EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, May 22, 2008

My New Essay -- Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality

I have written four previous posts (here, here, here, here) about Alton Logan, the man imprisoned for 26 years for a crime committed by another man.  I finally decided that, rather than continuing to write posts lamenting the failures of the legal system in his case, I would write an essay arguing for a change in the rules of professional responsibility, which would allow attorneys to prevent similar injustices from occurring.  The result of this decision is my new essay, Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality, which will be published in the Northwestern University Law Review Colloquy this summer (my initial draft is now available on SSRN and can be read if you complete a free registration [SSRN link]).  Here is the abstract for the essay:

"In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession. Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

How does such an injustice occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted. And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent reasonably certain death or substantial bodily harm, the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example. Conversely, Massachusetts Rule of Professional Responsibility 1.6(b)(1) permits attorneys to disclose client information to, inter alia, prevent the wrongful execution or incarceration of another. This article argues that the 25 states which have adopted some form of amended Model Rule 1.6(b)(1) can and should read a similar wrongful incarceration/execution exception into their existing Rules while the remaining 24 states (and the District of Columbia) which have not adopted some form of amended Model Rule 1.6(b)(1) should create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions."

So, what do readers think?  Does such an exception make sense?  Or would such an exception restrict the free flow of information between client and attorney and/or undermine other societal goals?  As I post into the conclusion to the essay, my firm hope is that while men such as Alton Logan and Lee Wayne Hunt have endured inordinate suffering, perhaps we can derive a quantum of solace from their plights if their cases lead to the recognition of the necessity of a wrongful incarceration/execution exception to attorney-client confidentiality.



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Tracked on May 22, 2008 4:58:54 PM


I fully agree that the underlying issues concerning an attorney's ethical obligations in the face of possession potentially exculpatory information deserves exploration.
I am concerned about the context. You seem to have adopted the media view of this story and kneejerk-labled it an injustice. I wish you would step back and look at both stores more objectively. (Although certainly from curbside both may feel compelling).
The state of Illinois fought the Logan new trial motion in a multi-day hearing. We should presume that they did not do this to waste everyone's time. Wilson's two defense attorney's statements were double hearsay. Their statements relating someone else's statements. Reliable? That's quite questionable given that the ultimate source is described as a "giggling" convicted murder, Wilson. Wilson says essentially -- don't tell anyone until I'm dead -- so he's not accountable.
The same adheres to the other case you cite. I have not read up much on that case, but the criticism seems limited to the reported "fact" that the bullet lead match was the only forensic evidence. In the real world, defendants are convicted everyday with no forensic evidence whatsoever. This is absolutely not unusual. (Take note CSI fans). The question is the weight of this evidence in the context of all the other evidence.
I think its ironic that the very same highly intelligent people who are readily, highly skeptical of anything they read in the paper are more than willing to accept anything they read about supposed wrongful convictions. I think being a teacher requires you to be more objective and act more as devil's advocate. Certainly explore the underlying policy issues, but unless you are going to review all the primary documents such as trial transcripts, motion transcripts, and speak to someone other than a member of the defense bar or of the media (i.e the prosecution) you should be more reserved in your judgment.
All that said, please know that I really enjoy your blog. Thanks,

Posted by: A few comments | May 22, 2008 9:14:56 PM

When I read about Alton Logan, I thought to myself, "How would I have handled that situation?" Thank God I have never had to face it.

Posted by: Greg May | May 22, 2008 11:22:48 PM

A few comments, you raise some good points, but I think that there are two separate questions at work. The first question is whether men such as Alton Logan and Lee Wayne Hunt are innocent. I have read through everything that I could find on their cases and am satisfied that both men are innocent. But you are certainly correct that there is some evidence against them and that there are reasons to question the reliability of the confessions made by other men. This, however, is not the "injustice" I am addressing.

The second question is whether an attorney who thinks that his client is guilty should be permitted or required to come forward when his client confesses to a crime for which another man has been charged or convicted. In my mind, the answer to that question is much clearer, and the inability of attorneys to come forward under the current rules of professional responsibility is what I would call the injustice.

Let's compare it to the current, "future criminal act" exception. Let's say such an exception did not exist. And let's say that Attorney's client, Defendant, informs Attorney that he plans to assault Victim. Attorney would not be able to disclose this intention. And I would call this an injustice not necessarily because Victim will now be attacked (we don't know whether Defendant will be unsuccessful or have a change of mind), but because Attorney, thinking that there is a peril to prevent, is paralyzed by the lack of such an exception.

Posted by: Colin Miller | May 23, 2008 4:17:19 AM

I appreciate your clarification (paragraph 2). Focusing only there for now, in my mind the answer is clear as well -- just as it would be in the paradigm law school example of the person left, say for example, buried alive by a defendant with only the defendant and defense lawyer aware of the location. The problem, of course is finding a solution that adequately protects all of the varied interests at stake. The Mass Rule provides one potential, satisfactory solution, except that it only assists the imprisoned, not those as you mention above who are charged or convicted.

Another solution is, perhaps, creation of an extraordinary procedure -- something in the nature of a civil, ex parte, declaratory judgment action (deciding the rights of the parties) that could be filed under seal at the state's highest court seeking guidance. The underlying problem here is too weighty and complex to be left to a body of one-size-fits-all rules. (Frankly, this is what I might have done in this situation. I would have come up with something. As an attorney, you need to stay within the rules but think outside the box -- you are never paralyzed). I would not simply wander about at bar functions shrugging by shoulders, and sobbing, alas, alas.

There is certainly a due process issue here, i.e. something constitutional to hang my hat on. Attorneys need to be reminded that court rules (ethical rules among them) are last in line after our federal and state constitutions and then after statutes (unless the rules are given the status of statutes under state law).

Tying in now to the first issue, I think a solution such as the one outlined above would also allow an attorney who is not certain about his client's truthfulness to come forward as well. Credibility determinations are very difficult to make.

I continue to be concerned about your conclusion about the innocence of the two individuals in the underlying cases. I have only read newspaper articles. If primary source materials are available on the web, I would gladly review them. (Please post the sources if you know of any). I have reserved judgment until I have the opportunity to read something from a reliable source. Under the ethical rules, the prosecutor's office cannot respond in the media so we've only heard a limited amount of material. These are not DNA cases so the underlying dispute is not a matter of science. It is neither scholarly nor lawyerly to rely on newspaper accounts for substance. Certainly, we would not go to court citing newspaper articles as the basis of such an important proposition and expect a warm response.

Thank you for your response. I genuinely look forward to reading your article.

Posted by: A few more comments | May 23, 2008 3:05:41 PM

Thanks for the thoughts, "a few more comments." I think that the idea of having "something in the nature of a civil, ex parte, declaratory judgment action" is especially interesting. There aren't many publicly available documents about the cases, but if you have access to Westlaw, some of the opinions in the cases can be found here:

People v. Logan, 586 N.E.2d 679 (Ill.App. 1 Dist. 1991)

People v. Logan, 491 N.E.2d 753 (Ill. 1986)

State v. Hunt, 381 S.E.2d 453 (N.C. 1989)

Posted by: Colin Miller | May 23, 2008 3:51:14 PM

Thanks so much for the citations. I read the cases, very informative. Hopefully after July when the state makes its final decision on retrial something substantive on the recent litigation will be published (memoranda or whatnot). I got a terrific laugh from the quote-back of my statement in your comment. I used an awful lot of adjectives there. . .

Posted by: Final Comment | May 23, 2008 5:55:00 PM

Isn't the real problem here the lamentably low standard of proof needed in the US courts for a criminal conviction? A standard ruthlessly exposed by DNA testing but still ignored by all involved, including politicians and too many superior courts? Look at the extraordinary cases of false conviction, cases like Jeffrey Hornoff, Clarence Brandley, the Central Park jogger 'attackers' and the like. Even with overwhelming evidence of innocence people are still convicted by jurors who seem bent on exacting revenge instead of dispensing justice. Isn't this the correct point of attack in such cases? How could any prosecution be blocked without making the client attorney privilege unworkable?

Posted by: A Voice of Sanity | May 26, 2008 8:15:11 PM

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