Telling the Truth and Saving a Life
A Virginia lawyer publicly revealed prosecutorial misconduct in a 10-year-old death penalty case -- and thereby saved a man's life:
For 10 years, Leslie P. Smith, a Virginia lawyer, reluctantly kept a secret because the authorities on legal ethics told him he had no choice, even though his information could save the life of a man on death row, one whose case had led to a landmark Supreme Court decision.
Mr. Smith believed that prosecutors had committed brazen misconduct by coaching a witness and hiding it from the defense, but the Virginia State Bar said he was bound by legal ethics rules not to bring up the matter. He shared his qualms and pangs of conscience with only one man, Timothy G. Clancy, who had worked on the case with him.
“Clancy and I, when we were alone together, would reminisce about this and more or less renew our vows of silence,” Mr. Smith told a judge last month. “We felt that there was nothing that could be done.”
But the situation changed last year, when Mr. Smith took one more run at the state bar’s ethics counsel. “I was upset by the conduct of the prosecutor,” Mr. Smith wrote in an anguished letter, “and the situation has bothered me ever since.”
Reversing course, the bar told Mr. Smith he could now talk, and he did. His testimony caused a state court judge in Yorktown, Va., to commute the death sentence of Daryl R. Atkins to life on Thursday, citing prosecutorial misconduct.
Another nail in the death penalty's coffin.
5 comments:
I am also against the death peanlty, and one of the reasons I am against the death penalty is that the legal system makes many mistakes.
That being said, this story makes no sense, and I doubt very strongly Smith could not have reproted prosecutorial mis-conduct. First of all there is no lawyer/client confidentiality between the prosecutor and a laywer working in his/her office. Even the law professor quoted in the article said the ethical rules were "murky". That clearly means this was not a open and shut case and at worse it means that Bar mis-informed Smith.
The strongest case of lawyer/client privledge exists in the private sector. Suppose X represents Y who is accused of murder. There are very strong rules protecting the confidentiality of the client. However, even in these circumstances the lawyer cannot allow the client to commit perjury. If Y admits to X that she killed the victim, X cannot allow Y to get on the stand and say she did not kill the victim. The best X can do is attack the evidence presented by the prosecution and show how this evidence is not sufficient to convict Y. If Y INSISTS on taking the stand, X will then have to get herself taken off the case.
In light of the rules protecting the actual accused I really do not think the NY Times got this story right, when it comes to protecting prosecutorial misconduct. Even if the Bar Association said he had to keep quiet, Smith still could have come forward. The word of the Bar association is NOT binding, a court would then have to decide the matter, and it is very unlikely a lawyer would lose his license in these cirmcumstances.
I think we have to be very careful about taking stories at face value as they appear in the newspaper or other media.
Take Care
Joan
Joan,
While I certainly agree that the legal system makes too many mistakes, I am against the death penalty simply b/c I do not feel the government should be in the business of taking lives.
First of all there is no lawyer/client confidentiality between the prosecutor and a laywer working in his/her office.
Joan, clearly the issue was not lawyer/client confidentiality. Clearly, the issue was revealing a violation of professional ethics on the part of the prosecution. The prosecutor's office did not want that violation revealed (duh!), and they obviously convinced Smith that reporting this breach of professional ethics would itself be a breach of professional ethics. Obviously, it was the "murkiness" of the ethical rules that enabled the prosecution to create enough of a doubt in the mind of a conscientious and ethical lawyer that he kept the truth to himself for all this time, although as the article says, he was very torn and agonized about the right thing to do.
You write that the article "makes no sense" and you "doubt very strongly Smith could not have reported prosecutorial misconduct." You may be right, but this is also not the point. Your opinion is your opinion, but it IS an opinion. Clearly, Mr. Smith was of a different opinion -- or at least felt there was enough doubt about the ethical issue that he was persuaded to keep his mouth shut for 10 years. He was caught between two professional and personal values: respecting the ethical rules of his profession, and saving the life of a man who was, he felt, wrongfully convicted as the result of prosecutorial misconduct.
This does not seem so very difficult to understand, and it certaintly does not, in my view, fall into the category of "making no sense."
In Mr. Smith's position, you would perhaps have made a different decision. But you were not in his position, and you are not him.
Everything I have written above also leads me to conclude that I have no idea why you feel the NYT "got this story wrong." The NYT reported the story as the story is, gave us the information as it exists, and imparted to us the facts of what happened, and why they happened, as they happened. I don't begin to understand why you conflate your disagreement at Mr. Smith's reasoning in this case with the issue of whether the NYT "got the story right."
Hey Kathy!
Well, I will explain it to you. Smith claimed the bar told him he was not allowed to tell the court about prosecutorial misconduct, or at least to report it to the Bar to take action against the prosecutor for mis-conduct. Automatically one asks "on what grounds"? What professional ethic is there that does not allow one to report a fraud? Confidentiality is the only thing I can think of that they would base it on. What law do you know of that states that you cannot report a case of setting up a fraud against the court? I can't think of any.
I don't know what Smith's problem was, but I honestly do not believe he kept silent for all these years because of some advice given to him by his state bar. There is something missing in this story. An opinion given by an ethics advisor of the State bar is NOT binding. He could have gone elsewhere. This story is either wrong and has missed some important details, or Smith ought to have his license yanked for being an idiot. If this story is true he does not have enough common sense to be a lawyer and he himself committed an ethical breach by not revealing a fraud perpetrated upon the court. There is something not right about this story. It makes no sense. I am inclined to think the NYT, and I did read the article you linked your post to, is not in full posession of the facts.
Take Care
Joan
Confidentiality is the only thing I can think of that they would base it on. What law do you know of that states that you cannot report a case of setting up a fraud against the court? I can't think of any.
Nothing in the article said it was a law. The claim (by the prosecutor's office) is that it was a matter of legal "ethical rules." The vagueness of what that means is perfectly understandable, since the prosecution's real motive, obviously, was to cover its own ass.
I don't know what Smith's problem was, but I honestly do not believe he kept silent for all these years because of some advice given to him by his state bar.
Well, I don't know what you base that belief on, other than your conviction that Smith should not have felt himself to be bound by the state bar association's telling him he had to keep silent.
There is something missing in this story. An opinion given by an ethics advisor of the State bar is NOT binding. He could have gone elsewhere.
Yes, he could have, but he chose not to, because apparently he believed that the state bar association could bring him up on ethics violation charges and possibly disbar him if he went against their wishes. Whether the opinion was binding or not is a matter of judgment, interpretation, and opinion, since this is not criminal law we are discussing, but a particular state bar association's particular code of ethics. I don't know where you get your certainty from about whether the opinion of an American state's bar association is binding or not, when you don't practice law in that state, and presumably have not exhaustively research the legal ethics rules in that state.
This story is either wrong and has missed some important details, or Smith ought to have his license yanked for being an idiot.
You cannot have your license to practice law yanked for "being an idiot." I realize you probably did not mean your remark to be taken literally -- my larger point is that I don't agree that Smith was an "idiot." He may have made the wrong decision, but I don't see any reason to conclude that he made it in bad faith.
If this story is true he does not have enough common sense to be a lawyer and he himself committed an ethical breach by not revealing a fraud perpetrated upon the court. There is something not right about this story. It makes no sense.
Well, I don't agree that the article makes no sense. It makes sense to me. I don't see that this is an issue of common sense at all. I see it, as I said before, as an issue of being caught between contradictory moral values, and that does not strike me as an unlikely scenario, because people struggle with different values that contradict each other all the time, every single day (not the same person every day of course, but it's a totally normal human phenomenon). And unless you're saying the reporter made up quotes, I don't see how the story could be "not true."
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