First off, the second Legal Aid counsel’s (and the guy tried) name was Tim Schwimmer.
Question, though: Who was the actress who played the first Legal Aid attorney? This has been bugging the hell out of me all day.
Robin
Okay, so if Bruner just told Bob where the bodies were, and Bob concealed that information, he couldn’t be charged with anything?
But since he actually went to go confirm that, and locked the door behind him, he became part of the conspiracy to conceal the evidence from the police?
The title of the episode as it came up in my Tivo was
“Bodies”
You mean Bob?
Sua thanks for the explanation. This episode is getting more convoluted as we go along.
Yep - well, not a conspirator, but an accomplace after the fact (not that there is much difference).
It’s not that confusing, really. You don’t have a legal obligation to make the police’s job easier, but you do have a legal obligation not to make the police’s job harder.
Ms Robyn I don’t know her name, but to nitpick, she wasn’t a Legal Aid lawyer. She was an attorney in private practice. Attorneys are called, on a rotating basis, to supplement Legal Aid by taking on cases pro bono.
Sua
Nitpick: it IS hearsay, but admissible as an exception to the hearsay rule.
I didn’t see the episode.
It’s unclear to me from the episode descriptions above if Bruner was with Bob when Bob saw the bodies and locked the door, or if Bob was there alone and Bruner was relating what Bob told him had happened.
If the latter, then I’m not so sanguine that the statement is admissible. The key element for an admission against penal interest is the state of mind of the declarant: he must know, at the time he’s making the statement, that it tends to expose him to criminal liability. If Bob didn’t realize that locking the door would constitute a crime, or believed that the privilege would shield him from criminal liability, then his statement is NOT against penal interest, and Bruner can’t relate it.
- Rick
Bob was alone. But then, I can’t see the locking of the door as anything other than a barely technical issue. The door was locked to begin with, and he left it as he found it. That may have screwed him up big time, but making a minor mistake like that shouldn’t magically give free reign to break privalege. It’s the client’s interests which are the highest order of business, not the DefAts.
I also don’t think that loophole is as big as it’s being made out to be. If it was, prosecutors could extract privaleged evidence from defense attorneys with impunity simply by concocting accusations against the DAs that would then allow the DefAts to ethics-conflict-free reveal things they otherwise wouldn’t be able to.
The killer was WAY screwier than Spacey’s Doe. He did look like Spacey, and he had the same shitck of being amused by messing around. But where Spacey’s character was reserved and coy about it, this guy was garish and full of all sorts of tics and outbursts.
The first attorney was played by Susan Floyd, who has made several appearances on L & O and also starred briefly in a God-awful sitcom on ABC when she had curly hair.
Actually, you’d be surprised how seldom actual defense attorneys go off to independently examine hitherto undiscovered crime scenes.
In other words, this is not the kind of fact set that has general application.
- Rick
No rational ethical scheme would require defense attorneys to go to prison in place of their clients.
And that precisely what was at issue here. The hidden bodies were evidence of additional crimes, ones Bruner wasn’t charged with.
As Bricker already noted, most defense attorneys aren’t idiots like “Bob.”
Furthermore, as I noted earlier, this exception to the attorney-client privilege isn’t to be used lightly. An attorney cannot breach the attorney client privilege upon mere accusation or even mere indictment. Only when it seems likely that the defense attorney will actually suffer criminal sanction may the privilege be breached. So a “concocted” accusation wouldn’t work - if the DA trumped up a charge against a defense attorney, the proper response would be to expose the accusation as false, not breach A/C privilege.
And Bricker, thanks for the corrections on evidence law. Ironically, even though I’m a litigator, I hate the laws of evidence and always screw them up. Fortunately, my practice is almost exclusively motion practice and appellate work. I pass on the evidence work to my partner and/or the associates.
Sua
But isn’t the judgement of likihood the DefAt’s own judgement? All they would have to do is claim to be scared of sanction. This lawyer clearly qualified: he and Jack (at least in the show) both agreed that the case was a groundless bluff based entirely on manipulating the jury’s emotions. So, even if the charge is baseless (its not necessarily, but that’s what the show implied) the mere fact that he figured the jury would convict could be enough.
Correction: Keweenaw is correct; the title of last Wednesday’s episode was “Bodies.”
Someday I’ll remember not to trust my memory. . .
As I think about this issue a bit more…
The location of the bodies does not, as far as I can see, establish a defense to the charge of accessory after the fact.
Again, I haven’t seen the episode, so I’m just going by what’s written here.
Attorney Bob’s client, Bruner, confesses to multiple murders and reveals the location of the murder victims’ remains in a privileged communication to Attorney Bob. Bob goes to the location to verify the truth of the confession. Evidently, the bodies are somewhere that’s behind a locked door. Bob unlocks the door, sees the bodies, and then locks the door again and leaves. He returns to Bruner and says something like, “Yes, I saw the bodies, and after I left them, I locked the door again.”
During plea negotiations, Bruner says, “I killed more people, and Bruner can verify this; he told me he saw the bodies and then locked the door behind him when he left.”
Based on that admission, Bob is indicted as an accessory to murder, the theory being that when he locked the door he began participating in the crime and coverup.
Nothing Bruner said to Bob in the privileged communication is a defense to this crime.
If, for example, the prosecution’s theory is that Bob and Bruner were accessories all along, and sought to show the jury that Bob opened and locked the door, and invited them to infer from that evidence that Bob had guilty knowledge of the crime, then Bob could rebut that presumption by breaking privilege to show his supposedly “guilty knowledge” came from the privileged communication.
But that’s not what the prosecution’s theory of the case is. The prosecution acknowledges that Bob got his information in a privileged communication, and alleges that his subsequent action in locking the door was itself a crime. The privileged information does not defend against that charge.
I’d welcome additional information and discussion, but from what I see, there is no legal advantage to be gained by breaking the privilege, and thus Bob can’t avail himself of Rule 4-1.6©(3) or its local equivalent.
- Rick
Does anyone remember which sitcom the guy who played Schwimmer was on?
As you can tell I am not one to remember TV character names very well.
This bugged me too. Thankfully my wife pointed out that she played the crazy vet on Tuesday’s SVU!
Yeah, that makes sense Bricker. Even if he told them WHERE the bodies are, that has nothing to do with the fact that he locked the door and, supposedly, became an accesory (though I’m still not sure I buy this claim). Either he did that or he didn’t: it doesn’t matter where it happened, or whether or not the DA finds the bodies, and trying to get him to tell where it happened is pure irrelevant blackmail, not a means of defense. If anything, telling where the bodies were would be BAD for “Bob,” because it would give the DA concrete evidence that the door was, indeed, locked. He would be helping to incriminate himself.
I disagree, harking back to my Professional Responsibility final exam. The hypothetical presented there was a follows:
Attorney Mike has had a long-time client on retainer (“Sean”). Sean has habitually paid his retainer and other legal fees to Mike in cash, in $100 bills. Mike used this cash to pay expenses, salaries, etc.
After several years of this, Mike is approached by an agent of the US Secret Service. It turns out that the $100 bills are counterfeit, and Mike has therefore been passing counterfeit bills. The agent informs Mike that the Secret Service doesn’t have a desire to press charges against Mike, but that Mike must inform them where he got the funny money. Mike refuses to do so, citing attorney-client privilege, and is charged. (N.B. for purposes of the examination, passing counterfeit money was a strict liability offense).
After being charged, Mike was informed that the charges would be dropped if he told the Secret Service where he got the funny money.
The question was what are Mike’s ethical obligations?
The answer was that Mike could inform on Sean if Mike were actually put on trial for the offense of passing counterfeit money, and where the prosecutors had established their prima facie case (survived a motion to dismiss after they rested their case).*
So, at least according to my Professional Responsibility professor, “establishing a defense to a criminal charge” encompassed avoiding criminal sanction by agreement with the prosecutors, even if the divulgement of privileged information did not, formally speaking, establish a defense to the charges.
Sua
*There was a second way Mike could divulge the information. By paying Mike in counterfeit bills, Sean had, in point of fact, not actually paid Mike for his legal services. Mike could sue Sean for payment, and divulge that Sean had paid him with counterfeit bills - R. 4-1.6©(2) (an attorney may breach confidentiality “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client”)
He was on Spin City
Sua:
The kicker, I think, is the offhand nota bene that the crime is a strict liability defense for the purposes of the exam question. If it weren’t, then Mike could inform on Sean to show his own lack of criminal intent.
But the exam question dodges that bullet, leaving the issue framed as you suggested it was. A quick search on my part failed to find any relevant commentary or actual cases that shed light on the issue. A more exhaustive search has to wait for Monday at work, but it sure looks like you, and your professor, knew more than I. 
- Rick