Attorney/Client Privilege Keeps Innocent Man in Prison

Attorney-Client Privilege :

The attorney-client privilege is the oldest privilege recognized by Anglo American Jurisprudence.

There are very few exceptions to the sacred privilege and in all but one state, a lawyer may not reveal confidential communication even if the information would free an innocent person, wrongfully convicted of a crime.

I viewed an unusual privilege issue on Law and Order last night. Yes, I am a Law and Order junkie! What can a lawyer do, legally, if her client confides that she killed a certain person and the lawyer subsequently learns that an innocent person is is imprisoned as the perpetrator of that crime? Tough one?

I confide in you as my lawyer that I murdered Jane Smith. Six months later, Rick Bond is arrested, tried, convicted and sentenced to life in prison for murdering Jane Smith.  You know that Rick Bond is actually innocent because I am your client and I confessed to you that I did it. The law prohibits you from revealing your clients's confidential communication. What do you do?

Watching this particular episode of Law and Order made me queasy. Law and Order is fictional, but the issue addressed is very real. If a lawyer reveals the privileged communication he or she is throwing away their career, livelihood and everything they have worked so hard to become and could also be charged with a crime.   If the lawyer remains true to his or her oath, does not violate this sacred privilege and follows the law, an innocent man will spend the rest of his life in prison. It get worse. Even if the lawyer follows his or her conscious and reveals the privileged information, if it is revealed without a waiver from the client, the information is useless in a court of law.

In the past several years, the fictional plot explored on Law and Order has haunted real lives. Two wrongful conviction cases have been spotlighted in the media. Both cases involved lawyers who were privy to confidential information conveyed to them by clients that would help free wrongfully convicted men, but both lawyers were barred from coming forward. They were prohibited from coming forward and sharing information that would help free innocent men. These lawyers were bound by the very same judicial system that advocates life, liberty, freedom, justice, truth, and the pursuit of happiness

In one of those cases the offending client allowed his attorney to reveal information that would free the innocent man, upon his death. The lawyer did so, but not until after the wrongfully convicted man spent two decades in prison. The second case has a much more chilling result.

Staple Hughes, a North Carolina attorney, revealed his clients's privileged communication in 2004, after his imprisoned client died. Hughes hoped to free the wrongfully convicted, Lee Wayne Hunt from his life sentence. Hughes, stated that his his now dead client, confessed that he and he alone committed the double homicide for which Hunt was serving a life sentence. Hughes kept his client's confidence for twenty-two years while Hunt was serving a life sentence for a crime he did not commit.

 Hughes felt it was "ethically permissible and morally imperative" that he come forward with the exonerating information, once his own client died.  The law, unfortunately disagrees. An attorney is bound by the attorney- client privilege even after the death of his or her client. Because Hughes did not receive his client's consent to reveal the confidential information upon his death, Judge Jack Thompson of the Cumberland County Superior Court in Fayetteville, North Carolina refused to consider  Hughes' testimony during the 2007, hearing for a new trial. The judge stated, "Mr. Hughes has committed professional misconduct." The judge reported Hughes to the North Carolina Bar for violating attorney-client privilege and Lee Wayne Hunt remains in prison despite the exculpatory evidence showing his innocence. You can read summaries of both cases and find links to the actual court cases here.

The principle of confidentiality is set out in the legal ethics rules in each jurisdiction and in ABA Model Rule 1.6. Model Rule 1.6 Comment [2] states: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. ... This contributes to the trust that is the hallmark of the client-lawyer relationship.” American Bar Association

What is your opinion on the law that prohibits an attorney from revealing confidential information? Should there be an exception if the information will free a wrongfully incarcerated person? Or would an exception to the rule hinder a client's ability to freely and openly discuss facts and circumstances with his or her attorney without fear of disclosure?

This blog is not intended as legal advice.

Teen Party Ideas- Scavenger Hunts, Amazing Race & More: Ages 13-15

Teen Party Ideas:

If you landed here for Teen Party Ideas, my other blog has a much more detailed article on fun party ideas that your teen will love & thank you for.

Party ideas that your teen and friends will not call lame. Scavenger Hunt ideas for teens that will rock the party.

This is my crime fiction writing blog, but I've noticed quite a bit of people landing here, in search of teen party ideas. I have a second blog with a boat-load of cool, unique teen scavenger hunts & other teen party ideas. Check it out. You will also find fun party ideas for tweens.

"Whatever you do mom, my party cannot be lame."

 Said the fourteen year old.

The First Wednesday Of The Month:

Another month has rolled around and it is once again time for Alex Cavanaugh's IWSG. In case you have been living in a cave without Internet access for the last year and don't know what the IWSG is, it stands for Insecure Writers Support Group. Alex is the brainchild of this epic event. It is a "Time for us to release our fears to the world-or offer encouragement to those who feel neurotic."

I feel neurotic, but for once it has nothing to do with my writing.

My daughter is turning 14 and (yes call me certifiably crazy- lady gone ape shit nuts-cuckoo) she is having a sleepover, Friday night. She has invited twenty-seven (27), yup, I said 27, girls to spend the night. She has invited guys to hang out until after the movie .

I've done my best to jam pack the day, evening, night and wee hours of the morning with non stop activities. How else can I hope to contain middle -school- teenage- girl- drama  x27?

The girls & guys will draw a tootsie roll sucker from a paper bag to determine which of the six teams they will be on. I decided against making the groups myself for fear of the, "That's not fair." and "Why is she on her team?" or "Why are all the cool kids in group 3?" I have five other friends/parents helping me with transportation. The party kicks off after school with revised versions of "The Amazing Race", "Fear Factor" and "Survivor".

At 7:00 we are headed to the boardwalk for a teen scavenger- photo hunt.  The kids take photos of their teams doing weird things and finding odd objects. I am sure that one group member will have a camera phone. Oh, who am I kidding? All 40-45 kids have at least one electronic device that takes photos/videos. I bet they have them posted to facebook before I even get to see them and select the winners. 

The last clue will (hopefully) lead the kids to the movie theatre at the Boardwalk where they will see Pitch Perfect and I will have a much needed break. I can just sit alone in a pub (I'm not one of the drivers and by then a little vino might be necessary) or maybe just a coffee shop and do what I love to do, write. I will have two whole uninterrupted hours to write. Assuming nothing goes wrong and really what could possibly go wrong with 40-45 teenagers going to a movie together. I do pity the others attempting to watch the film.

The movie lets out a little after midnight and the adults and 40 or so kids will eat at IHOP, which is also on the boardwalk. The kids love watching the drunks stumble in to one of the few all night places to eat. They love to people watch drunkards. I suppose it's a hell of a lot better than the teens thinking they should get drunk so I'm not complaining. I so dread that day. The day one of my kids comes home and I smell booze on them. 

And...after that we are going rolling. For those of you unfamiliar with that term it is when kids throw massive amounts of toilet paper in the trees of a friend or crushes home. In the North and Midwest I think it is called T.P.'ing. 

Don't worry, it is not illegal or anything like that. It is a time honored southern tradition and we always help clean up the next day (if we get caught). What do you think the chances are that word will leak out that it was Blake's party who rolled the poor victim's home? You think 40-45 kids can keep a secret? Nope. I'll be up at 7 AM cleaning toilet paper out of trees.

So, I am a feeling a little neurotic , anxious, edgy, overwhelmed and on the verge of a major panic attack. I'm actually starting to hyperventilate. I want to sneak away with a notebook and pen and just write, but I know it will be fun. At a minimum I will get in a lot of people watching and eavesdropping. I am certain to pick up tidbits for my next WIP.

I hope none of you are feeling the writing blues. Have a great week and weekend.

What Would You Do If Your Child Was A Killer? Defending Jacob by William Landay

Melissa's Murder Mystery Monday

Would you know if your child was a murderer? 

This savvy prosecutor likes to believe she would recognize the truth:

But, when the truth involves your own child, how clouded does your judgment become?

William Landay's Defending Jacob has been compared to Scott Turow's Presumed Innocent.

I found Landay's writing just as good as Turow's and Defending Jacob every bit as suspenseful as Presumed Innocent, right down to the mind blowing twist at the end.

************Warning: Plot Spoilers*********

Defending Jacob is a courtroom drama that is structured on two paralleling plot lines. The first is told from, Andy Barber's point of view, one year after the murder. The second is testimony from a grand jury hearing and from Jacob's trial. Readers do not discover the target of the grand jury hearing until the last few pages of the book.  Landay does an excellent job hiding, in plain sight, the true purpose and target of the grand jury hearing. I certainly believed, Andy was the target of this grand jury investigation. I believed he was being investigated for obstruction of justice or some other crime that involved him hiding and destroying evidence that would have implicated his son in the murder. I was in for quite a surprise.

There are two suspenseful plot lines running through this mystery/suspense//legal thriller. The first is a common did he do it question. Did the district attorney's son, Jacob kill his high school classmate? The second is more emotional. Does the father truly believe his son is innocent or deep down does he know he is guilty of murder, hence the reason dad destroys evidence implicating his only child? Can his mother believe he is truly innocent- even if the jury finds him not guilty?

We all know that there is a difference between not guilty and innocent. Just because an accused is found not guilty by a jury, because the state failed to prove the case of guilt beyond a reasonable doubt, does not mean the accused is truly innocent of the crime.  Defendant's are freed on technicalities all the time. Is that what happens in Defending Jacob? 

Defending Jacob, by William Landay, opens amid Andy Barber's testimony at a grand jury hearing. The author does not reveal the target of the grand jury hearing until the end of the book. We soon figure out that Andy has done something wrong, or at least he is suspected of doing something wrong. From the questions lobbed at him by Neal Logiudice, the man Barber once mentored, we sense that Andy Barber is being accused of some sort of prosecutorial misconduct. Logiudice, claims Andy should have removed himself from the investigation as soon as he learned the identity of the victim, Ben Rifkin. Rifkin, was a classmate of Jacob Barber, Andy's 14 year old son.  I can see how many would view this as a conflict of interest. I have worked as a prosecutor in both a large District Attorney's office and in a small rural parish and I have to disagree with the emphasis placed on this detail.

In a perfect world we would never allow police or prosecutors to investigate cases that involved people they know professionally or personally, but in small town, where everyone pretty much knows everyone, it is virtually impossible for an investigative officer of the prosecutor to recuse himself from every case. The setting of this book is a small, quaint village in Newton Mass., a place where everybody knows everyone.  If the victim turned out to be the girlfriend or best friend of Andy's son, then he would have a conflict of interest. 

Summary:

Andy Barber is a prosecutor in the upscale, wealthy, Newton, Mass. His world falls apart when his 14-year-old son is accused of murdering his classmate, Ben Rifkin. It doesn't help when the investigation reveals that Rifkin was a bully and Andy's son, Jacob, was his primary target. Andy is called to the scene and initially suspects a pedophile, who lives nearby. Evidence leads to Jacob, who admits finding the body and offers fear, as his excuse for failing to tell anyone and reporting to school that same day as if nothing out of the ordinary occurred. Andy is removed from the case and one of the issues of the book becomes whether or not Andy committed prosecutorial misconduct by remaining on the case after learning the identity of the victim.  Students inform the police that Jacob has a knife (the victim was killed with a knife). The evidence against Jacob is not compelling, but could be enough for the overly zealous prosecutor, Neal Logiudice, who worked under Andy, to sustain a conviction.

As the damaging evidence grows- pointing to Jacob's guilt, Andy's parental instincts rally to protect his son. The story is as much about defending Jacob in the courtroom as it is about defending his son's innocence and youth. Andy has to believe in Jacob's innocence. He cannot fathom a life that includes Jacob's guilt. Andy must also struggle with his own demons. He's concealed the truth about his own father and paternal lineage of violence from his wife. It is gut wrenching for the reader to watch Jacob's parents try to maintain some sense of normalcy. Andy refuses to acknowledge that the damaging evidence against his son points to his guilt. Andy's biggest fear is the jury returning a verdict of guilty. His wife, on the other hand, struggles more with her fear of what a not guilty verdict will mean. How can they allow their son to roam free- free to kill again?

Defending Jacob offers readers a plethora of social issues and themes:

1. Classic guilt vs. innocence
2. How far will a parent go to protect their child?
3. Just how well do parents know their children?
4. Nature vs. Nurture
5. The Killing Gene: Can a person inherit a propensity toward violence?
6. Social Media and how involved it has become in our lives and in the judicial system
7. Bullying in the school system
8. Prosecuting children as adults for violent criminal acts
9. The isolation a family faces when they are no longer considered normal
10. What happens to the family dynamic when the basic belief that our children are good is destroyed?
11. Could you destroy your child if you were certain he was a sociopath and would continue to destroy innocent victims?

Defending Jacob is not your ordinary courtroom drama or mystery/suspense. It is the emotional story of family dynamics and how the murder trial of their son affects the family.

I read this book in early January, 2012. My goal is to read 50 books before the end of the year. While I am very close to obtaining my goal, I realized that I haven't reviewed many of the books I have read. Since this was the first book I read in 2012, it seemed fitting that it be the first I review. I have reviewed a few others, but I am working toward reviewing each book I read this year. I read this book over one weekend. I could not put it down. I have learned that people either really loved Defending Jacob, or they were not impressed at all.

This is my favorite genre and I read a lot of mystery/suspense, legal thrillers and courtroom dramas and Defending Jacob was one of the best books I have read in years. I could not wait for my husband to finish the book (and others I knew were reading it or planned to read it) because I was itching to discuss the issue that was eating away at me.

I am a parent so naturally this book left me questioning what I would do if this tragedy fell upon my own family. I suppose that my career as a prosecutor and then a defense attorney made the possibility much more realistic. I do not see how any parent can read this book and not walk away feeling sick and needing to ask the question and letting it sit in their soul as they ponder.

What would you do if your child killed someone?

Read more about Defending Jacob and author, William Landay at his website.