tag:blogger.com,1999:blog-5945843206427351559.post8312592754765288512..comments2024-01-25T14:51:13.377-05:00Comments on Gamso - For the Defense: EpiphanyJeff Gamsohttp://www.blogger.com/profile/09869425697771419546noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-5945843206427351559.post-75447812769413280722012-06-12T14:45:50.126-04:002012-06-12T14:45:50.126-04:00I started from the premis that the statement was p...I started from the premis that the statement was privileged. But all that is beside the point. The actual point is that there are circumstances where the correct ethical (and/or moral) answer isn't self-evidently clearAbs Pipehttp://www.pisces-aqua.co.uknoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-28159053297894300092012-06-04T14:19:46.212-04:002012-06-04T14:19:46.212-04:00They're talking about turning in the client wh...They're talking about turning in the client who's planning to kill one of the witnesses against him, not about one who makes an allegation that, if believed after a hearing, might take someone off death row. Though I suppose that the rule would likely be extended to resolve a grievance in favor of the lawyer IF the allegation actually got believed and saved the life.Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-90622488645385811782012-06-04T14:10:53.454-04:002012-06-04T14:10:53.454-04:00Always glad to provide a literary feast.Always glad to provide a literary feast.Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-11990653041583585302012-06-04T14:06:37.840-04:002012-06-04T14:06:37.840-04:00Of course cops lie. It's like that since the d...Of course cops lie. It's like that since the dawn of time. It is as true as Barack Obama is the first black president of the United States. By the way, I appreciate the Shakespeare quote.Anne Robertshttp://lalawyersjournal.blogspot.com/noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-81977357266453539302012-06-04T11:40:01.519-04:002012-06-04T11:40:01.519-04:00Not to belabor a side issue in your post, but the ...Not to belabor a side issue in your post, but the Rules of Professional Conduct, at least in Indiana [Rule 1.6(b)(1)], appear to permit, but not require, disclosure of ordinarily privileged communications without the client's permission "to the extent the lawyer reasonably believes necessary . . . to prevent reasonably certain death or substantial bodily harm," which would seem to cover both the situation where an innocent man is about to be executed and the analogous situation where the client informs his lawyer that he has arranged to have a witness against him killed.John Kindleyhttp://peoplevstate.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-9954206823505713202012-06-04T01:19:41.172-04:002012-06-04T01:19:41.172-04:00A consolidated reply:
First, I started from the p...A consolidated reply:<br /><br />First, I started from the premis that the statement was privileged. If it is, I don't know of any ethics rules (moral rules are a different question) that would permit disclosure without the client's permission. There was a case in Illinois a couple of years ago, you may recall, where lawyers sat on an admission of guilt for something like 26 years while the innocent guy stewed in prison. They acted ethically, but there was considerable discussion over the morality of it. I was tangentially involved in an analogous case a few years ago, this time actually concerning someone on death row - though not with an imminent date. The problems are real, actually occur, and are confounding.<br /><br />As for use immunity, I can't imagine it would be embraced by the prosecutorial community which is inclined, in any event, to believe that all claims of "I did it, the guy you convicted of it is wholly innocent" are fabrications. A procedure for routinely providing immunity to folks who made those claims might encourage the odd person to fess up. It would almost surely, as you note, encourage false confessions.<br /><br />I've also had to deal, personally, with something remarkably close to the "analogous situation" you mention.<br /><br />When I say that these are real ethical issues that real criminal defense lawyers encounter, I'm not just speaking hypothetically.<br /><br />But all that is beside the point. The actual point is that there are circumstances where the correct ethical (and/or moral) answer isn't self-evidently clear. But lying under oath, or whomping someone (or killing him) because he didn't genuflect with an appropriate degree of subordination isn't among them - not even a close call.<br /><br />And yes, there are movies.Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-40013846672449607942012-06-04T01:02:11.330-04:002012-06-04T01:02:11.330-04:00There's a dramatic difference between adding a...There's a dramatic difference between adding additional facts (even if that's improper, which it isn't always) and lying. Of course, the additional facts can be lies, but really that's all beside the point.<br /><br />Nobody is calling for a program to gently teach, in a nicely supportive way, defense investigators that lying under oath is wrong. Perhaps more to the point, judges and juries (and prosecutors) don't typically pretend to believe and otherwise excuse lies from defense investigators as they do from the police. And of course the police have a special role in our society.<br /><br />On the other hand, I've long maintained that just about everyone lies on the witness stand. The first lie, I have said more than once, is swearing to tell the truth.Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-28983809003238998602012-06-03T23:43:41.444-04:002012-06-03T23:43:41.444-04:00Yes, Cops lie. It is certain true. I was affected ...Yes, Cops lie. It is certain true. I was affected by a lire cop.Expert Witnesseshttp://www.tasanet.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-28503140477932974752012-06-03T16:35:19.766-04:002012-06-03T16:35:19.766-04:00Do cops lie? Of course - and it's unacceptabl...Do cops lie? Of course - and it's unacceptable.<br />Do they lie more than defense investigators (whom I've caught lying and inserting new facts after witness statements were signed)? It's probably a tie -- but the cops testify more often, and have a bigger trail of reports, notes, and radio recordings for cross-examination.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-70682024132676394642012-06-03T14:34:54.094-04:002012-06-03T14:34:54.094-04:00Sorry for not realizing everything I wanted to say...Sorry for not realizing everything I wanted to say in one comment. The provision of use immunity would make it too easy for a buddy to claim he did it in order to get his guilty buddy off, wouldn't it? What a mess. I'm sure there must have been a movie based on this kind of scenario.John Kindleyhttp://peoplevstate.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-17290930403750066832012-06-03T14:01:55.162-04:002012-06-03T14:01:55.162-04:00On the other hand, in the absence of use immunity ...On the other hand, in the absence of use immunity this disclosure could get your client himself killed. While the ethical rules seem to permit disclosure of privileged communication to prevent reasonably certain death or substantial bodily harm, not sure ethics or morality dictates that we should "prefer" our own client be potentially killed rather than somebody else's client, even though our client is "guilty" and the other poor guy is innocent of the crime our client committed. Hope I never find myself in that kind of situation. Again, use immunity would really seem to be called for there, and it seems the enterprising defense lawyer could figure out a way to make it happen.John Kindleyhttp://peoplevstate.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-34318147417932772562012-06-03T13:50:21.255-04:002012-06-03T13:50:21.255-04:00"What, exactly, is my obligation when my clie..."What, exactly, is my obligation when my client tells me in confidence covered by the attorney-client privilege that the guy who's being executed next week is innocent of the killing and my client knows that because he's the one who did it?"<br /><br />You may have stumbled on the holy grail of death penalty abolitionists, so long as you keep your mouth shut till after the killing: the execution of a demonstrably innocent man.<br /><br />Seriously, though, seems that the law, or at least the relevant prosecutor's office, should provide for use immunity in this type of situation. As I've noted before, professional ethics would seem to permit although not require disclosure of the privileged information in this kind of situation, and "morality" would seem to therefore maybe require disclosure, since professional ethics apparently permits it. (Unless there is a subsection of the ethics rules of which I'm not aware, in which case by all means correct me, and I will duly amend my opinion. An analogous situation is if your client informs you he's arranged to have a witness against him killed.)John Kindleyhttp://peoplevstate.comnoreply@blogger.com