Danmed if You Don't . . .

Over at Volokh Conspiracy there's a spirited discussion going on about an issue that I wish I'd thought up when I was putting together my law school ethics project. The basic facts, taken from a CBS story which was featured on 60 Minutes tonight are:

Alton Logan doesn't understand why two lawyers with proof he didn't commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn't commit....

Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan's arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn't....

The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.

The thrust of the 60 Minutes piece (which doesn't include any commentary from any legal ethics experts or anything) and many of the VC comments is that Wilson's attorneys let an innocent man rot rather than risk their careers or the risk the life of their obviously guilty slimeball client client. The reality isn't that simple, of course.

For starters, just what rules are we talking about? For a WV perspective, Rule 1.6 of the WV Rules of Professional Conduct only allows disclosure if (1) the client consents, (2) the client is about to commit a crime, or (3) in a dispute between the lawyer and client. Some states provide an exception to prevent another person's death, though not Illinois, where this drama played out. A small number (perhaps only Massachusetts) throw in sever bodily injury, but it's not clear whether wrongful conviction would fall under that heading.

Even assuming that Wilson's attorneys had "done the right thing" and betrayed their client's confidence, it's not clear it would have made a difference. For one thing, as Wilson's attorneys point out, it's unlikely that Wilson's confession to them would have ever made it into Logan's trial. The only reason they're able to come forward now is that Wilson allowed them to breach privilege when he died. Had they breached the confidentiality at the time of Logan's trial, Wilson surely would have asserted privilege to stop his lawyers testifying in open court.

For another, even assuming the confession would make it into court, it's not clear it would have spared Logan his fate. According to the 60 Minutes story, three eyewitnesses testified that Logan was the killer, while several of his family members testified that he was home with them at the time of the murder. Obviously, the jury weighed that testimony and concluded that the eyewitness testimony was more credible. Would Wilson's admission have swayed them? Possibly, but not necessarily. Given the way he revealed it to his attorney, it doesn't sound like he was quite right in the head. A jury, particularly one that bought into the testimony of several eyewitnesses, might conclude it was false (for whatever reason).

Thus, when thinking about the ethical/moral duties of Wilson's lawyers, one has to consider the realities of what might have happened had they breached privilege. Folks who don't deal with the criminal justice system assume that because someone else admitted they did the crime that the system would have released Logan without further ado. Sadly, it just doesn't work that way. As Logan put it on 60 Minutes, there's a rush to convict, but the system takes its own sweet time fixing mistakes. There's also a built-in bias towards affirming convictions, whether on direct appeal or in other proceedings, that's exceedingly difficult to overcome (ask me how I know!).

While the ethical angle makes for juicy TV, the more wide-ranging issue in Logan's case would appear to be that it is yet another example of a wrongful conviction being secured with faulty eyewitness testimony. We need to break down the false assumption that eyewitnesses are the best source of information. Even if they are completely certain about what they think they saw, frequently they aren't. No dishonestly required - we're just not very good at accurately recording information in high-stress situations. Like, say, when someone's getting killed nearby.