By Mark David Blum, Esq.
An innocent man spent twenty six years in prison. Two lawyers had evidence to clear the man but kept quiet despite his almost being executed. One of their clients had confessed to the crime. Only after the client’s death and only with his prior permission were the two lawyers allowed to attempt to make right the wrongful conviction and imprisonment. I feel their pain.
As a general rule, for a lawyer the question posed is a no-brainer. “Silence at any cost” comes with the territory. There are times attorneys are required by cannons of ethics and legal obligations to do or not and say or not say things that no hot shower can wash off. Next time you complain about legal fees, ask yourself how much you would charge to swallow your bile and stand up for the law and the client.
Television is no help. America’s most watched re-run since Gilligan’s Island is the show ‘Law and Order’. While I personally am among the addicts, at the same time I am the show’s #1 critic. First of all (and this happens in every episode), if you are going to ask the witness a zinger question and you know your opponent is going to scream out in pain, the proponent always responds with “withdrawn”. How stupid is it to stick a knife in someone and then say, “oops, nevermind.” Wait for the ruling and if you win, you get the ask the question again; louder and harder.
More importantly for this discussion are three specific episodes of the series. Everybody knows these episodes. In one of them, a public defender representing a murderer is imprisoned for refusing to disclose privileged information (whereabouts of bodies). Another episode shows an assistant prosecutor breaching privilege to prevent a wrongful conviction and getting away with it. Finally, there is the episode where a kidnapper is hiding a child and the lawyer is arrested as an accomplice.
Those old enough to remember our own Robert Francis Garrow, notorious serial rapist and murderer who, in the course of his trial, famously testified, “how he had told both his attorneys, Francis Belge and Frank Armani, the details of each of these murders and where the bodies of the victims could be found. He said these conversations took place months ago and that the attorneys had brought him photos of the dead girls for him to identify.” A court demanded both attorneys be investigated because they, “told neither police nor one of the dead woman’s parents who had come to them seeking information concerning her whereabouts. They only came forward with their jolting admission only after their client had waived the privilege.” The price paid by the attorneys was horrendous. “Both lawyers received death threats during and after Garrow’s trial. They took to carrying loaded guns in their briefcases and lived in fear for many years that someone would take revenge for their stubborn defense of a ruthless killer like Robert Garrow. Their respective law practices crumbled. Clients and friends deserted them. Debts piled up. Belge gave up his practice and moved to Florida. Armani stuck it out and, over the years, he was able to salvage his practice.” (Robert Garrow: The Predator by Mark Gado).
It is almost shameful that anybody would call into question the defense attorneys’ retention of those secrets. Giving them up would mean violating the privilege of the client’s confession. That rule is not ours; it is yours. The rule holding as sacred and inviolate the trust a client puts in his or her attorney comes from the public’s demand. It is the law. As we all know, the law is the law and ignorance thereof is no defense.
According to New York State Law, specifically the Cannons of Professional Responsibility, DR 4-101(B)(1) and (B)(2), a lawyer SHALL NOT reveal the confidence “or secret” of a client or use such information against a client. Only five exceptions apply. Permission from the client, when required by law or Court Order, sometimes to prevent a crime, to defend against the client, or to correct a later discovered fraud. The rationale and defense of that rule is easy. As stated at EC 4-1, “Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ the lawyer. A client must feel free to discuss anything with his or her lawyer and a lawyer must be equally free to obtain information beyond that volunteered by the client. A lawyer should be fully informed of all the facts of the matter being handled in order for the client to obtain the full advantage of our legal system.”
With this burden shouldered over a career, secrets and confidences pile up. There are times I cannot read the newspaper without knowing how wrong they are. Hearing detailed confessions of a child molester or killer or drug dealer leaves a mark upon your soul. It changes a human being and I doubt anybody is impervious to scars.
Of course, this is not a problem for the starched shirt crowd hidden in cubicles of the big downtown law firms. The biggest scar they risk is from papercuts.
Syracuse’s own living version of Clarence Darrow, the esteemed Edward Z. Menkin, Esq. is famously quoted as saying, "The only law that matters is criminal law; everything else is just about other people's money." Nothing more accurately describes the work of a criminal defense attorney.
We volunteer to shoulder these burdens and take these risks because at its core, the heart of a true criminal defense attorney is centered on the fight and the law. We do not judge our clients. There are times when no amount of money can soothe over the pain lurking just below our snake-ish skin. The constitution, the law, justice, fairness, and the preservation of rights and privileges are the defense attorney’s primary focus.
What we cannot do is disobey the law or the trust placed in us by the public. This has to be the case even when the public is mobbed in front of our offices with burning torches. We the People of the United States depend on our criminal defense attorneys to stand tall against the angriest of the public. “Disobedience or evasion of a constitutional mandate may not be tolerated, even though such disobedience may, at least temporarily, promote in some respects the best interests of the public.” State v. Board of Examiners, 274 N.Y. 367; 9 NE 2d 12; 112 ALR 660. The “best interests of the public” are always best served when the lawyer ignores the best interests of the public and focuses instead on the best interests of the client.
There are no words sufficient to describe the unimaginable pain carried by a lawyer helpless to free an innocent man. Knowing the whereabouts of murdered children and not being able to tell even their parents has to hurt. Confessions can cause incredible personal suffering to the lawyer.
Though we search for Diogenes’ blessings, in the end a defense attorney is but a Sisyphean stand-in fighting a career long Pyrrhic battle. We have no allies but the Law.