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Privileged Information (1984)
This is a case that has haunted me since I first read about it in Law School. Frank Armani and Francis Beige were Central New York attorneys appointed to represent serial killer/rapist Robert Garrow, who went on a crime spree in the Adirondacks in 1973. Their client was charged with one killing but revealed to them the location of two other bodies. After checking to be sure the bodies were there, the attorneys tried, unsuccessfully, to use this information as part of a plea bargain. Meanwhile, they were contacted by the distraught father of one of these victims, begging for information about the fate of his child. Believing that forensic evidence available from the remains might tend to further incriminate Garrow, they refused to acknowledge any information about other potential victims. Eventually, Garrow himself revealed the information at trial and the attorneys were charged with violating the code of professional conduct. Though the case and the surrounding publicity had devastating effects on the two men, they were ultimately exonerated, on the basis that they had acted within the scope of attorney-client privilege.
Though I would have behaved differently, I do not particularly quarrel with the attorneys' actions. I do though find the ethical regime which requires such a result to be abhorrent. The basic theory underlying attorney-client privilege is that in order to guarantee the best possible defense, clients must fully disclose all information to their attorneys, and that the only way to insure that they feel comfortable doing so is to grant the privilege. This reasoning is simply not compelling. If full disclosure really is essential to a good defense, then the client has a vested interest in disclosure--they after all are the ones most interested in a good defense. It seems entirely fair to let them choose between holding back incriminating information at their own expense, or sharing that information at some peril.
Moreover, to allow (arguably, to require) lawyers to withhold such information from the Court is to turn the legal system into more of a game than a search for truth and justice. I have no problem with a set of ethical rules, societal laws and constitutional rights, which seeks to protect the innocent from unfair prosecution and even to protect the guilty from abusive practices, but this must be balanced against society's interest in protecting its citizenry, enforcing the law and meting out justice. There has to be some difference between preventing law enforcement officers from beating information out of a suspect or illegally searching his premises, and officers of the Court actually withholding evidence that they are aware of, however obtained. I just don't see what interest was vindicated by concealing the existence and location of the two corpses. Were they revealed to law enforcement it would not negatively impact Garrow's access to a fair trial : if he did not kill them, he'd have nothing to fear. If he did, evidence from the bodies might well point towards him, but so what ? The essence of the legal process should be that impartial examination of the evidence reveal the culprit and that evidence be used to convince a jury of his guilt. The mere revelation of the bodies would not have sent Garrow to prison, he still would have been afforded all the legal protections of the trial system and his fate would have still depended on the judgment of a jury of his peers.
As I say, I would have acted differently than did Armani and Beige--I would have told the father where the bodies were, informed the Court of my action and resigned from the practice of law, accepting whatever punishment this action entailed. Then again, I never practiced, so that's easy for me to say. Further, I understand that many attorneys believe in the necessity of rules such as this and feel that they serve noble purposes. For that reason, I too would have exonerated these men. It is the professional code itself that leads lawyers to make these kind of decisions and we can hardly punish them for behaving ethically. But it does seem that ethics and morality diverge at points like this : one would prefer to see morality triumph over ethics. Regardless of how you come down on the issues involved, this book offers a fascinating look at how such issues and decisions play out in the real world and how they impact the people who have to deal with them.
-REVIEW: of PRIVILEGED INFORMATION By Tom Alibrandi with Frank H. Armani (John Katzenbach, NY Times Book Review)
-ARTICLE : Garrow taken to Dannemora Prision After receiving 25-year sentence (July 2, 1974, The Leader-Herald)
-ARTICLE : Robert Garrow, Slain in Shootout, reportedly may have help in his escape (September 12, 1978, The Leader-Herald)
-LECTURE : ASPECTS OF CONFIDENTIALITY (Lectures 5 & 6)
-Professional Responsibility : Professor Devine's Class Notes
-DISCUSSION : SMOKING GUNS, BLOODY SHIRTS, AND VIDEOTAPES: A VIRTUAL ROUND TABLE DISCUSSION (Criminal Lawyers Association)