Dear Readers, Nationwide, there has been something close to an epidemic of the wrongfully convicted being released from death row. There is no specific pattern to why such a preventable tragedy almost occurred. In some cases, overly eager police officers coerced false confessions; in some, exculpatory evidence was withheld from defense counsel; in others, eyewitness identification testimony was punctured by the miracle of DNA testing.
One overlooked undercurrent to this delayed justice is the role played by lawyers who have been saddled with the silent, confidential, and uncomfortable knowledge that someone they represented was the “true” killer. Across the nation, we periodically hear of an attorney who courageously steps forward, after the death of their client, to tell of a long-hidden confession implicating a false conviction of a prisoner on death row. The attorney-client privileged is treated as sacrosanct. Every young lawyer learns that, if we do nothing else, we are bound to keep secret anything divulged to us by our clients in legal confidence.
Interestingly, this concept has its genesis in Elizabethan England, where lawyers could lean on this privilege as a bar to the lawyer being called as a witness against the client. Consequently, the lawyer first held this privilege.
Over the years, this ancient concept has evolved. Today, it belongs to the client and only the client can waive the privilege. Additionally, some exceptions have arisen, which may vary from state-to-state.
For instance, generally, this privilege yields to the greater good of preventing the commission of “substantial physical harm” against another. Thus, if a client confesses to the attorney that he or she plans to kill someone, the attorney may actually be obligated to inform law enforcement or risk being charged as an accessory to the crime, if it is carried out.
In some states (Georgia for one), the exception to the privilege could, in theory, be extended to the prevention of a client’s suicide. And in other states (Georgia again), the privilege will also yield to preventing substantial financial harm against another.
But what happens if a lawyer knows that someone is wrongfully sitting in prison? Isn’t this injustice “substantial physical harm to another?” Unfortunately, no attorney has been brave enough to risk their license and (if there is a law against breaching the privilege) prison.
Inadvertently, that might be about to change, at least in the State of North Carolina. Attorney Staples Hughes recently testified in a North Carolina courtroom that his deceased client had confessed to him, 22 years earlier, that he had committed a double-murder for which another had been convicted. Before he testified, the Judge warned him “If you testify I will be compelled to report you to the state bar. Do you understand that?”
In response, Mr. Hughes went on to tell his story. Incredibly, not only did the trial judge ignore this testimony that the wrong man was in prison, he wrote in his opinion, “Mr. Hughes has committed professional misconduct.” Fortunately, the disciplinary action pushed by this judge was dismissed; unfortunately, Lee Wayne Hunt’s request for a new trial was denied by North Carolina’s highest court and he reminds incarcerated for life; only North Carolina’s “Innocence Inquiry Commission” may offer him some hope of ultimate justice.
I hope I never have to face the “Hobson’s Choice,” with which Mr. Hughes must have struggled. Think about the enormous guilt he must have faced every day of the past 22 years that he was the custodian of a secret that probably should have freed Mr. Hunt. God bless him.
Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Florida Assistant State Attorney. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.
