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On Sunday night 60 Minutes reporter Bob Simon talked to Alton Logan, who's been in prison since he was convicted of murdering a McDonald's security guard in 1982, and to lawyers Jamie Kunz and Dale Coventry, who have known the whole time that he was innocent but kept it to themselves. Simon respected the dilemma Kunz and Coventry found themselves in -- the actual killer was their client and had admitted to them that he did it, but their code of ethics forbade them to do anything that would increase his legal jeopardy. But Logan couldn't understand why that code of ethics mattered more to Coventry and Kunz than ending the injustice that had sent him to prison for life, and Simon seemed content to leave his audience unable to understand it either.
Probably 13 minutes wasn't long enough to tell a story this complicated. Here's what Simon boiled down and left out: There weren't two lawyers who knew Logan was innocent and signed an affidavit saying so -- there were four. One of them had no ethical obligation to Wilson -- he represented Wilson's accomplice in the murder. Furthermore, the police and prosecutorial work that convicted Logan was disgraceful. Evidence as compelling as the murder weapon -- which police confiscated during a manhunt for Wilson after he shot and killed two police officers (an unrelated crime) -- wasn't pursued.
It's hard to know what to make of that affidavit Coventry kept in a lock box under his bed for 26 years. At first glance the writing of it looks conscientious and farsighted -- but was it also a way to do nothing and call it something? I couldn't support Kunz and Coventry's long silence but I sympathized with them for the agony it caused them. But on TV Kunz said something bizarre. He said there are probably other attorneys keeping the same sorts of secrets, and "I don't want to be defensive about this, but what makes this case so different is that Dale and I came forward. And that Dale had the good sense to talk to Wilson before his death and get his permission [to speak up after he died]. Without that, we wouldn't be here today."
Perhaps Kunz and Coventry mean to impress us with how little wiggle room the canons of the law allowed them. But if the canons are that absolute and they obey them that absolutely, then they're turning ethics into ideology. I wish Simon had stopped them right there and asked if he'd heard right: Without the permission of Wilson, a street thug, the killer of three men, you would have let him rule you from the grave, while an innocent man continued to rot in prison? I suppose they would have, but I'd much rather believe they had no intention of allowing such a travesty and realized that if they asked Wilson’s permission he might refuse it—and might even put his refusal in writing. No, I'd much rather they were telling us a white lie now than believe that they'd actually have let those canons keep Logan in prison forever.
After my reporting on this case Kunz made a fascinating reply -- which he frames as a letter to Wilson (scroll down to "Of All the Lawyers in the World . . ."). And here's a link to John Conroy's report on the Alton Logan case Monday morning on WBEZ. Conroy began covering covering Andrew Wilson for the Reader in 1990 in the context of his pivotal role, as a victim who sued the city, in the uncovering of police torture in Chicago. His last Reader piece examines the status of the scandal now that Wilson has died.
Logan's attorney, Harold Winston, was in court Monday trying to get Logan a new trial. The lawyers' affidavit is one piece of new evidence and Winston has more -- witnesses who never testified at the first trial in 1982. On Monday circuit judge James Schreier listened to the account of Marc Miller, an attorney now living in Florida who back then represented Logan's codefendant, Edgar Hope. Miller's story is that Hope told him Logan was innocent and ordered him to pass that information on to Logan's lawyer. Miller says Hope told him he had only one partner in crime and that was Andrew Wilson, which Miller could find out for himself just by asking around on the street; Hope didn't even know Logan. Miller and Kunz and Coventry were all members of the homicide task force of the Cook County public defender's office; Miller passed on to them almost immediately what Hope had said. They asked Wilson -- was that you in the McDonald's? -- and Wilson said it was. (Miller was much more circumspect with Logan's trial lawyer, whom he didn't know.)
The third signature on the affidavit was that of Andrea Lyon, the public defender who notarized it. The fourth signature was that of Miller. He testified Monday over the objections of assistant attorney general Richard Schwind and Edgar Hope's current lawyer, Richard Kling. Hope's trying to overturn his life sentence on the grounds that he's innocent too. The affidavit and Miller's testimony both implicate him in the crime he says he didn't commit.
Winston's been hoping that Schreier will order a new trial or, even better, that the attorney general's office will free Logan. But Schreier merely scheduled another hearing for April 18. "They are quick to convict but they are slow to correct their mistakes," Alton Logan told Simon on 60 Minutes.
There will be more here and elsewhere. ABC World News is working up a story of its own.
But while I hold my duties under the Illinois Rules of Professional Conduct quite dear, I hold my duties as a human being even more dear. The silence of defense counsel when the client confesses in confidence is a difficult concept for most to grasp. It is, however, a necessity. Where no immediate harm (save to perhaps the victim or their loved ones seeking closure) results from that silence, though, it is easily defensible (at least in theory). Not so where that silence does direct, obvious and ongoing harm to another, particular when that other is wholly innocent.
There should of course be consequences, visited by the Attorneys Registration and Disciplinary Commission, for the violation of the rule that prohibits disclosure of client confidence. But under these circumstances, Kunz and Coventry should have spoken up and suffered those consequences. It may not have been the technically "ethical" thing to do, but if would have been the RIGHT thing to do.
Again, though, its unlikely that I'll ever have to make that choice, so if it seems that this is but empty moralizing, I stand guilty as charged.
If Wilson's attorneys had disclosed the confession way back then, one of two things would have happened: 1) the prosecutors would have declared it false and fought tooth and nail (probably successfully) to keep it out of Logan's trial, or 2) the prosecution would have adjusted its theory to support three offenders instead of two. It's much more likely than not that Logan would have been convicted anyway. Who would have believed a cop killer like Wilson anyway?
It is just so typical of the media that for the most part coverage of the story lays the blame at the feet of the least culpable players -- the public defenders -- rather than the prosecutors who sent away an innocent man for life. When is someone going to ask them to apologize for this tragedy?
The problem here wasn't with the public defenders - the cops and state's attorneys were the ones that charged Logan and put on a (now discredited) case against him. Their reasons were obvious and bad - Wilson was already sure to get natural life or the death penalty for another crime, and here was Logan, available and black. Once Logan was indicted, of course, the Cardinal could have testified that Logan was teaching macrame to orphans at the time of the killing, and the State's Attorney wouldn't have budged on the case.
(1) Revelation of the confession would have almost certainly resulted in the death penalty for Andrew Wilson in light of his previous conviction for murdering 2 cops. Choosing not to kill one man for the sake of freeing another might well be a morally correct decision.
(2) However, no one has asked Coventry and Kunz whether they ever tried to work out a deal with Wilson and the prosecutors for immunity from the death penalty if Wilson confessed. Wilson was serving a life sentence and could not have been further harmed by receiving another life sentence.
People have brought up that it could have been a morale decision to withhold information to keep a gleeful murderer from the death penalty. I disagree. Wilson should have received the death penalty from the beginning and there should have been a party when he was put to death showing everybody's happiness he was dead.
one minute is too long for someone to hold on to information that could free you. it is one minute wrong also.
when we keep information about a murder from the police we can be sentenced to life just like a person responsible for the act itself.
why would someone be any less responsible for keeping information that could free someone to have their life back when it has been wrongly taken by the system?
Because it happens. And it is worse than death.
Rule 3.3. Conduct Before a Tribunal
(a) In appearing in a professional capacity before a tribunal, a lawyer SHALL not:
(2) fail to disclose to a tribunal a material fact known to the lawyer when disclosure is NECESSARY TO AVOID ASSISTING A CRIMINAL or FRAUDULENT ACT BY THE CLIENT.
(b) The duties stated in paragraph (a) are CONTINUING DUTIES and apply EVEN IF COMPLIANCE REQUIRES DISCLOSURE OF INFORMATION OTHERWISE PROTECTED BY RULE 1.6.
In my humble opinion, deceiving the court into believing that another man committed a crime is a "fraudulent act by the client." As such, when the attorneys "failed to disclose" this "material fact," the attorneys violated their ethical obligation under Rule 3.3(a)(2).
Since, according to the Rules, 3.3 (candor to the tribunal) trumps 1.6 (maintaining confidential information), the attorneys clearly had an escape valve. They simply chose not to use it.
Simply our humble opinions,
Morley Moore and Ingrid Ingram
for Traton News