Richard Zitrin's Change of Heart on Disclosures to Prevent Wrongful Incarceration

Inspired in part by the recent resolution of the Macumber case, Richard says he has had a change of heart and now believes that lawyers should be permitted to disclose confidential information to prevent wrongful incarcerations or executions.  I agree with Richard.  In my view, more jurisdictions should follow the lead of Massachusetts in this regard. 

UPDATE: We had a useful exchange about related issues here.

Comments

[Monroe Freedman]

How many times has disclosure in such a case happened in Massachusetts?

If ever, was the client whose confidences were revealed an indigent defendant represented by court-appointed counsel, or was the client paying a fee?

[Andrew Perlman]

Monroe,

I have not heard of the exception being used in Massachusetts.

[John Steele]

Andrew and Monroe:

Here's the skeptical view. If any particular exception to the duty of confidentiality is on the books but rarely if ever invoked, then its existence is due to the need to make the profession look better rather than to the need to further justice.

Also, I've always found it hard to believe that people would have applauded the lawyer Kunz for stepping forward to free the non-client Alton Logan when that revelation surely would have led to death penalty charges against Kunz's client. I've also found it hard to believe that people would have applauded the lawyer's revelation if it meant that the next go-round the client would not have been so honest with Kunz.

I noticed that Richard's column doesn't expressly bite the bullet and acknowledge either of those possibilities. At the risk of sounding defeatist, I wonder if in this vale of tears we can really eat our cake and then have it too. Can we really free the non-client without hurting our clients?

[Alice Woolley]

As Andy knows I line up with Monroe and John on this one. With that said, in Canada there is no exception to confidentiality to allow disclosure in such circumstances. Under the doctrine of privilege, however, there is an innocence at stake exception. For that exception to be satisfied it has to be shown that the privileged information goes to demonstrating innocence on an element of the offence (e.g., not just the credibility of a witness) and also that breaching the privilege is the only way to obtain the information and is also the only way for the accused to establish his or her innocence.

If the exception is satisfied then the information may be disclosed to the defence counsel for the accused but not to the Crown. Once the Crown learns of it - and this is the key point - the privilege holder is entitled to both use immunity and derivative use immunity with respect to that information. That is, it cannot be used against the privilege holder directly and nor can other information or evidence obtained as a consequence of the disclosure.

This perhaps would eliminate your dilemma John. A caveat though: I don't know of any case in which an accused has actually been able to use the innocence at stake exception. In one of the cases at the SCC the information did not go to an essential element and in the other case the Crown case was viewed as so weak that it wasn't necessary to allow the disclosure in order to prevent conviction. The courts seem quite reluctant to pierce privilege in these circumstances. Also of course the lack of an exception to confidentiality makes it less likely that a person will ever know of the existence of the information.

Alice

[PrimeOutsourcing]

Hi, Thanks for this article. I have not heard of the exception being used in Massachusetts. and How many times has disclosure in such a case happened in Massachusetts?

[Monroe Freedman]

Alice, Were the privilege-holders fee-paying clients?

Did the privilege-holders approve of disclosing the information, perhaps because of the immunities they would receive?

[Andrew Perlman]

Part of the problem here is that we have very little empirical evidence about how this exception would be used. Based on the Massachusetts experience, I suspect it would be used very rarely and would thus not have the ex ante chilling effect that John suggests. But just because it would be invoked rarely does not mean it is not worth having.

Regarding Monroe's point, I agree with him that, to the extent the exception is used, it would be used more often in the context of appointed counsel cases. But this doesn't mean that fee-paying clients' information is given greater protection than information provided to appointed counsel. I would just interpret this to mean that the majority of criminal prosecutions (I've seen 80%) involve defendants with appointed counsel, so we would necessarily expect this issue to arise more often in appointed counsel cases.

[Richard Zitrin]

I don't know if the exception has been used in Mass. I do know that Macumber and Logan - the two most recent compelling cases - sat in prison for 37 and 26 years respectively. Those are real people who lost those years. Thus my change of heart.

There have been other such cases, like the fella named "Popeye" who killed a barber when he didn't like his haircut, then claimed an innocent guy was there and did it. We had excerpted that case in our text, but took it out and replaced it with a version of this article.

BTW, it may be hair-splitting but I'm talking about people in prison for life. It's tough to draw a line, though.

I don't see how "fee-paying" has anything to do with it. In all the felonies I tried back in the day, it made absolutely no difference to my lawyering whether the client was paying my fee, or whether it was the court, or a pro bono case. Why would that matter to any self-respecting attorney? If it might matter in Mass b/c of the rule, I'd be unhappy with that.

I'm curious, Monroe, if you're reading this, how you feel about the article (which quotes you talking, I think, to Liptak). Writing it, I was, of course, thinking about you.

[Richard Zitrin]

I should have added that the Mass exception is too broad, if I recall it correctly (and I checked Andy's link). It refers to "incarceration." Does that mean that if someone gets a 30-day jail sentence, the lawyer can break confidentiality to reveal that that person is innocent. I hope not!

To me, the question turns on the extent of the injury. Life in prison is a torture of a palatable kind, exacerbated by the prisoner's knowledge of his (or her) innocence. Without an injury standard, which the Mass. exception doesn't have, I'd oppose such a rule.

Richard

[Andrew Perlman]

Richard,

It's hard to draw lines when it comes to prison sentences. A 40 year sentence for a 60 year old may be a life sentence. A 50 year sentence for a 20 year old may not be. Does the sentence actually have to be "life" for the exception to apply?

In my view, the Massachusetts Rule gets this right because it gives the lawyer discretion. I can't imagine that a lawyer would exercise that discretion when someone is facing a 30 day sentence. But I don't see why we'd want to rule out the exception when it's a 30 year sentence. To my knowledge, no mischief has arisen in Massachusetts despite the theoretical breadth of the Rule.

[Richard Zitrin]

Well, we agree on most of this, Andy. It IS hard to draw the line. I see it - really, upon reflection since my piece was published - as closely relating to "substantial bodily injury." I'd make that connection in my 1.6, perhaps in a comment, something like (off the top of my head) "Imprisonment for life or other severe incarceration may constitute "SBI" in some cases, ...." My comment would also have some suggestions about the status of the defendant, which doesn't enter into the Mass. rule.

BTW, I thought the rule said "imprisonment" but on revisiting it this a.m., I see it says "incarceration." Certainly broader, in one sense. But in another, it would include pre-trial detentions of great length. On the whole, incarceration is too broad for me.

[Monroe Freedman]

My point is not that *more* indigent clients would lose confidentiality under a rule that allowed lawyers to reveal confidences in cases of wrongful incarceration. Rather it is that *only* indigent clients would lose confidentiality under such a rule. That would make it even more difficult for lawyers representing indigents to establish relationships of trust and confidence with their clients, who have not chosen their lawyers.

Like many criminal defense lawyers who represent, or who have represented, indigent defendants, I believe that poor people should receive no less effective representation than those who can pay a fee. That is why I regard de facto discrimination against indigent clients as a bad thing - under the rule we're discussing now, by a lower level of confidentiality and a consequent mistrust of their defense lawyers.

[Gary Miller]

Richard-

Great article and analysis. Doesn't this issue proves that that the question of "where do we draw the line?" depends on "who gets to draw the line?"?

I agree with Monroe- lowering the level of confidentiality adds to mistrust and disproportionally affects those who cannot afford counsel.

[Richard Zitrin]

At the risk of disagreeing with my dear friend Monroe and my good buddy Gary, I must say I don't understand why indigent clients will be harmed and others not. At least under what I'm suggesting, which is much narrower than Mass.

First, as Monroe notes, this doesn't happen every day. We've all cited four cases over the last few years. Four, not 104. Even if there were more freedom to reveal, there would be few instances, as Mass. has shown.

Second, why do we see such a revelation as abandoning an indigent client rather than a richer one? As Monroe and I discussed off-line, I would consider it my obligation to advise my client, rich or poor, of what I was doing and why, and provide counsel for him/her. Under these circumstances, I don't think counsel would be difficult to find.

And Gary, under my proposed line-drawing, I guess I get to draw the line!