Column: Innocence over confidentiality
When I saw the story on “60 Minutes,” it was difficult to digest the injustice of it.
The story: A Chicago man, Alton Logan, served 26 years in prison for the murder of a McDonald’s security guard he did not commit. He was rotting in prison while four lawyers knew he was innocent from the outset — their client committed the crime — but because of lawyer-client confidentiality, they remained silent until their client died in prison for the unrelated murders of two police officers some 21/2 decades after Logan was convicted.
Upon hearing their client’s confession, the four lawyers drafted an affidavit stating that Logan was innocent, locked it in a strong box and stored in under the bed of one of the lawyers.
The moral, legal, ethical and intellectual issues involved prompted me to track Logan down, have lunch with him in Chicago and, finally, write a book with him: “Justice Failed: How ‘Legal Ethics’ Kept Me in Prison for 26 years” (Counterpoint Press, of Berkeley, California).
While understanding the ethical code which protects lawyer-client confidentiality, the bottom line for me was that a just society cannot knowingly imprison an innocent person nor defend the guilty at the expense of the innocent.
In interviews with three of the four — the fourth declined to be interviewed, citing health issues — the lawyers insisted they had no choice. I responded that their position was indefensible, unconscionable, unjust, immoral and amoral.
During the two years I worked on the book, I discovered that most lawyers defended the four while laypeople condemned them. I challenged them with the ultimate argument: Would they have remained silent if a loved one — son, daughter, spouse — was the innocent person wasting away in prison.
One said my question was “abstract.” It wasn’t; it was hypothetical, but hardly abstract. Another went back and forth in his response, while the third maintained she would let a loved one remain in prison under this circumstance. While she gets credit for consistency, her position was very hard to accept.
A major objective of the book, besides chronicling Logan’s painful story, is the hope that the legal system will consider changing the ethics code on this issue. Two states, Massachusetts and Alaska, have already done so. Their code permits, but does not require, a lawyer to speak out when it might exonerate an innocent person.
The legal community certainly has the brain power to develop a process by which innocent people are freed without compromising the interests of guilty clients. For instance, what if lawyers present evidence to a judge in chambers that the person in prison is innocent? After the judge makes a decision, the evidence remains secret, like in grand jury testimony.
Or a lawyer is permitted to speak out when their client is already being tied for similar offenses. In this case, the guilty man was facing the death penalty for two capital offenses (the murder of the two police officers).
Further, lawyers should be able to come forward when their clients die. The U.S. Supreme Court has ruled that lawyer-client confidentiality survives death, and Logan is free today only because one of the four lawyers had the foresight to ask if he could speak out should his client die in prison. The client gave his consent.
Moreover, the circumstance Logan faced is unique. It has probably never happened before. Well, that is not quite accurate. In a very similar case in North Carolina, a lawyer testified that an innocent man was in prison and that his client, who died, had committed the respective crime.
The judge refused to accept the testimony. Then he reported the attorney to the state bar for ethics violations. According to the news reports, the bar dismissed the charges.
The innocent man? He already has served 30 years in prison, his health is in jeopardy, and it appears he had no hope of being released. Thus, Alton Logan was “lucky.” It is time for other states to follow the example of Massachusetts and Alaska. Perhaps the powers-to-be in Michigan’s legal community can lead the way.
Berl Falbaum is former chief of The Detroit News City-County Bureau.