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Monday, January 21, 2008

He Deserves A Break Today: Alton Logan's Conviction Called Into Question After Secret Affidavit Is Revealed

In 1982, now 54 year-old Alton Logan was arrested for the murder of a security guard at a McDonald's in a robbery gone wrong.  Witnesses identified Logan along with Edgar Hope as the two perpetrators of the crime.  A few days later, however, while police were hunting down brothers Andrew and Jackie Wilson for an unrelated murder of two officers, a raid on Andrew's suspected hiding place unearthed a shotgun that tested positive as the gun used in the McDonald's shooting.  However, because there were allegedly only two perpetrators in the McDonald's robbery/shooting, and because the police already had two suspects in custody, charges were never filed against Andrew Wilson in that case.

When Andrew Wilson died last November, public defenders Dale Coventry and Jamie Kunz, who represented Wilson, came forward with a shocking revelation.  They claimed that back in the early '80s, Hope told them that Logan had nothing to do with the McDonald's shooting and that Wilson was the shooter, which led them to confront Wilson, who admitted that he, not Logan, was the trigger man in that shooting.  Wilson agreed to allow Coventry and Kunz to prepare a notarized affidavit of his confession, which he signed and indicated could only be revealed after his death.  The public defenders abided by Wilson's words pursuant to the attorney-client privilege, with the affidavit sitting in a metal box in Coventry's office ever since.  That box was finally opened after Wilson's death, and Assistant Cook County Public Defender Harold Winston, who is currently representing Logan, has moved for a new trial based upon the affidavit.

This new evidence sets the stage for what could be a legal battle over the admission of the secret in court.  The admissibility of Wilson's affidavit will be governed by Federal Rule of Evidence 804(b)(3), which Illinois courts have found is applicable in Illinois cases. See, e.g., People v. Tenney, 793 N.E.2d 571, 587 (Ill. 2002).  Rule 804(b)(3), indicates that when a declarant is unavailable, his prior statements can still be admissible as "statements against interest," an exception to the rule against hearsay.  Under Rule 804(b)(3), a statement against interest is "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." 

At the same time, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."  Obviously, Wilson's affidavit was a statement which tended to expose him to criminal liability for the McDonald's robbery/murder, so its admissibility will depend on whether the "corroborating circumstances clearly indicate the trustworthiness of the statement."  As the Supreme Court of Illinois has noted, "'[i]n determining whether the declarant's statement has been sufficiently corroborated to merit admission in evidence, the judge should not be stringent. * * * If the issue of sufficiency of * * * corroboration is close, the judge should favor admitting the statement.'" Tenney, 793 N.E.2d at 587 (quoting Commonwealth v. Drew, 489 N.E.2d 1233, 1241 n.10 (Mass. 1986)).

Thus, it seems to me that the evidence linking the shotgun found at Wilson's alleged hiding place to the McDonald's robbery/shooting and Hope's statement that Wilson and not Logan was the shooter would constitute sufficient corroborating circumstances to allow for the admission of the affidavit into evidence.

In many ways, then, this case is similar to the case of Lee Wayne Hunt, about whom I have previously blogged.  Furthermore, as I noted in that case, even if Wilson's confession is deemed not technically admissible under the rules of evidence, Wilson would have a great argument under the authority of Chambers v. Mississippi, 410 U.S. 284 (1973). 

(My essay, Ordeal by Innocence, which addresses the Alton Logan case and why there should be a wrongful incarceration/execution exception to attorney client confidentiality can be downloaded witha free SSRN subscription [SSRN link].  My other posts on the Alton Logan case can be found here, here, here, and here). 

-CM

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How is a court likely to deal with the following argument? ...

When Wilson gave the statement, he knew it was privileged and couldn't be used against him; in fact, he expressly limited disclosure until after his death. He well knew, in other words that his statement created no risk of prosecution. Therefore, the statement did not actually tend to subject him to criminal liability and is not admissible as a statement against his penal interest.

Posted by: wm. tyroler | Jan 21, 2008 10:44:08 AM

That's a good point. In fact, it's the exact point that the court made in Morales v. Portuondo, 154 F.Supp.2d 706 (S.D.N.Y. 2001) -- that a person's statement to his lawyer and a member of the clergy were not against his penal interest because he knew they could not report his admission. I'm not sure that I agree with that logic, but assuming that the court follows it, they should grant Logan relief under Chambers v. Mississippi, which is what the court did in the Portoundo case.

Posted by: Colin Miller | Jan 21, 2008 2:24:54 PM

All I know is those two lawyers are real
s.o.b's!! How they could let a man they
knew to be innocent spend all these years in
prison is beyond me. Lawyers sure are a
special bread.... there's a special place in
hell for these two....

Posted by: jay kimbel | Mar 9, 2008 4:42:26 PM

How could these lawyers consider their careers more important than 26 years of an innocent mans' life? No wonder people think lawyers are scum. Every cent they have made off of their careers since they knew Mr. Logan did not commit this crime (at least since his conviction) is blood money. No wonder people HATE LAWYERS. Morality aside, you knew. And you alowwed the courts to waste this mans life. SHAME ON YOU!

Posted by: debora basham | Mar 9, 2008 4:43:56 PM

I just looked at this on 60 minutes. How could those lawyers let an innocent man stay in jail for all those years knowing he is not guilty. They should let Logan go free and put the lawyers in the same cell he stayed in. I wonder if the color were the other way around would it have been different. I hate what was done and think he need to be free like right now.

Posted by: Debbi | Mar 9, 2008 4:46:10 PM

ONLY IN AMERICA!

WHAT CAN WE DO TO GET THS MAN FREE ASAP!!!!

LETTER WRITING OR WHAT..

LETS START A CAMPAIGN TO GET IT EXPEDITED!!!

Posted by: ray spencer | Mar 9, 2008 5:00:25 PM

I also watched this last night on 60 minutes.I currently am taking a college ethics class and will use this case as my finals essay.I don't care what color Mr Logan was,a redress of wrongs needs to be adressed.I don't just mean monetary either,there should be some committee or national commission that lawyers or anyone in a duty of public trust could go to in asituation such as this.My final question is this,if these same two lawyers were on the putting green and another golfer gave them insider trading tips,what canon of ethics would they follow as they cashed in on that tip?

Posted by: Kevin Jordan | Mar 10, 2008 9:47:31 AM

I understand the vitriol against these lawyers, but, really, it must be noted that attorney/client confidentiality is the cornerstone of criminal law. Mr. Logan should and most likely will be compensated for the tragedy that unfolded, though I'm sure that no amount of money would adequately make up for the years that were taken away from him.

It's certainly difficult for non-lawyers to understand the unenviable position that those lawyers were placed in. That being said, they did all that they could. Justice may be coming late, but a late arrival is better than no arrival at all.

Posted by: Justin Cook | Mar 10, 2008 10:19:40 AM

I must say I'm shock, and I can't find any words to qualify these two lawyers and how bad I fell for Alton Logan. This is just so sad. And the two lawyers have the guts to say they thought of it 250 times a day. He stayed in jail for 26 years, that's 9480 days, that's 227520 hrs. He went to jail after a year when Reagan stepped in office, and you're telling me, you couldn't do anything. I feel disgusted and I hope he will go free soon and he will sue the State of Illinois before leaving for Oregon.
I want to believe that color is not the matter here, but a part of me is saying if he was white, things would have been different.
I wished I could more but I'll start a facebook group right away.


God bless Alton, and we're all with you.

Posted by: Ajay Mcpherson | Mar 10, 2008 10:26:47 AM

To clarify, the lawyers stated they thought of it 250 times a year, not 250 times a day.
Without wanting to undermine the gravity of the situation, it is an absolutely true statement that confidentiality is the cornerstone of criminal law, as Mr. Jordan stated above. Were you in the same situation as the late perpetrator, I think you would ask for the same respect of confidentiality.
I think it is also notable that these two attorneys were not in private practice, but rather were public defenders. Being a public defender is a difficult job, where the principal of confidentiality is even more essential.
I agree wholeheartedly with Mr. Jordan - justice arriving late is better than no justice at all.

Posted by: Katie Barr | Mar 10, 2008 10:52:19 AM

Anyone who is willing to side with these two scum bag lawyers is an IDIOT... Yes its a fact that confidentiality is an important factor in the relationship between the client and an attorney, but at what point is a career worth more than a person's life! Not to mention the fact that Alton Logan was not only innocent but nearly sentenced to the death penalty, Please some one tell me where are the ethics in letting an innocent man die? Oh and Ajay Mcpherson I would appreciate more information on that FaceBook group

Posted by: Mike | Mar 10, 2008 4:18:16 PM

confidentiality, yeah, but anyway they should have let an innocent man go free even if they couldn't prosecute the quilty one. law is to serve people, not otherway around. now it is finally time to set that man free with the biggest check ever in his pocket. mr. Alton was right when he said that justice is quick to put somebody in jail, but slow to set an innocent man free. there is no excuse to prolong his time in jail anymore. He should get extra compensation for every day he have to stay in jail now, that it's clear that he is innocent, there should be that kind of law.

Posted by: linzki | Mar 10, 2008 4:59:52 PM

Does anyone know what Edgar Hope's relationship was to Kunz & Coventry?

Posted by: Randall Hawkins | Mar 10, 2008 5:30:08 PM

Hey Professor-

Check your facts. The affidavit was not executed by Wilson, it was executed by the lawyers. The affidavit only memorializes the hearsay statement of a cop-killer.

Posted by: The Family | Mar 10, 2008 8:58:52 PM

I think these two bozo's were Public Defenders back in 82. How they had Andrew (cop killer) Wilson, I don't know. Does anyone know where the original trial of Mr. Logan was held? I would have hated to be the one who wrote the mittimus papers.

Posted by: Jack | Mar 11, 2008 6:05:16 AM

After studying this case further I have a few thoughts for the two lawyers.In 30 other states they have amended their code of ethics for this very reason.And as for the I am going to assume lawyer in the above post who states "I don't expect non-lawyers to understand"Well sir I am a not a lawyer I am studying to be Drug counselor,and if my ethics code allowed me to do what those lawyers did then I would fight like the other 30 states did and amend it.Yeah,I forget that would probably take money out of your pocket.

Posted by: Kevin Jordan | Mar 11, 2008 9:13:19 AM

It is a deeply serious issue for an attorney to keep his word to his clients under the privilege. It is no less serious than a physician keeping the doctor-patient privilege intact. It is an issue of respect for a client (or patient) and it must not be breached.
I reiterate that if you were in the same situation, you would ask for the same due respect under the privilege that these two attorneys gave their client.

Posted by: Katie Barr | Mar 11, 2008 9:50:54 AM

To Mr. Jordan and Mcpherson that's mighty WHITE of you.He should be happy he is getting out soon,oh really.That is why black and minorites have a deep mistrust of you and for the system your White ancestor and slave owners created.Although I am intelligent enough to see the attorneys argument.These code of ethic or just a way of covering the asses of attorney's, who really don't give a crap.We all know prison were intended to lockup the blacks,latino and whites stupid enough not to get ahead legally in a system that is geared for them to make it.

Posted by: Al Pal | Mar 11, 2008 7:12:20 PM

This could have been an interesting discussion, but instead it turned to racist remarks. That is sad. I think it is highly unfair of you to judge me (you thought I was McPherson, Al Pal) when you don't even know me but at all. The fact that you called me racist is extremely offensive to me and if you have any further slander to spread about a person you do not even have any acquaintance with, you can keep it to yourself.

Posted by: Katie Barr | Mar 12, 2008 7:36:33 AM

From Katie: "I reiterate that if you were in the same situation, you would ask for the same due respect under the privilege that these two attorneys gave their client."

Sure, sure... especially if you were a cold-blooded killer!" I understand that, from the killer's point of view. But, I can categorically state that if if was ME as the attorney (which I am not), I would NEVER violate my own morals and the LAWS OF HUMANITY! Those two sorry excuses for an attorney could EASILY have let it slip somehow that Wilson had confessed to the murder. I am also certain that after a short punitive period for violating the client-attorney privilege, the good ol boys would have let them back into the Bar Association!

Posted by: Ed Newbold | Mar 12, 2008 10:07:39 AM

My God! Can't the governor of Illinois grant an immediate pardon of this man? What in the world is WRONG with these people???

Posted by: Ed Newbold | Mar 12, 2008 10:16:36 AM

Mr Al Pal,I am a black man and if you would of read all my comments before spouting your diatribe you would have read that I am in defense of Mr Logan.Also I agree with the other lady,race should not be a part of this discussion.I would have stated my defense of Mr Alton no matter what race he was.Injustice knows no color sir!!!!

Posted by: Kevin Jordan | Mar 12, 2008 12:26:15 PM

Do either Kunz or Coventry still practice law? Any idea what the name of their firm is?

Who is the bloated attorney who had to wear a sweat shirt because he can't find a shirt to fit around his fat neck?

Here is what that fat slob should have done ... instead of dedicating his life to shoveling cheeseburgers down his throat, he should have dedicated his life to resolving the issue, changing the system, and making sure that innocent people would not go to jail. Do not say he could not have done it by himself. That attitude is a losing attitude. He should have used his energy and resources to do the best he could at making sure that innocent people don't go to jail. Then he would have had a purposeful life. Instead, he was concerned about making money and blowing up like a balloon. He will die knowing that he could have had a purposeful life but instead wasted it selfishly. True, he may not have made as much money, but he would have made a difference. Even by trying, he would have made a difference. Instead, he ate himself to oblivion, hid behind "but I couldn't do anything,' and sucked up oxygen needlessly. What a frivolous coward and a classic example of a waste of life.

Posted by: JA | Mar 12, 2008 4:38:37 PM

I didn't want to come back to this discussion, but I would like to point out that you do not know if these attorneys are wealthy or not. Public defenders do not make very much money and it should be reiterated that they were indeed public defenders. They were the ones that helped the public who could not afford representation. I think it is presumptive of you to say that they are wealthy slobs who didn't do the right thing.
Also, any attorney will tell you that the code of ethics TECHNICALLY does not end with the death of a client. They came forward upon his death because they could no longer live with the knowledge they had of an innocent man behind bars. They really were still bound by their privilege and chose to go against it. These men deserve more credit.

Posted by: Katie Barr | Mar 13, 2008 5:23:34 AM

My heart hurts for Mr. Logan and his family. I hope he is released soon. Why should there be another trial? Where is the compassion in the world? When I think of people in government abusing power and living as if they are above the law I cannot understand how this horrible injustice can continue even one more day. The attorneys in this case will have to live with this for the rest of their lives. I think they have taken the letter of the law to an extreme. Where or where is the spirit of the law.

Posted by: K. Evans | Mar 13, 2008 10:27:48 PM

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