can't resist. Whatever the reason, he was wrong. Whatever he was thinking, he wasn't thinking enough. That duty of loyalty. That obligation not to disadvantage. That lack of judgment. That putting his own interests before his client's.

He's right that you don't need to believe your client innocent to provide a stellar defense. As I said, innocence is, ultimately, irrelevant to the work we do. Proclamations of guilt are something else.

It really is inexcusable. Really. Inexcusable.

Now, read what other lawyers have to say. Here and here and here and here and here (this last is Walter Reaves, Jr., Willingham's lawyer on direct appeal, and it's a link to his front page - the permalink to the particular entry is broken). It's important and telling that these are all from lawyers who do criminal defense work every day, who know what this business is, and are proud to have the chance to do it. Martin really is the outlier. For that, we can be grateful.

Also, you should go to the Texas Moratorium Network, which collects, summarizes, and offers a call to action.
__________
* Mark Bennett's done a couple of important posts about conflict waivers recently (here and here) which touch on some of these issues.
** Scott Greenfield has a this valuable discussion of privilege in the context of blawging.

Ethics v. Morals

Over at Defending People, blogger and criminal defense lawyer Mark Bennett has been carrying on a discussion with his readers about legal ethics. In a posts (here) and a follow-up (here) he's explored some of the implications of this story from the WindyPundit.

The very short version: Back in 1982, and under the confidentiality promised by attorney-client privilege, Andrew Wilson confessed to his lawyers that while robbing a Chicago McDonald's he killed Lloyd Wycliffe with a shotgun. Feeling themselves bound by the privilege, the lawyers said nothing while Alton Logan was tried, convicted, and sentenced to life for the killing. When Wilson died in November 2007, his lawyers asked a judge for permission to lift the privilege. It was granted, they went public. After 26 years in prison, Logan was released in 2008 and charges dropped against him later that year.

What actually set Bennett off is that one of the lawyers, speaking at an American Bar Association conference, said he had no choice under the rules of the profession but to honor the privilege. Nonsense, Bennett huffed. One always has choices. He should at least have thought about whether to violate those rules.

So let's take this opportunity to think about legal ethics a bit.

First, yes, there is such a thing as legal ethics. In fact, in all or nearly all states, one can't even get licensed to practice law without first passing a national multiple choice test on ethics. And all or nearly all states require that to maintain your bar license you have to spend an hour or so every year or two listening to someone lecture on ethics.

Wow! See how ethical we are! Can't imagine where all those lawyer jokes come from. And gee, who would ever accuse another lawyer of misconduct? OK, our standards aren't really that high, and though the establishment bar would likely deny it, the view in the trenches is that criminal defense lawyers and sole practitioners are treated more harshly by the legal ethics police than are prosecutors or folks from big law firms.

Further, the ethical Rules under which we operate (and they vary some from state to state) are designed to endorse the status quo and the power establishment. First rule: Be very careful criticizing judges. See, for instance, the treatment of Geoffrey Feiger (story here just for calling Michigan appeals court justices a series of offensive names and suggesting that they should have anal sex with a toilet plunger) and Mark Gardner (here for writing in a motion for reconsideration that a panel of Ohio appellate judges were result oriented, OK, he said it a lot more offensively than that).

I first took on those rules back when I was in law school, pointing out in a letter in the NY Times Magazine, responding to an article by Scott Turow, that one can adhere to the ethical rules of the profession and still be immoral.

But that doesn't mean the rules are bad. The problem with them is the problem with all rules. They're not much necessary in the easy cases and in the hard ones are either to vague or too rigid.

And the rules of privilege and confidentiality and client secrets (those are actually different categories of things, though they clearly bleed into one another) are especially problematic. What do we do when faced with those problems?

Here are a couple I've become intimately familiar with over the years, one because it was my problem, one because I was asked to represent the lawyer involved, one because I consulted with the lawyer involved. Everyone who's been in this business for a while has these sorts of tales. We each handle them differently, but always (if we have any sense of ethics and morality and integrity, with great difficulty).

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?

Ethics classes mostly talk about things like not stealing money from your clients and not representing both sides in a contract dispute. Those are the easy ones.

But how about:

My client is on death row. I wants to accuse his trial counsel of incompetence for failing to interview witnesses. Trial lawyer thinks he had a good reason for not interviewing those witnesses. Can trial lawyer sign an affidavit that says, "I didn't interview them?" Should trial lawyer then tell the state's lawyer, when asked, that he had a good reason? What's the duty to the former client? Criminal lawyers often speak about defending themselves against claims by their former clients that they were constitutionally ineffective. Should they be doing that?

You won't find answers to these questions in the ethics rules. And they don't test you on them. How you answer, though, says a lot about the kind of lawyer you are. And the kind of person.
It's a tough profession.