A Prophetic Optimism and The Leviathan of Injustices
The Leviathan of Injustice
Wrongful conviction is arguably the leviathan of injustices. On the one hand, an innocent person is rotting 23 hours a day in lock-up, left to marinate in hopelessness and despair. On the other hand, a violent criminal is walking free, left to plot future crimes.
A Prophetic Optimism
Eight years ago I published a comment in the University of La Verne College of Law's Law Review Journal, entitled "Why the ABA Should Permit Lawyers to Use Their Get-Out-of-Jail Free Card: A Theoretical and Empirical Analysis." I was an optimistic law student and many thought my ideas were repugnant to the attorney-client confidentiality rules. I published a teaser in the Los Angeles Daily Journal, met with animated letters to the editor (also published days later).
A True Story
I was inspired by Mr. Alton Logan, who spent 26 years in prison while an affidavit attesting to his innocence remain locked away in a lawyer‘s closet. The lawyer never told law enforcement for fear of being disbarred, as the rules of attorney-client privilege prevented them from telling the truth. The rules made being a good person and being a lawyer mutually exclusive.
Alton currently lives with his wife, Terry, in Chicago. I was beyond humbled when I was contacted a few years back by Alton and Mr. Berl Falbaum, an author, who prepared to publish his book, "Justice Failed: How 'Legal Ethics' Kept Me in Prison for 26 Years." You can preorder your copy here, and yes, my comment is cited therein.
A Good Start
It wasn't until the September issue of the ABA Journal that I read an article "Innocence Awareness: some states now require all attorneys to report wrongful convictions", when I learned Arizona was the first state to adopt the rule I so optimistically argued for in law school. This article also explains how in March of 2017, the North Carolina Supreme Court approved Rule 8.6 of the Rules of Professional Conduct. Similar to Arizona, it extends the obligation to report information about a possible wrongful conviction to all attorneys, not just prosecutors. This rule applies when a lawyer has credible evidence—even if it’s protected by the confidentiality rule—that a defendant didn’t commit the offense for which they were convicted.
The first steps have been taken to adopt rules that could prevent the leviathan of injustices. Lawyers in Arizona and North Carolina now have the tools they need to prevent an innocent person from rotting in jail. If our consciousness was always willing to let 100 guilty men free than convict 1 innocent man, one wonders why the rule took so long. New York and California need to get on board.
~Patrick Santos is an attorney in Los Angeles, licensed only in California. (265982)