Only once have I had to take the witness stand to plead the Fifth Amendment privilege against self-incrimination.
I was seeking permission to withdraw from representation of a man on death row. My former partner and I were handling his appeal, trying to keep the state from killing him. When a conflict arose between my interests and the interests of the client, I asked the court for permission to stop representing him. The state thought it a ruse, another delay tactic to prevent justice’s needle from reaching the vein of the condemned.
I knew better. I knew that I had erred in a way that could land me behind bars if the state knew, and could prove, the truth. So I refused to answer certain questions when called to the witness stand, asserting that answering those questions could tend to incriminate me.
A long time has passed since then. The statute of limitations has expired, and the truth can no longer imprison me.
“Can we mail this?” our paralegal asked me one hectic day. It was a letter addressed to a third party. It was written by our client.
“Sure,” I said. After all, what’s the cost of a postage stamp? The state was trying to kill this man, surely we could give him the courtesy of a postage stamp.
A month later, the same paralegal appeared ashen at my doorstep.
“You better look at this,” she said.
She handed me a letter apparently written by the same client. Could we mail this one to a third party, just as we had previously done?
It was a stunning sort of letter, directing the recipient to purchase assault weapons, and accompanied by detailed drawings of the area surrounding death row. People were likely to get killed if this plan were taken seriously. What was in that first envelop we mailed?, I wondered.
We didn’t mail this second letter. I sought opinions from respected lawyers throughout New England and got all sorts of different responses, ranging from “destroy it,” to “send it out of state” so as to prevent the state from finding it, to “turn it over to the state.” Along the way, I learned that sending that first letter along was a violation of federal law; I was an unwitting felon.
There are all sorts of potential conflicts a lawyer faces in the day-to-day practice of law, avoiding them can yield difficult choices.
Deciding whether to represent a person accused of having committed a horrendous crime rarely presents any sort of conflict. So long as the accusations arise from completed conduct, the only limitation is purely subjective — can a lawyer provide zealous representation of the accused despite the accusations? Some lawyers, for example, will not represent people accused of certain crimes, the sound of the allegations themselves are so disturbing, the lawyer can’t commit. Or the matter may cut too close to home.
“What if the man had abused your child?” folks often ask. The answer is simple: I could not represent a person accused of injuring a loved one of mine, and I would not consider it.
In the death-row inmate’s case, different sorts of conflicts arose.
Truth be told, had I learned that he had shot his way out of captivity, I would have been rooting for him. The death penalty is as savage as the crime it seeks to avenge. Transforming civil society into the state of nature, making ministers of justice into executioners, relieves those targeted for death from the obligations of citizenship, that position is as old as Thomas Hobbes’s Leviathan, written in the seventeenth century.
But things weren’t so simple for me. What was in that first letter? What if there were an active plot? What if someone came to harm because I had failed to act? Much though I deplore the death penalty, I did not believe, and do not believe now, that my opposition to it gives me the right to endorse violence as a means of defeating it.
I opted to turn the escape plans over to the Commissioner of Corrections, who appeared one Sunday afternoon in my office together with a representative of the Attorney General’s office.
“I think you should have these,” I said, sliding the plans across a conference table.
“I won’t answer any questions about how these came into my possession.”
It was a quick meeting.
What now of my relationship with the client?
I had betrayed him in a fundamental way, disclosing his chance for liberty, and perhaps life itself, to those who had vowed to kill him. What’s more, my interests were now in conflict with the client’s. I had not told the state about the first letter. The client knew. What if the client told the state about my earlier crime? Could he trade that testimony for something that would benefit him?
It didn’t take long for lawmen to start asking questions. I refused to answer them on Fifth Amendment grounds. The investigation went nowhere.
But my relationship with the client, a man whose case I cared deeply about, was destroyed. I never spoke to him again after turning the letter over the commissioner. I did not want to give him a chance to say that I had tried to influence him, thus opening myself to a witness tampering charge. The potential conflict fell like a cleaver, separating our interests forever.
The Jimmy Hoffa Rule is one of those bright-line tests that simplifies the life of a criminal defense lawyer. I will defend you against those accusing you of having engaged in misconduct prior to your becoming my client. But once you seek to enlist me in other unlawful acts, the line is crossed, and I cannot represent you with the clear-minded devotion to your interests required by the law. Hence, you can tell me you killed Jimmy Hoffa, and I will defend; just don’t ask me to help you hide his body, or, as in this case, to aid or assist in causing harm to come to others.
Lawyers keep difficult and disturbing secrets. That is the nature of the attorney-client privilege. But that privilege can be penetrated if lawyer and client agree to commit a crime or some act of fraud. There are lawyers sitting in prison who learned this the hard way.
Only once did I plead the Fifth Amendment in open court. I placed my interest against potential criminal prosecution above those of my client, who sought to escape from a death sentence by violent means. More than a decade after doing so, I still sometimes awaken in the dead of night agonizing over the choices I made in that case, still hoping that my now former client will defeat the state’s intent to kill him.