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  1. #1
    captain obvious Lurker's Avatar
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    attorney-client privilege gone too far?

    On the one hand you want attorney-client privilege protected and held sacred, on the other hand you don't want innocent people locked up. Had these guys come forward their testimony would have been thrown out, so what were they to do?....shitty place to be in, thats for sure!


    26-Year Secret Kept Innocent Man In Prison
    March 8, 2008(CBS) This is a story about an innocent man who has been in prison for 26 years while two attorneys who knew he was innocent stayed silent. They did so because they felt they had no choice.

    Alton Logan was convicted of killing a security guard at a McDonald's in Chicago in 1982. Police arrested him after a tip and got three eyewitnesses to identify him. Logan, his mother and brother all testified he was at home asleep when the murder occurred. But a jury found him guilty of first degree murder.

    Now new evidence reveals that Logan did not commit that murder. But as correspondent Bob Simon reports, the evidence was not new to those two attorneys, who knew it all along but say they couldn't speak out until now.

    Alton Logan's story cuts to the core of America's justice system.


    Simon met Alton Logan in prison, where he's spent almost half of his life.

    Asked if he still counts the months and days, Logan told Simon, "There’s no need to count the months and the days. Just count the years."

    Logan said that during the first five or six years he was "consumed" by anger. "Then I come to the realization that 'Why be angry over something you can't control?'"

    Logan, who maintains he didn't commit the murder, thought they were "crazy" when he was arrested for the crime.

    Attorneys Dale Coventry and Jamie Kunz knew Logan had good reason to think that, because they knew he was innocent. And they knew that because their client, Andrew Wilson, who they were defending for killing two policemen, confessed to them that he had also killed the security guard at McDonald's - the crime Logan was charged with committing.

    "We got information that Wilson was the guy and not Alton Logan. So we went over to the jail immediately almost and said, 'Is that true? Was that you?' And he said, 'Yep it was me,'" Kunz recalled.

    "He just about hugged himself and smiled. I mean he was kind of gleeful about it. It was a very strange response," Kunz said, recalling how Wilson had reacted.

    "How did you interpret that response?" Simon asked.

    "That it was true and that he was tickled pink," Kunz said.

    "He was pleased that the wrong guy had been charged. It was like a game and he'd gotten away with something. But there was just no doubt whatsoever that it was true. I mean I said, 'It was you with the shotgun-you killed the guy?' And he said, 'Yes,' and then he giggled," Coventry added.

    The problem was the killer was their client. So, legally, they had to keep his secret even though an innocent man was about to be tried for murder.

    "I know a lot of people who would say, 'Hey if the guy's innocent you've got to say so. You can't let him rot because of that,'" Simon remarked.

    "Well, the vast majority of the public apparently believes that, but if you check with attorneys or ethics committees or you know anybody who knows the rules of conduct for attorneys, it’s very, very clear-it's not morally clear-but we're in a position to where we have to maintain client confidentiality, just as a priest would or a doctor would. It's just a requirement of the law. The system wouldn't work without it," Coventry explained.

    So that was the dilemma. They couldn't speak out, they felt, but how could they remain silent?

    Asked if they contemplated doing something about it, Coventry told Simon, "We wrote out an affidavit. We made an affidavit that we had gotten information through privileged sources, that Alton Logan was not in fact guilty of killing the officer, that in fact somebody else did it."

    "We wanted to put in writing, to memorialize, you know, to get a notarized record of the fact that we had this information back then so that if, you know, 20 years later, 10 years later, if something allowed us to talk, as we are now, we could at least we we'd at least have an answer to someone who says, 'You’re just making this up now,'" Kunz added.

    They sealed the affidavit in an envelope and put the envelope in a lockbox to keep it safe under Coventry's bed.

    While the attorneys kept silent about Logan's innocence, a jury convicted him of murder. Then the jurors had to decide whether to sentence him to death.

    "I was in court the day they were dealing with the death penalty," Coventry recalled.

    Asked why he went to court, he told Simon, "'Cause I had this information that this innocent guy was up there and the jury was deciding whether they’re gonna kill him or not."

    Coventry said his heart was racing when he went into the courtroom. "It was just creepy. Knowing I was looking at the jurors thinking, 'My God, they’re going to decide to kill the wrong guy.'"

    In the end, the jurors spared Logan's life.

    "It was a 10 to 2 vote. Ten for, two against. Two individuals saved my life," Logan explained.

    And the jurors saved Kunz and Coventry from coming forward. "We thought that somehow we would stop at least the execution. We weren’t gonna let that go," Coventry told Simon.

    "But instead he was sentenced to life in prison, and you did not do anything?" Simon asked.

    "Right," Kunz said.

    "So it’s just okay to prevent his execution if necessary, but it was not okay to prevent his going to prison for the rest of his life?" Simon asked.

    "Morally there's very little difference and were torn about that, but in terms of the canons of ethics, there is a difference, you can prevent a death," Coventry replied.

    "But the minute he was not sentenced to death, the minute he was sentenced to life in prison, you decided to do nothing?" Simon asked.

    "Yes," Kunz said. "I can't explain it. I don't know why that made the difference but I know it did."

    "There is no difference between life in prison and a death penalty. None whatsoever. Both are a sentence of death," Logan told Simon.

    Logan said while he could sympathize with the attorneys' problem of not being able to speak up, he couldn't understand it. "'Cause if you know this is an innocent person, why would you allow this person to be prosecuted, convicted, sent to prison for all these years?" he asked.



    "What did you do to see if there might be some loophole to get everyone out of this fix?" Simon asked the attorneys.

    "I researched the ethics of attorney-client privilege as much as I could. I contacted people who are involved in making those determinations. I know Jamie did the same thing," Coventry said.

    "I could not figure out a way, and still cannot figure out a way, how we could have done anything to help Alton Logan that would not have put Andrew Wilson in jeopardy of another capital case," Kunz added.

    "Couldn’t you have leaked it to somebody? To a reporter, to an administrator, to the governor, to somebody?" Simon asked.

    "The only thing we could have leaked is that Andrew Wilson confessed to us. And how could we leak that to anybody without putting him in jeopardy?" Kunz replied. "It may cause us to lose some sleep. But, but I lose more sleep if I put Andrew Wilson’s neck in the in the noose."

    "He was guilty and Logan was not. So, yes his head should be in the noose. And Logan should go free. It's perfectly obvious to somebody who isn’t a lawyer," Simon pointed out. "Andrew Wilson was guilty, was he not?"

    "Yes. And that's up to the system to decide. It's not up to me as his lawyer to decide that he was guilty and so he should be punished and Logan should go free," Kunz said.

    "Do you think you might have been disbarred for doing that, for violating attorney-client privilege?" Simon asked.

    "I don't think I considered that as much as I considered my responsibility to my client. I was very concerned to protect him," Coventry explained.

    "But here is a case where two men, you two were caught up in this bind. And chose to let a man rot away in jail," Simon remarked.

    "It seems that way. But had we come forward right away, aside from violating our own client's privilege, and putting him in jeopardy, would the information that we had have been valued? Would it have proved anything?" Coventry said.

    Probably not, they say, because as a violation of attorney-client privilege, it would never have been allowed in court. They insist that for them, there was no way out.



    "In terms of my conscience, my conscience is that I did the right thing. Do I feel bad about Logan? Absolutely I feel bad about Logan," Coventry admitted.

    The attorneys say they were so tormented over Logan's imprisonment that they convinced Wilson to let them reveal that Wilson was the real killer after Wilson's death. Late last year, Wilson died. The two attorneys finally took their affidavit out of the lockbox, and they called Logan's lawyer, pubic defender Harold Winston.

    Winston had already been trying to get Logan a new trial. He'd found two eyewitnesses who swore Logan was not the killer. Now, with Kunz and Coventry's affidavit, he thinks Logan will finally go free.

    "I know the attorney general's office of Illinois is considering this. And I have a lot of respect for that office," Winston said. "And I'm hoping they will come to the right conclusion, that a mistake has been made. And if they do that, he would go free."

    And even though Winston represents Alton Logan, he agrees the two attorneys had to remain silent until Wilson died. "I wish there had been a way this could have come out earlier. Under the…Illinois ethics code, I think the only way would have been if Andrew Wilson had released his lawyers earlier," he explained.

    "There may be other attorneys who have similar secrets that they’re keeping. I don't wanna be too defensive but what makes this case so different, is that Dale and I came forward. And that Dale had the good sense to talk to Wilson before his death. And get his permission. 'If you die, can we talk?' Without that, we wouldn't be here today," Kunz said.

    "See, I never stopped giving up hope. I've always believed that one day is gone-somebody's gonna come forth and tell the truth. But I didn’t know when," Logan told Simon.

    "Do you feel that they should have somehow spoken out to get you out?" Simon asked.

    "They should have but they didn’t," Logan said.

    Asked what they would say to him if they were able to visit Logan in his cell, one of the attorneys said, "There's nothing you can say. Well, it’s been difficult for us. But there’s no comparison what so ever to what it’s been for this poor guy."

    "How has it been difficult for them?" Logan inquired.

    "Alton, whether or not you can understand it, we’ve been hurting for you for 26 years," Kunz said. "How often did I think about it? Probably 250 times a year. I mean I thought about it regularly."

    "Everything that was dear to me is gone," Logan, who missed his mother's funeral, told Simon.

    His brothers Eugene and Tony told 60 Minutes they've shared Alton's pain, and they always knew that he was no killer. "My brother ain’t got the nature to do nothin' like that in his soul. He ain’t gonna take nobody else's life. We weren't raised like that," Tony said.

    Tony said he knew right away his brother couldn't be the killer. "He was with me. I knew it wasn’t my brother. I always knew it wasn't my brother," he said.

    "Your brother is 54 now. Can he start again at the age of 54?" Simon asked.

    "I think we gonna make it," Eugene said. "If he get from behind them bars, I’m gonna turn him back on to life. And we gonna live it together. We’re gonna live it together."

    But Alton Logan is still behind bars. "They are quick to convict but they are slow to correct they mistakes," he said.

    If he gets out of prison, Logan told Simon he wants to leave Illinois and go live with his little brother in Oregon.

    But that could take some time. A judge must decide whether Logan will get a new trial; and Illinois' attorney general must decide whether to let him out without one. It's all rather complicated, whereas what Logan wants is deadly simple.

    "All I wanted was the truth. All I want is the truth," he said.

    "And the truth shall set you free," Simon remarked.

    "Yes it will," Logan said.


    Tomorrow, March 10, in a Chicago courtroom, a judge will hear arguments about whether to grant Alton Logan a new trial.


  2. #2
    Student of Speed rxpwhistler1's Avatar
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    WOW!!

    honestly it's easy to say accept the things we cannot control, but if the justice system failed me and put me in for life for something I never did, I WOULD BE FURIOUS FOREVER! Can you imagine how you would feel? All of those years off of your life, for nothing. Rotting because the "man" said you need to be, when he knows not the truth!

    NUTS! Good story though

  3. #3
    Some states changed their rules (after Enron) to either require or allow disclosure of client secret if injury to person or property is imminent. Same issue may confront a psychiatrist or even a priest who hears a threat or a secret in confidence. Thats one of the reasons why those Menendez brothers got convicted for killing their parents. Their admissions to their psychiatrist were secrety tape recorded by the the psych who said he feared for his life. They were therfore admissable in court.

    Ironically, the result here may have been different if the real murderer had ever been asked under oath if he had ever killed anyone. Most states require or allow attny to either reveal known perjury or to withdraw. Thats why William Bennett had to go back and tell the federal judge in the Paula Jones case that his client lied about not having sex with Lewinsky.

  4. #4
    captain obvious Lurker's Avatar
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    I wonder who failed in this case, the jury, prosecutor, defense....all of the above?

    Hey Blue, what is the legal definition of injury? Does being locked up for life count? Are we talking injury that one can see or needs meds for?

  5. #5
    Moderator Franko's Avatar
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    This is an issue that has long plagued all professions governed by confidentiality or privilege rules. What do you do when your professional ethical rules require you to do something (or refrain from doing something) that conflicts with your moral ethics? Unfortunately, in this case, the rules are clear. These attorneys were required by their professional obligations to keep this info to themselves. The privilege belongs to the client, not the lawyer. So any waiver of the privilege would have to be made by the client, not the lawyer. They were actually fortunate that the client agreed to allow disclosure after his death or this guy would sit in jail for life. It's a tough case that is hard for most people to understand.

    Most states do have a crime/fraud exception to the attorney-client privilege, but that rule doesn't apply here. The rule allows disclosure if the attorney's services are being sought or used to perpetrate a future crime or fraud. It doesn't apply to past crimes.

    This case is exactly why I could not be a criminal lawyer.

  6. #6
    Student of Speed rxpwhistler1's Avatar
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    agreed

    Quote Originally Posted by Franko View Post
    This is an issue that has long plagued all professions governed by confidentiality or privilege rules. What do you do when your professional ethical rules require you to do something (or refrain from doing something) that conflicts with your moral ethics? Unfortunately, in this case, the rules are clear. These attorneys were required by their professional obligations to keep this info to themselves. The privilege belongs to the client, not the lawyer. So any waiver of the privilege would have to be made by the client, not the lawyer. They were actually fortunate that the client agreed to allow disclosure after his death or this guy would sit in jail for life. It's a tough case that is hard for most people to understand.

    Most states do have a crime/fraud exception to the attorney-client privilege, but that rule doesn't apply here. The rule allows disclosure if the attorney's services are being sought or used to perpetrate a future crime or fraud. It doesn't apply to past crimes.

    This case is exactly why I could not be a criminal lawyer.
    I totally agree. Lawyers work on finding loopholes and some of them are just insane. I love the excitement involved, but I couldn't live with myself if I were one of those lawyers in that case. I tend to stand up for what's right, regardless of the consequence. Letting an innocent man rot away in prison is wrong, plain WRONG! Shit, this makes me angry and it's got nothing to do with me!

  7. #7
    Quote Originally Posted by _Lurker_ View Post
    ...Hey Blue, what is the legal definition of injury? Does being locked up for life count? Are we talking injury that one can see or needs meds for?
    After Enron, some states changed the rules to permit a lawyer to blow the whistle on an illegal plan that may result in financial harm to others, this is an expansion of the definition of "injury" beyond merely "physical."

    RXPW, let me ask you a "hypothetical" taken from the real world right here in small town America. Before he was elected to Judge, lawyer GA was the executor of an estate. He sold an estate property at a great price to Mr. X who then started making payments on GA's auto lease. An obviously tainted transaction.

    Years later Mr. X happens to mention the deal in passing to his lawyer, DS. DS reveals his client's secret to the state bar. Judge GA is kicked off bench. Mr. X gets in no trouble but is very angry and gets attny DS suspended for revealing a client secret.

    The local newspaper and many people thought that DS was a hero and did the right thing. Yet most lawyers thought it was a terrible breach of confidence. Some thought DS was just angry over losing some case and exploited his client to advance a personal agenda. He used the story to launch a campaign for a seat on state supreme court. But what do you think, RXPW?

    I agree with you guys that you have to keep your own moral compass no matter what. But sometimes its not easy to tell if someone else is wearing a hat that is white or black. Sometimes these hats come in shades of grey.

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