Justice or Mercy

by Kelly Siegler

"There's an old, old saying that goes people cry and cry for justice until they get it . . . and then they beg for mercy."

As a prosecutor, I have used that line to begin more punishment final arguments than I can count. The first time I heard the phrase, it struck me in so many ways. The most obvious meaning was what compelled my using the line in confronting what was all too often an attempt by a skilled defense attorney to argue to a jury that they should deliver "justice" to his client.

You have heard it all yourself. Pleading along the lines of "You have in your hands the ability, the opportunity, to right a wrong. A wrong that has been done to everyone here today. You have already righted one wrong by finding my client guilty, now you can right the wrong that has been done to this defendant. For all of the abuse this defendant has suffered in his own life that led to the events of that tragic night where a life was lost (or injured or abused)."

A skilled defense lawyer would continue . . . "Today you are like God, with the ability and the power to be kind and forgiving and just . . . to render justice today in this courtroom."

Justice. Really?

Real justice?

We could talk for days and I've made that argument many times to jurors that true justice does not exist. Just ask the parents of a dead child whether even a life sentence without parole or a death penalty seems like justice to them.

Justice is defined as "deserved; merited; reward or penalty as deserved." Getting exactly what is coming to you.

Mercy, on the other hand, is defined as "refraining from harming or punishing offenders; kindness in excess of what may be expected; the power to forgive or be kind; a fortunate thing; a blessing."

What do you think a good criminal defense attorney is truly asking and imploring a jury to do?

Could there be a more perfect phrase?

I'm not sure who coined the phrase. If you know, please pass it on. I do know that the Bible makes reference to the difference between mercy and justice in the Book of Ezra in the Old Testament. Chapter 9, verse 15 says, "O Lord, God of Israel, you are righteous! We are left this day as a remnant. Here we are before you in our guilt, though because of it not one of us can stand in your presence."

The NIV version footnotes go on to explain: "Ezra recognized that if God gave the people the justice they deserved, they would not be able to stand before him. Often we cry out for justice when we feel abused and unfairly treated. In those moments, we forget the reality of our own sin and the righteous judgment we deserve. How fortunate we are that God gives us mercy and grace rather than only justice."

What if we applied that same phrase to how we live our own lives?

In all of those quiet moments in our own lives when we talk to God. In our times of prayer, alone or with a group of people. When we have those talks with our children about how they should behave and when we attempt to do our best to mold their little minds. When we don't understand the ups and downs of our own lives and turn to God for answers. . . .

What if God truly gave each and every one of us exactly what we deserved or merited or had coming to us based on how we lived our lives and treated other people every single day?

That thought is a little scary, isn't it?

Aren't we blessed that God is in the mercy-granting business.

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A Lesson in Confessions

by Katherine Scardino

Fade in to a dimly lit small room with a low bulb hanging over a square table. Two hardback, uncomfortable chairs. There is one door to the room with no windows. A young black man is sitting in one of those straight-back chairs facing an older, white man with a badge so big one could not miss it hanging over his belt.

The white man has on stiff, creased Wrangler jeans with shiny polished black cowboy boots and a starched white shirt. His hair is short and graying. His red face is about an inch from the sweating face of the young black man and he is yelling and pounding on the table.

“You know you are lying! Tell me you did it and we can go all go home!”

That is what we generally think of “confessions.” Not very nicely done . . . but productive. However, as with everything else in our lives, I repeat what I have said many times before on Women in Crime Ink - THERE ARE RULES.

When it comes to an accused person giving a statement, here is "The Rule of all rules":

“A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion under the rules hereafter prescribed.”

We have all heard officers on television (or maybe, even in person) recite your “rights” to you. Those rights are referred to as your “Miranda rights,” a slangy term for the holding in Miranda v. Arizona, a case decided by the Supreme Court in 1966. Two of these rights that must be read to you at the time you are making a statement to the police is that (1) you have the right to have an attorney present to advise you before and during any questioning and (2) you have the right to remain silent and not make any statement at all.

There have been literally thousands of cases citing Miranda v. Arizona, where a defendant is contending that his constitutional rights have been violated in some manner. In most criminal cases, the officer at least makes an attempt to question an accused citizen. This accused citizen either cooperates and tells the officer everything he knows, or he refuses to make a statement.

But, whatever he does, it must be done voluntarily. In other words, the officer cannot beat a confession out of you; he cannot promise you something that he knows he cannot deliver to you (such as your freedom); he cannot withhold your attorney from you if he is there and wants to advise you. You have the constitutional right to refuse to say anything, and especially that which may tend to incriminate you.

I bring all this up to you, because Texas has a Death Row inmate who very recently just hit the jackpot - a Federal judge here in Houston just gave him a new trial. He is currently in the process of being removed from Death Row and returned to the Harris County Jail. His name is Robert Fratta. Our own Kelly Seigler was the prosecutor.

In 1994, Robert Fratta was accused of hiring two men to kill his wife. The couple was going through a very contentious divorce/custody fight during that time, and Fratta apparently made several statements to friends about him wanting her dead.

Fratta’s two co-defendants were Howard Guidry and Joseph Prystash. All three men received death sentences.

In all capital cases where the jury has sentenced an individual to death, there is an automatic direct appeal. The convicted person also has a Federal appellate process available to him as well, and it was through this avenue that Fratta’s case got reversed and a new trial granted.

What is important is why. When the police officers arrested Mr. Guidry and brought him to the police station to question him about the death of this lovely, young woman named Farah Fratta, the officer told Mr. Guidry that he could not see his attorney, and then lied to him and said that the lawyer had given Guidry permission to talk to the officers.

So, he did and confessed to being the triggerman in the killing and to being hired by Mr. Fratta, and also implicating the other accomplice, Prystash. After all the dust settled . . . after all the objections and rulings . . . after all three men went through a jury trial in State court (where Guidry’s confession was admitted into evidence in front of each jury, and other hearsay testimony was admitted, but later ruled to be inadmissible) . . . and after all three defendants were sentenced to death . . . after all the appeals . . . Guidry and Fratta walked out of the appellate maze with a chance at a different verdict in State court.

Guidry has already had his retrial; he heard that one-word verdict and the dreaded death sentence for the second time. But Mr. Fratta’s new trial is yet to come.

In past postings, I have talked about these rights that you and I have and how important they are. I know some of you will start posting your disgust with the criminal justice system immediately upon reading all this. But, remember, the defense lawyer’s objections that were ultimately ruled valid had to do with a police officer not allowing Mr. Guidry to talk to his lawyer and his confession being admitted as evidence in front of all three juries, who then handed down death sentences.

Think about how our system would work if the rules were different. Imagine your son or husband being arrested for suspicion of committing some crime and being placed in similar circumstances.

Does it make a difference in the way the rule works whether the person is guilty or not?

How would anyone know that during that early stage of investigation?

Do you think Fratta should get a new trial because of the behavior of the officer with a co-defendant?

Do you even think Fratta should be sentenced to death when he was not the triggerman?

A lot of questions.

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Civilization and Its Discontents

by Katherine Scardino

We talk so much at Women in Crime Ink about violent events in our world . . . and how wrong (regardless of which side of the table you are sitting on) our courts are about almost everything . . . and how our country is going to the dogs, etc. etc. . . . that I thought it might be nice to venture in another direction for a change. I don’t know . . . call it my "sensitive side."

Recently I was driving back to Houston from visiting my sister in deep East Texas. That’s the part of Texas where the country roads are "real" country roads—where the trees meet in the middle above your head, where buzzards are eating road kill in the middle of the road and you have to veer your car around them because they do not fly away even when a car drives by.

But I digress. As I was tooling down the road, I just happened to look beyond the first row of trees near the road. I noticed that behind what a driver would ordinarily see was . . . woods. I mean WOODS—like thick trees all growing tight as pick-up sticks without any cute paths or roadways in the middle.

So I started thinking (which is always dangerous), but have you ever just stopped and thought how far our country has come in a mere 150-plus years? There was no machine for cutting trees, paving roads, building houses; gads, there wasn’t even a television to watch CNN on, or "Days of our Lives."

One hundred and fifty years is not even a speck in the timeline of our planet. It is not much of a speck in the timeline of almost every other country, except the United States of America. We are so new and yet we have come so much further in our culture, education, inventions, music, and our laws, especially our laws. With all the advancements in other areas, have we really "advanced" in our legal system?

In our country's infancy all those years ago, we were a rough nation, especially in the area of crime and punishment. We were still having shootings in the middle of the road (you know, in front of the saloon, à la John Wayne), hangings off the old oak tree—and for crimes as awful as horse stealing. Maybe we were just simpler then. Our lives were not so complicated.

I wonder if we have evolved for the better or for the worse? Long before the mid-1800s, we punished people even more severely. I have a book that I frequently refer to: The History of Capital Punishment. It was written by John Laurence in 1960, and has a foreword by Clarence Darrow from Mr. Darrow’s book: Crime, Its Cause and Treatment. In 1922, Darrow wrote: "Frequent executions dull the sensibilities toward the taking of life. This makes it easier for men to kill and increases murders, which in turn increase murders, and so on, around the vicious circle."

So even then, this great lawyer understood that killing people because they kill people does not really get us anywhere. And in closing, Mr. Darrow said the following:

In the end, this question is simply one of the humane feelings against the brutal feelings. One who likes to see suffering, out of what he thinks is a righteous indignation, or any other, will hold fast to capital punishment. One who has sympathy, imagination, kindness and understanding, will hate it and detest it as he hates and detests death.

In my musings driving down the country road, looking at the woodsy backdrop and thinking of what life would have been like "back then," I wondered if we were really better now.

Sure we have all our "toys" and the great mysterious Internet—which in my mind is like the monolith in the film 2001: A Space Odyssey. We all worship it as being the greatest thing—ever, but we don’t really know what IT is, right?

But it is part of our new world. Have we done the right thing by "evolving" to a form of capital punishment called lethal injection—instead of the hangings, firing squad, drawing and quartering?

Clarence Darrow seemed to think that by doing something on a regular basis, then it was not a big deal any more—just a regular thing. Is that what we are doing by executing people because they execute someone else?

Have we dulled our sensibilities to the point that it is no longer front page news that we have killed another person? I notice that executions are generally no longer on the front page—but have been relegated to the inside page of a lesser section of our local newspaper.

What is next? Who wants to see an execution on television? Wendy Lesser explored the societal implications in her book Pictures at an Execution. When the State executes, it does so on behalf of "The People." What's the next step in a world where "virtual reality" too often becomes reality? I think of the recently released movie Untraceable, where real-time online killings become a mania that users participate in by sheer number of hits, making us all "hit"men.

Do "The People" really wish to become a futuristic version of the lynch mob of our primitive years? How can that be considered progress? Anti-death penalty folks say "Nature loves life" and life should be protected and preserved.

Clarence Darrow, again, had a great thought: "The thing that keeps one from killing is the emotion they have against it; and the greater the sanctity that the State pays to life, the greater the feeling of sanctity the individual has for life."

Yet our State does not show us much "sanctity" for life. We do not show much sanctity for life. So where are we going with all this?

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Sound the Horn: In Texas, You Can Kill Without Being Threatened

by Katherine Scardino

Everyone is talking about Joe Horn, the Pasadena, Texas citizen who shot two Black burglars in the back after he saw them burglarizing his neighbor’s residence. We have all heard the 911 taped conversation with Mr. Horn - where the Operator is saying "Don’t go out there" . . . "Stay inside" . . . "You are going to get shot." (Listen to the call here.)

And our Mr. Horn (pictured upper left) stating that he is going to go outside with his gun and shoot them. He did, and he killed two people. Two people who were Black, burglarizing a home, and I have heard, were illegal immigrants.

This week, he was "no-billed" by a Harris County Grand Jury, meaning he will not face criminal charges for the deaths of two people, Diego Ortiz (left center) and Miguel Antonio DeJesus (lower left).

Let’s look at our Penal Code to see whether we agree with the Grand Jury. Did he use deadly force in defense of himself? No, we know he was inside his house when he called 911 dispatch; the burglars were not burglarizing his home; nor did they provoke Mr. Horn.

How about the use of deadly force in defense of a third person? No, there was no "third person" around.

That leaves us with whether he was engaged in the "protection of one’s own property." He is justified in using deadly force to protect his property when he "reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property."

But wait a second. That refers to his own property. How about another person’s property? Under this statute, he is justified in using deadly force if he "reasonably believes the deadly force is immediately necessary" to prevent the burglars from "imminent commission of arson, burglary, robbery, etc."

I thought the burglars were walking away from his neighbor’s home. If so, there is no "imminent" offense.

So why is he being allowed to walk away? What attitude have we assumed that says he did the right thing. I know. Could it be that the people in our area are sick and tired of their hard-earned property being stolen, their women being raped and/or assaulted, criminals breaking into homes and taking property, killing people, and the list goes on. We are just sick of it. And, you know what? I agree.

Do you think Joe Horn would be facing charges if Joe Horn was Black and he killed two White people under the very same circumstances? Yes, I believe that. I know it is terribly insulting to us to think that we are still racially motivated. But come on, let’s get real. Because we are fed up with crime and because he "only killed two Black people" who were "illegal immigrants" are the reasons Joe Horn can breathe easy today.

Maybe that’s OK. What do you think?

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GITMO Ruling: Supreme Court Got It Right

by Katherine Scardino

This is a little off the usual topic, but it's an issue that bothers me and one that should bother you. What about Guantánamo Bay prisoners?

Was the decision last week from the United States Supreme Court in Boumediene v. Bush the right one? Do you agree that those whom the United States has imprisoned at Guantánamo Bay, Cuba should have the right to avail themselves of our basic constitutional right to habeas corpus?

Just what is "habeas corpus"? Literally, it means "have the body." To the legal world, it means that the imprisoned person has the right to require the State or Government to show cause why they are being held. To the rest of the world, it means that authorities should not be able to take away your liberty without having to answer: What's this all about? And what gives you the right?

It is not a "get out of jail free" card. When our forefathers drafted the United States Constitution in the mid- to late-1700s, they agreed that no longer would the citizens of our new United States be held without bail, or without "due cause." This constitutional bedrock was instituted to assure that the Government could not pick up citizens and throw them in jail or prison without the prisoner having some recourse. That recourse is habeas corpus.

My understanding of the Boumediene ruling by the Supreme Court is that it simply allows the Gitmo prisoners the right to habeas corpus, entitling them to the right to file a document that demands an answer to this core question: Do you (Government) have the legal right to keep me in prison?

I have heard people are outraged at this ruling. Our Republican presidential nominee, John McCain, was vocal in his criticism of the Supreme Court ruling stating the decision was "one of the worst decisions in the history of this country." Perhaps he believes that this decision should be in the same category as the Dred Scott decision, which upheld slavery, and Plessy v. Ferguson, which permitted separate but equal accommodations for races.

In actuality, the Supreme Court only gave the Guantánamo prisoners the same right that any person would want if they, or one of their loved ones, were arrested and placed in jail in another country.

The problem with that belief is that most countries do not have this thing called "habeas corpus." Many countries CAN arrest you--a citizen of the United States of America--and throw you in jail. What recourse do you have to assure that you are not languishing in jail for years before anyone decides your fate? I would bet that habeas corpus is not one of them. Remember the movie Midnight Express? That harrowing film about an American who was locked away in a Turkish prison was based on a true story.

So before you join the ranks of the uninformed citizens criticizing our Supreme Court, stop and think for a moment. Is it not OK for an inmate in a foreign country to have the right to ask "what are my charges and do you have enough evidence to hold me here?"

Guantánamo is an unacceptable legal black hole. Our U. S. Supreme Court simply said to all of us that we are a nation committed to the rule of law--not the rule of men.

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Should Sex With a Minor Always Be Major?

by Katherine Scardino

Despite the recent controversy over the polygamist sect raid in Eldorado, Texas, pretty much all of us would agree on one thing: fifty-something-year-old men should not be having sex with minors. But what if that male was another teen, who happens to be of "legal" age, say eighteen or nineteen?

In Texas, an individual may be prosecuted for Aggravated Sexual Assault under certain circumstances. One of those reasons is if the victim is under the age of fourteen. There is no "escape" clause; there is no "except for" clause.

For instance, if you are a young man and you have sexual intercourse or other forms of sexual contact with a girl younger than fourteen years, you are strictly liable for that offense.

Try this hypothetical: You are a young man, age nineteen, sleeping in your bed one Saturday morning. Your phone rings. It is a police officer asking you to come to the police station and make a statement. "Why?" you ask. You are then informed that there has been an allegation of aggravated sexual assault against you. Yikes! You say. What in the hell is this all about?

Like most young people today, this 19-year-old has a MySpace page. About a year ago, he received a message from a young girl who, after several back and forth Internet conversations, told him she was sixteen. Even though sixteen years of age is still a minor, our law tells us that it’s OK for a boy to have a relationship with a minor if there is no more than a three-year age difference. Of course, he had no clue about that at that time, but has since learned of this law.

So, after a week or so of chatting on MySpace, a lot of "sex-talk," this 19-year-old makes arrangements with the "16-year-old" to meet at a movie theater in the area where she lives with her parents and sister. They meet and have sex. He goes back to his life. The young girl calls him many times after the meeting to start a "relationship." The boy was not interested. The sexual assault allegation comes next.

Do not misinterpret. Neither I, nor anyone I know, condones young men having sex with young girls. But, we have to be realistic and recognize that, first of all, most 13-year-old girls do not look thirteen years old. They are much more sophisticated than I ever thought about being at the age of thirteen. Most of them wear makeup straight from Neiman Marcus makeup counter (maybe circuitously through their mother’s supply, but nevertheless, adult makeup). And, their attire mimics Britney Spears, Lindsay Lohan and other Hollywood wannabees. While I certainly sympathize with the parents of a 13-year-old girl--even one who appears at first glance to be older than thirteen--I also sympathize with the parents of this young man. He did not do what I always told my sons to do: When in doubt, ask to see her driver’s license.

The above situation is one of the scariest for any young man. He is technically guilty. Period. If this young man went to trial on the charge of Aggravated Sexual Assault and was found guilty, as he assuredly would be, he would be sentenced to a term in prison, either 5 to 99 years, or for Life. Upon release, he then would have to register as a Sex Offender for the rest of his life.

As a registered sex offender, he would most likely forever be denied employment or the ability to live in an apartment. If he was able to get probation for his "offense," he would still have to register as a lifetime sex offender--same problems. (This is precisely the reason a 17-year-old Atlanta boy chose to do a ten-year sentence rather than plead guilty to an offense consisting of consensual oral sex with a 15-year-old. He was released after serving two years.)

As a defense attorney, I am trying to convince the prosecutor that to ruin this young man’s life based on circumstances similar to the above would not be just. The girl is at fault morally and ethically--but not legally. A "child" is unable to give consent to sexual contact of any kind.

But consent is not all of the issue. It is the world we live in today. We have the Internet where our young people live. They are able to be in constant contact not only with their friends, but with anyone who is also as "Internet active" as they are. Anyone, anytime.

In Texas, the State Legislature almost changed this law during their last session, but a revision of this law did not pass. In my opinion, this is one of the failures of our criminal justice system. This law is just not right.

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Defending a Guilty Client

by Katherine Scardino

Based on my earlier articles and the replies by the readers, a number of you do not understand how a defense attorney can represent a client who they know is guilty. Since I am about to do just that, I thought I would share my feelings about it.

As I mentioned before, under our Constitution, anyone standing trial for a crime is entitled to certain rights, such as a fair and unbiased trial. We also possess the right to have evidence presented to the jury, as long as it is legally obtained--i.e., no busting down doors and searching your home without either consent or probable cause to do so. We also enjoy the right to have the jury only consider evidence that rises to the level of our standard of proof - beyond a reasonable doubt. Too, there is our right to be presumed innocent until a jury hears this type of evidence, believes it, and renders a verdict of guilty.

All of these constitutional protections have been around since the Constitution was written in the late 1700s. Do they apply to today’s way of living? We have so much more today than our forefathers ever even dreamed of - cell phones, faxes, the Internet. So, some of you say these rules are no longer applicable.

I am preparing for a trial defending a man accused of sexually assaulting his stepdaughter - not just once, but for years. There will be testimony from the accuser, pointing a finger at my client.

Some of you might question - How can you sit next to this person and defend him in a case like that? I will admit to you that these types of cases, those involving children, are the toughest for any defense lawyer - not just in the cold facts of the case, but emotionally as well. Most of us have children. We would want to string whoever harmed our child up by his toes, or by some other body part that is a bit more sensitive.

In defending this client, I am reminding myself of his rights as an accused citizen of the United States. I am looking at the evidence with a hard eye to see if it meets the standard we should expect. Did the State, in its eagerness to solve the crime, zero in on one person and fail to investigate any other evidence?

Generally, once a young person makes an accusation against an adult, there is no more investigation. No one calls the accused on the phone and asks whether you did this, or whether you might have a "story" to defend yourself. God forbid there should be an alibi or a reason for this accusation other than the truth of the matter - is there a divorce involved? Or a custody fight where it would be convenient for the father to have this hanging over his head, which would certainly chill the father’s effort to get custody of his children. No. It is straight to an indictment and trial.

So, I am putting my case together to present to a jury, and I will be honest with you, this one is hard. I will do my job to be best of my ability. I have to remind myself - I did not make the facts, I just work with them - and give him a constitutionally fair trial. That is all I can do.

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Ink Blotter - "The Judas Tree" & Polygamy

Ink Blotter

Join us this afternoon for a live chat that should be anything but garden variety. Today's subjects are polygamy and "The Judas Tree," a play based on real-life serial killer Dorothea Puente. Our special guest today is the playwright of "The Judas Tree."

Mary Fenger Gail (pictured below) will discuss the process of adapting a play from an actual crime story. Mary will join us for the first half-hour, from 4:00 to 4:30, and she will be happy to answer your questions about the creative process of generating a surreal script from an all-too-real crime story.

"I think theater should take us to unfamiliar worlds in a magical way," Mary told the San Diego Tribune. "More magic, more madness, heightened passion, acting that's beyond verisimilitude." "The Judas Tree" certainly fits the bill. At the center of the crime musical and courtroom drama is a mystical garden where flora burst from the surface and corpses dance below, giving testimony from the grave. If you missed Diane Fanning's post on the actual woman serial killer whose crimes were discovered when authorities spotted corpses in her garden, visit here.

The New York Times calls the production "a mythical play of operatic proportion," characterizing the world premiere as "a tale of magic, murder and seduction." MultiStages Theatre says it's a "multidisciplinary feast for the senses." And audiences are responding. Opening night was a sellout. "The Judas Tree" runs through May 11 at the CSV Cultural Teatro La Tea in Manhattan. Women in Crime Ink thanks MultiStages Artistic Director Lorca Peress for giving our crime blog some play in the Playbill.

The last half of the Ink Blotter will feature a discussion of the child custody issue with the Eldorado polygamist sect. At 4:30, WCI's Defense Attorney Katherine Scardino and our Policewoman / Novelist Stacy Dittrich will heat up the discussion. The question at issue: Did the government have a lawful right and/or a moral obligation to remove children from their families? This should be a spirited chat between our former sex-crimes cop and WCI's criminal defense lawyer. If you missed Kathryn Casey's post on the polygamist sect, click here.

See you in the blue "Ink Blotter" box along the right sidebar, nearly halfway down the page.

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The Right to Remain Silent?

by Katherine Scardino

I have been reading about the bizarre situation involving two criminal defense attorneys (pictured left) who represented a man who admitted to his attorneys that he committed a crime for which another person was convicted. The innocent person, Alton Logan (pictured below left), is currently in prison and has been for the last twenty-five or so years. Back then, the man who actually committed the crime (below right) wrote out a statement, gave it to his attorneys, and instructed them to keep that document in a safe place. He did not grant them permission to disclose this information. Their client recently died. The attorneys believed that because of the attorney-client privilege they were bound to honor their client’s wishes and keep quiet for more than two decades.

The attorney-client privilege prevents a person’s attorney from disclosing any confidential communications "made for the purpose of facilitating the rendition of professional legal services to the client." In Texas, this is under our Texas Rules of Evidence, Rule 503(b)(1). This rule is subject to ethical considerations if violated; i.e., for an attorney, that means a lawsuit or a grievance, something that could affect your livelihood.

This is a narrow question - very tight boundaries: The attorneys know information that could potentially release an innocent person from prison but they are ethically and legally bound to keep it confidential. The attorney-client privilege is dissolved only upon the death of their client, which happened in this case to eventually provoke the disclosure by the two attorneys. What would you do in same or similar circumstances? Could your conscience support this knowledge for twenty-five years? Would you "leak" the information to a police officer or someone in the criminal justice system in the hopes that more investigation could be done? Should the lawyers have told the authorities as soon as they knew this information?

Before you answer, consider this exception to the privilege:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

So, in my mind, the question becomes - Is it a "fraud" to allow an innocent person to languish in prison for many years? I believe that it is. If the attorney is attempting to assuage his guilty conscience by divulging information that is clearly a "confidential communication," then this is the only exception that might, just might, apply. The exception may help the conscience of the poor soul who is bearing this burden of knowledge, but there would be no guarantee as to a legal result if the client sued him.

I, as a criminal defense attorney, do not believe I could "sit" on this information and let an innocent person remain incarcerated for a crime I knew he did not commit. I believe I would have to step forward and suffer the consequences, whatever they may be. I would justify this disclosure by claiming, at least in my own mind, that it was fraudulent to keep silent about my knowledge. This information would eat at my soul. I could not contain it.

What would you do? If you are a regular citizen, and you had information that would clear a man’s name, you would freely come forward. If you are an attorney, it isn’t that simple. Seriously, what would YOU do?

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