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Univ. of San Diego School of Law

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Monday, November 7, 2005

Murder Proved Thanks to Testimony of the Co-Conspirator's Lawyer

Ann Miller Klontz, a chemist, pleaded guilty to conspiring to kill her husband with arsenic, an old, old story.  However, Klontz was caught thanks to the testimony of her boyfriend/co-conspirator Derril Willard's attorney.  Willard committed suicide after consulting a lawyer.  The lawyer was then targeted by the authorities, who got an order, affirmed by the North Carolina Supreme Court, holding that the lawyer had to give information about what Willard had said.  The court concluded that the statement could not give rise to civil or criminal liability even had Willard been alive, because the statement was that "Klontz did it," so the statement was unprivileged. 

But this is clearly wrong: Other evidence showed that Willard had been involved at other stages of the plot, and therefore his statement that his co-conspirator actually did the physical killing was  inculpatory, and hence privileged, even on the North Carolina Supreme Court's bizarre theory of the privilege (If Jane Jones finds out from her attorney that in her state, adultery or homosexual conduct gives rise to neither criminal nor civil liability, that should not mean the lawyer is free to blab that information all over town). The North Carolina Supreme Court said in 2003: "we believe that communications between attorney and client regarding any criminal activity of a third party, which do not tend to harm the interests of the client" are unprivileged, but now, thanks to Willard's lawyer's disclosure of Willard's own words, everyone in North Carolina knows Willard is a killer, so the premise of the court's decisions was false. Story here; 2004 opinion upholding disclosure here. 2003 opinion setting forth general principle here.  [Jack Chin]

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