Saturday, November 22, 2008

Alton Logan, Dale Coventry, and Jamie Kunz: Not Surprisingly, I Was Incorrect

Last night at dinner, Sherry, Tony, Janet and others were discussing the terrible story of Alton Logan. Logan is the man who spent 26 years in prison for a crime he did not commit. The lawyers of another man, Andrew Wilson, had learned of his confession to the crime Logan was improperly imprisoned for weeks after it occurred. Before I go on, part of the reason I am writing this is to apologize to Sherry, Tony and Janet.

At dinner I incorrectly insisted that Wilson's lawyers, Dale Coventry and Jamie Kunz, had been officially reprimanded for their concealment of Wilson's admission and the resulting imprisonment of an innocent man for 26 years. They have not. I confused an ethics panel held recently (Nov 3) at Loyola on this matter with an official redress against these lawyers. It was not.

A panel discussion and nothing more, and as I've read about this case, I now understand why. Another man's life, Wilson's, was held in the balance. I'll explain. Over the course of those 26 years Kunz and Coventry, without naming names, consulted with numerous judges, legal scholars, and ethicists about their conundrum. They honestly attempted to do everything in their power or at least counsel, not as lawyers (but that too), but as humans, to free an innocent man without doing so at the expense of one other man's life.

The two lawyers were representing Wilson, the man who confessed to the murder. When he did so, they wrote a sealed affidavit without naming Wilson, so as to protect their client if the document were to be subpoenaed, and simultaneously vindicate Logan. The problem, however, was that Wilson had been convicted of killing two police officers that made him eligible for death row until it was revealed that his conviction for doing so came as a result of torture, beating, and the use of a radiator upon his flesh at the hands of members of the Chicago Police Department. Given this information, he was sentenced to life without parole over death. If, however, he were to be convicted of another murder, he all but certainly would be sentenced to death. Protecting the life of their client, the lawyers pleaded with Wilson to allow them to reveal his secret if he were to die in prison. Then he did. The ethical weight of life on one side of the scale of (in)justice had been removed and the lawyers sprang into action.

One of the more unfortunate aspects of this case was the way it was originally reported by CBS. In that original report, it was made to appear that the 'dirty, rotten, lawyer characters' were holding themselves to a professional code of ethics while an innocent man languished in prison. This is only marginally true. In reality, the lawyers held one man's life on one side of the balance, their client, as another man languished in prison on the other. It is difficult to find silver linings in such a heart wrenching story. Torture, capital punishment, forced confessions, imprisonment while innocent and more, yet, for CBS this story was handled cheaply and incompletely. For CBS this was nothing more than an opportunity to salaciously pit white lawyers, beholden to their professional code of conduct, protecting their client's confidentiality while another man suffered at their expense. Although true, the CBS story intentionally misses the more complicated nature of this terrible intersection of justice and ethics. The lawyers were protecting one man's life at the expense of an innocent man's freedom. That is a very different story than one about client confidentiality.

On that note, and as anything but a legal scholar, I believe there was a way for the lawyers to solve their conundrum. If they were able to secure with prosecutors that the life of their client, Wilson, would not be on the line with the confession to another murder for which a man had already been convicted and sentenced; then, it appears that their ethical challenge would be no longer. Wilson would have been tried for a crime he had confessed to and remained in prison for life without parole on the sentence he had already received for killing two cops and an innocent man would be set free. Why this was not done, or if it is even possible within the law, I am unsure.


  1. The lawyers are not responsible for the state of the justice system, only for their role in administering it. Their choice was between freeing an innocent person and identifying a guilty one. To say that the guilty person should be protected because he had other problems, or because of a principled objection to the death penalty, is to obscure the basic injustice, and to make Alton Logan an unwilling pawn, at his enormous personal expense, in someone else's moral calculus.

    There is no certainty that Wilson would have been executed had he been identified. Since the death penalty, previously outlawed nationally, was reinstated in 1976, 12 persons have been executed in Illinois, none since 1998. Given that thousands were convicted of murder during this period, Wilson's chances of avoiding the needle were probably pretty good, and maybe even improved because of his torture at the hands of the cops.

    To identify an agonizing moral dilemma here is, I believe, a fundamental error. Should you not testify against someone you saw committing murder, because your testimony may contribute to his execution? This would be taking the concept of jury nullification in an entirely new direction, one with which I imagine very few people would be comfortable, regardless of their convictions on the dealth penalty question.

  2. Jumco is right. The state could (and arguably should) have offered Wilson immunity in exchange for the confession. The problem is it appears Wilson did want to testify, and thus did not authorize, or if asked would not have authorized, his lawyers to make such a deal. And so, the question is: How does a lawyer reveal client confidences without the authority of the client. Jumco identifies the risk of a death sentence, and Tony says the risk was low. But that issue is irrelevant. All confidences are treated the same, with two exceptions that appear not to apply. The first is the crime exception: a lawyer may breach his duty of confidentiality to his client to avoid the current or future commission of a crime. The second is the fraud exception: a lawyer may breach his duty of confidentiality to his client to avoid the current or future commission of a fraud. Although terribly sad, there is no duty under the criminal or civil law to reveal facts about someone to whom you owe no independent duty simply to avoid harm to that person. (A doctor can step over a dying stranger on his way to the opera without incurring civil liability.) And so I ask, "What would I have done if I were Wilson's lawyer?" I certainly would have approached the state's attorney's office, but there is not much the office can do without me revealing my client's confidences. I certainly would approach the Illinois ARDC (the disciplinary body for Illinois lawyers) to seek a safe harbor advisory opinion. If they refuse, I'm not sure what I would do. But I just might make the disclosure and suffer the discipline, including potential disbarment. If Wilson is dead, then I can at least feed myself (in a manner to which I have become accustomed, of course!) on the book proceeds without fear of a civil suit (I'm pretty sure the estate has no standing to complain over a breach of confidentiality owed to the deceased). Tough case, but I agree with Jumco's suspicion. A just and decent profession of smart people really ought to have devised a way to correct this injustice without threatening to crash the entire system. A shanda.

  3. I meant that "it appears Wilson did NOT want to testify."

  4. We are not talking about a lawyer's duty under the civil or criminal codes. We are talking about justice. The physician who steps over the dying person is not liable; sure. He's just despicable, and that's the point. And systems do not crash when they are violated in rare cases involving conscience, etc. They crash when they lose their legitimacy because adherence to them produces offensive results.

    But thank you, Pericles, for your (at least partial) ratification of the duty to prevent a grievous wrong. Simply put, professional ethics are provided to guide the professional in the performance of his office. They do not supersede the standards of human behavior. And no artificial code of conduct can possibly anticipate every case (thus, no shanda, at all; we cannot be ashamed when our constructs only work almost all the time); sometimes you just have to do the right thing.

    The point is illustrated by the torture dilemma that has become such an issue, although a false one, in my opinion. One point of view resists prohibiting or criminalizing torture, using the familiar (if tired) "nuclear weapon ticking away in the middle of the city" example.

    In such a case, a responsible human being should do what is necessary, whatever that is, to avoid certain harm to a large number of people. But it should still be illegal: then the would-be torturer, presumably guided by his responsibility as a human being to his fellows, will torture and accept the consequences. But he will think long and hard about what he is doing, and why. He won't torture because it is someone's whim, or a policy handed down by someone at a desk somewhere.

    The partial solution of Pericles, to go before the bureaucratic body and seek permission, is tepid at best. The job of such bureaucrats is to preserve the standard, not to rock the boat. If they say you cannot reveal the truth, etc, they have done nothing to change your ethical dilemma. Thus resort to them is basically asking permission to do what you know to be right.

    Pericles is right to say that, to set an innocent man free, he should be willing to recognize that one duty trumps another, and that, if he suffers professionally as a result of acting correctly, well, he's a resourceful human being, and he can always find work.


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