When Lawyer Ethics Lead
To An Unethical Outcome
The CBS program "60 Minutes" recently aired an almost unbeliev- able admission by a pair of lawyers who acknowledged they had allowed an innocent man to rot in prison for 26 years because of supposed law- yer ethics.
Briefly, a man was found guilty of murder and sentenced to life in prison. A defendant in an unrelated case told his two lawyers he had done that crime and expressed pleasure another man was serving time for a crime he committed. The lawyers said they were prevented by law- yer-client confidentiality rules and legal ethics from revealing their client's guilt even though an innocent man was sent to prison. One of the two lawyers got his defendant's permission to reveal the confession to the other murder after their defendant's death, which came 26 years after the first innocent man was sent away. The lawyers went public on "60 Minutes."
Strangely, they said they watched the verdict in the sentencing trial of the innocent man and were prepared to step in and tell what they knew if a sentence of death were returned. What is the difference? If their rules prevented them from keeping him out of jail for 26 years, they also prevent them stepping in when death is meted out. They cannot have it both ways.
The American Bar Association claims as its credo, "Defending Liberty, Pursuing Justice." In this case of the two lawyers who sat on their hands until their decades-ago defendant died, allowing them to con- fess, the ABA should be ashamed if the lawyers are considered to have followed the bar's rules and acted legally.
The Illinois judicial system can throw out the innocent man's con- viction, but advocates for his release are going to have a problem proving the now-dead defendant actually committed the crime and the innocent man was, indeed, innocent.
Yes, the legal system has a conundrum in this case. But one does not need to have a law degree, and we do not, to know that a sim- ple solution to that conflict would be to allow a lawyer to reveal to a judge his defendant's confession to the other crime. That confession could not be used against the defendant in his own trial, but could be considered (with the guilty person's name not revealed) in reviewing the other case. To avoid someone confessing in that manner so he can rid himself of other possible criminal acts, the judge or jury in the case could be told the defendant has confessed to another crime without de- scribing it and could take that into consideration in deciding the guilt in the case before them. But the confessor could not be tried for the crime pinned on the innocent man.
Yes, there remains somewhat of a chill in giving up the defend- ant's confession. In addition to it being used as a ruse, the solution is somewhat in conflict with maintaining the purity of a defendant's right to believe in the safety of lawyer-client privilege. And that solution should be limited only to incidents where an innocent man is being tried or has been convicted.
That is a solution offered by a layman. Undoubtedly, the legal system could find other ways to prevent a repeat of this tragedy and guarantee justice is done.
Consider this relevant anecdote from the author:
After receiving the evidence, the jurors met by themselves and agree unani- mously the case should not have been brought. The prosecution had precious little evidence the man's actions amounted to a crime and what evidence it had was ludi- crous. But we could not return a verdict.
Our foreman was a lawyer in private practice and a teacher of law subjects at a local community college. This also was his first time as a juror.
He agreed with everyone else the case should not have been brought and the man's actions were justified in the case presented. But the foreman said our duty was to decide if the man is guilty or innocent based on the letter of the law. No doubt, that is good legal practice under normal circumstances.
The lawyer-foreman held back his one vote that was preventing a unanimous not guilty verdict and the other 11 jurors argued with him, pointing out his own agree- ment the case should not have been brought. The foreman said the letter of the law is the letter of the law and we had to follow it.
After a while, I stepped in and claimed the floor. I acknowledged the lawyer probably was following good legal practice and that the judge had instructed us to consider only the law and the evidence. I also acknowledged that the rules of law had a high and legitamte purpose. But I said there is a system that trumps the rules of law and that laws themselves answered to and served that authority. The authority is jus- tice. His job as a lawyer and a citizen was to mete out justice in this case. How can he bring about justice if he knows a man should not be found guilty, but insists he must be found guilty because of the rules of law. In the end, the legal system is supposed to serve justice.
The lawyer seemed to be very troubled by the conundrum he found himself in. He sat and pondered it in silence for 15 or 20 minutes and finally spoke. "Not guilty," he said.
Ironically, neither I as a journalist nor he as a lawyer would have been allowed on a jury in the past.
The U.S. Congress and the legislatures of most states are domi- nated by lawyers who are elected members.
The tax code is complex because accountants want it that way and law is more complicated than it needs to be because lawyers want it that way. In both cases, the more complex something is, the more the common person needs professional help, for which he or she must pay. But lawyers have a chance in this case to travel the high road. Let us see if anything happens.
