In 1998, the Supreme Court held in Swidler & Berlin v. United States that the attorney-client privilege survives a client’s death in the context of a criminal investigation.1 The underlying dispute involved Independent Counsel Ken Starr’s grand jury investigation of the dismissal of seven White House Travel Office employees (“Travelgate”) and the subsequent suicide of Vincent Foster, the acting Deputy White House Counsel at the time of the firings. When the grand jury subpoenaed the notes from a meeting between the late Foster and his attorney, the attorney and his firm, Swidler & Berlin, asserted attorney-client privilege over the notes and refused to comply. Eventually granting certiorari, the Supreme Court found that the privilege indeed prevented the notes’ disclosure—in other words, Foster’s attorney, like his client, was to take the exchange to his grave.2

Championing “full” and “frank” communication, the attorney-client privilege is so integral to the lawyer-client relationship that the client—every client, even a client fading on his deathbed—may rest assured that his lawyer’s lips will be sealed forever. In Foster’s case, the privilege meant that his lawyer could not be compelled, even at a grand jury, to disclose notes from a meeting that took place just nine days before Foster’s death.

For the criminal defendant, the privilege means a certain peace of mind. After all, a client (perhaps especially the guilty criminal client) wants assurance that his family and friends will never know precisely what he confided at crunch time to his one true “friend”—his criminal lawyer. But what of the risk that an injustice may occur posthumously if the lawyer’s lips remain sealed? Arguably, the only harm that could befall the deceased would be injury to his reputation. So, no ‘real’ harm, no foul, right? Or must the ethically minded lawyer nonetheless sit on his hands and allow a potential injustice to occur, all in the name of the attorney-client privilege? After all, what sort of ethics would that be?

The Jeffrey MacDonald Case

These questions result from the latest developments in a prosecution that has already spanned over four decades following the horrific murders of a pregnant woman and her two daughters on Feb. 17, 1970, at Fort Bragg, Ga.3 Jeffrey MacDonald, the victims’ husband and father, was convicted of the murders in the Eastern District of North Carolina in 1979.4 The MacDonald saga has continued ever since: MacDonald’s case has travelled back and forth on appeal (including several times to the U.S. Supreme Court) and has been the subject of considerable legal and crime news reportage.5

Once MacDonald’s principal defense, an alternative theory of the crime, was that four “drug-crazed” cult members had committed the murders. That defense’s exculpatory witness, Helena Stoeckley, testified that although she had not participated in the murders, her drug-induced condition and bizarre behavior following the murders caused her to wonder whether she had been somehow involved.6 Stoeckley’s testimony failed to save MacDonald: The jury quickly convicted him and he was sentenced to three consecutive terms of life imprisonment.7

But in January 2005, following the failure of a litany of post-conviction motions and appeals, retired deputy U.S. Marshal Jim Britt stepped forward, reporting that he had heard lead prosecutor James Blackburn threaten Stoeckley with a first-degree murder indictment if she testified that she and others were present in the MacDonald apartment on the night of the murders. Despite Blackburn’s contrary representations, this threat purportedly caused Stoeckley to testify that, due to amnesia, she could not recall the events that transpired on the night of the murders. Importantly, Stoeckley died in 1983, and the former boyfriend whom she implicated in the murders died in 1982.8

Stoeckley’s Lawyer Testifies

But what of the story Stoeckley could tell about the events of the fatal night? Setting aside the evidentiary issues presented to the U.S. Court of Appeals for the Fourth Circuit, it is sufficient for our purposes to note that the circuit reversed the District Court which had denied a hearing on the Britt/Stoeckley issue. The hearing was eventually held, and on Sept. 20, 2012, following a subpoena from MacDonald’s attorneys, Stoeckley’s court-appointed attorney, Jerry W. Leonard, was ordered to submit a sealed affidavit to the court, setting forth “that which he may testify to regarding his communications with Stoeckley, if so Ordered to testify…”9

Leonard’s affidavit, ultimately filed in open court later that month, describes the privileged conversations he had with the now-deceased Stoeckley after being appointed as her counsel in August 1979.10 The affidavit explains that Stoeckley was essentially placed in Leonard’s custody following her testimony: The court instructed Leonard to ensure her availability to testify if recalled as a witness. According to the affidavit, Leonard and Stoeckley discussed the maximum penalty for murder, and the possibility of a sentence reduction for a perpetrator who identified accomplices.

In their initial discussion, Stoeckley told Leonard that she had been very high on drugs the fatal night, and that her memory was entirely blank for the hours in which the murders occurred. She never mentioned that a prosecutor had threatened her. The next day, however, Stoeckley asked Leonard what he would do if she had actually been at the murder scene. According to his affidavit, Leonard informed Stoeckley that he would continue to help her, but that she had to tell him the truth. Stoeckley then admitted that because of her membership in a certain cult, she was present at MacDonald’s home at the time of the murders. She explained that while doing drugs, some of the cult’s core members had decided to confront MacDonald about discriminating against hard drug users in his work at a drug treatment program.

Although Stoeckley admitted that the murders occurred—”things got out of hand”—she was adamant that she had not hurt anyone and that she had not anticipated any harm to the MacDonald family. Given this account, Leonard and Stoeckley agreed that if called back to the witness stand, Stoeckley would assert the Fifth Amendment—but she was never recalled, and Leonard never heard from her again.11

Requiring Lawyer’s Testimony

Why was the content of this clearly privileged conversation with Leonard’s now-deceased client filed publicly? Simple. Senior District Court Judge James C. Fox, having examined the affidavit, determined that it was indeed necessary to set aside the privilege and direct Leonard’s testimony.12 Given that Fox issued a summary order without citing case support (and since the defense didn’t file a brief in support), we are left to rely on what likely inspired Fox’s decision—footnote 3 in Swidler, which began this article:

Petitioners [the deceased Foster's attorney and his law firm], while opposing wholesale abrogation of the privilege in criminal cases, concede that exceptional circumstances implicating a criminal defendant’s constitutional rights might warrant breaching the privilege.

We do not, however, need to reach this issue, since such exceptional circumstances are not presented here.13

Whereas such exceptional circumstances weren’t presented in Swidler—the “Travelgate” grand jury investigation—they were certainly present in MacDonald, where the defendant had been incarcerated for more than 30 years in an extremely controversial murder case. Probably to his credit, it appears that Leonard never independently volunteered Stoeckley’s account of that night’s events. And although he was repeatedly interviewed by Errol Morris, a writer who wrote often about the MacDonald “injustice,” Leonard never revealed the privileged conversations through that medium.14 In fact, when both sides subpoenaed him to testify, Leonard appeared before the District Court and invoked the privilege.15 That said, Leonard of course complied with Fox’s eventual order and provided the affidavit.

Leonard’s situation following Stoeckley’s 1983 death was anything but enviable. Given the court’s order, he had no choice but to submit the sealed affidavit. Yet in a very real way, Leonard had been caught—at least before the order—in an ethics nightmare: Based on his client’s confidential disclosure, Leonard likely had serious reservations about MacDonald’s guilt. He likely believed that an injustice might indeed result from his silence. As an admitted drug user/cultist, Stoeckley was hardly a pillar of society, whereas MacDonald was a surgeon and a Green Beret. In that sense, it is to Leonard’s credit that he refused to offer his account before being mandated to. Other attorneys may have arguably been less troubled as to how a post-mortem disclosure might impact Stoeckley’s otherwise dubious reputation, particularly before Swidler.

Opinions and Cases

Suppose the MacDonald murders had occurred in New York. To what extent does New York authority address the competing interests in the MacDonald situation? We know that the Supreme Court in Swidler favored the posthumous application of the attorney-client privilege, in part because it determined that a deceased person may retain personal, economic, and reputational interest in confidential communications with his attorney.16 Under Rule 1.6(b)(1) of the New York Rules of Professional Conduct, “[a] lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.” Given that in New York, no death penalty would apply to MacDonald facts, this rule would seemingly not apply should a MacDonald situation arise here. Fortunately, a few New York cases begin to address the problem.

‘Morales v. Portuondo.’ The underlying facts in Morales v. Portuondo, the federal habeas of a Bronx County murder conviction, were these: Following the convictions of his two friends, a guilt-ridden Jesus Fornes informed four people (his Roman Catholic priest, the mother of defendant Montalvo, defendant Morales’ attorney, and Fornes’ own Legal Aid attorney) that he and two others had actually committed the murders, and that the two defendants were innocent.17 At his attorney’s advice, Fornes nonetheless invoked the Fifth Amendment and refused to testify at a post-trial hearing to set aside the verdict.

Fornes’ attorney apparently never disclosed his client’s confidences, and Fornes died without resurfacing. Resulting from the silence of Fornes’ priest and his attorney, two innocent men languished in jail for 13 years.18

It is unclear how the attorney’s advice to Fornes was discovered by Morales’ habeas attorney, who subpoenaed Fornes’ attorney. Ultimately, Judge Denny Chin found that Fornes’ statements to his attorney were admissible, and granted defendant Morales habeas relief in 2001. Although Chin acknowledged that the attorney-client privilege survived Fornes’ death, he nevertheless held that the case’s “remarkable circumstances” required that the privilege “not stand in the way of the truth.”

‘People v. Vespucci.’ By contrast, in People v. Vespucci—a Nassau County case decided one year later—the court held that a client’s confidence to his attorney could not be revealed. In Vespucci, the named defendant and one Dennis Carney were both indicted for the death of Richard Hogan, but Carney’s indictment was dismissed with leave to re-present in 1980 by the court.19 Carney died in 1991. In late 2001, Carney’s attorney, Ed Galison, became aware of the charges against Vespucci and sought the advice of noted Hofstra University ethics professor Roy Simon. Simon encouraged Galison to seek an opinion from the Nassau County Bar Association Ethics Committee.20

Some 11 years after Carney’s death, Galison informed Vespucci’s attorney that he possessed information that could potentially exculpate Vespucci. Galison was firm, however, that although the bar committee had opined in favor of the disclosure, Galison could not reveal his conversations with Carney because they were privileged. Vespucci’s defense attorney petitioned the court to compel Galison to reveal the information and produce any exculpatory notes. After a hearing, the judge held the supposedly exculpatory testimony inadmissible, partly because it was readily available through a witness affidavit that did not suffer from the hearsay problems afflicting Carney’s statements to Galison.21

Setting aside the merits of the court’s hearsay ruling, Vespucci lends significant insight into how an attorney should conduct himself when faced with such a dilemma. Galison was likely correct to obtain and act on the ethics advice of the bar association before airing the confidential information he learned while his client was still alive. In obtaining this advice, Galison avoided complete inaction, and also took steps to avoid prejudice to his client (or his memory) and to the principles underlying the attorney-client privilege. It is noteworthy that Carney committed suicide after murdering two innocent people—his reputation, much like the reputation of Helena Stoeckley in MacDonald, was therefore hardly a serious issue.22

‘State of Arizona v. Macumber.’ Although the court disallowed the allegedly exculpatory evidence in Vespucci, Galison proceeded consistent with the approach approved in State v. Macumber by concurring Arizona Supreme Court Justice William Holohan. In Macumber, a defendant was convicted of two murders, but a third party, since deceased, later admitted to his attorneys that he had actually been the perpetrator.23 The attorneys obtained an informal opinion from the Arizona Bar, which advised that the attorney-client privilege did not prevent their disclosing the information to the defense, the prosecution, and the court.

The trial judge nevertheless ruled the information privileged and inadmissible. While Holohan disagreed with the majority’s affirming the exclusion of the attorneys’ testimony, that evidentiary ruling is not the issue here. What is, however, is Holohan’s definition of the “real problem” in the case as “whether the [attorney-client] privilege can survive the constitutional test of due process.”24

Conclusion

Clearly, a real quandary awaits an attorney possessing evidence that 1) might prove exceptionally helpful to a criminal defendant and 2) can no longer directly prejudice a now-deceased client. On the one hand, the attorney may be reluctant to allow an injustice to occur by sitting silently on evidence that could help exonerate an innocent. On the other, the attorney will not wish to appear too cavalier with (even) a dead client’s confidences. Taken together, the amalgam of MacDonald, Vespucci, Morales, and Macumber suggests that the attorney may wish to postpone making his disclosure until a bar opinion, and perhaps ultimately a court, have sanctioned it: Such a decision is too weighty for an attorney to make relying exclusively on his gut.

As an afterthought, one of the true killer’s confidants in Morales was his priest. The priest held Fornes’ confession in confidence for many years after the confessant’s death. He did so even though it meant that an innocent man would languish in jail for many years for a crime he did not commit. The ethics of the priest’s decision (and the church that later endorsed it), however, we leave to a different sort of article—or, maybe, the coming world—to explore.

Joel Cohen, a former federal and state prosecutor, is a partner at Stroock & Stroock & Lavan and teaches Professional Responsibility as an adjunct professor at Fordham Law School. Yevgenia S. Kleiner is a litigation associate at Stroock.

Endnotes:

1. 118 S. Ct. 2081 (1998).

2. Id. at 2088.

3. In a recent OpEd, the author of Fatal Vision, a book published in 1983 about Dr. MacDonald and the murders, compared MacDonald’s appeals for a new trial with the case of Jarndyce v. Jarndyce from “Bleak House,” stating that just as in the Dickens novel, “the case will have long outlived most of its principals.” Joe McGinnis, “Court Cases That Last Longer Than Some Lives,” N.Y. TIMES, Oct. 6, 2012, at SR5.

4. United States v. MacDonald, 641 F.3d 596, 598 (4th Cir. 2011).

5. See id. at 599; see also MacDonald, 113 S.Ct. 606 (1992); MacDonald, 103 S.Ct. 726 (1983); MacDonald, 102 S.Ct. 1497 (1982); MacDonald, 101 S.Ct. 3004 (1981).

6. MacDonald at 601; Affidavit of Jerry W. Leonard, MacDonald, 5:06-CV-23-F, ¶9 (E.D.N.C. Sept. 24, 2012).

7. MacDonald, 641 F.3d at 601.

8. Id.

9. Order, MacDonald, No. 5:06-CV-23-F, (E.D.N.C. Sept. 20, 2012).

10. Affidavit of Jerry W. Leonard, supra n.6.

11. Id. at ¶¶16-17.

12. Order, supra n.9.

13. Swidler, 118 S.Ct. at 2087, n.3.

14. Interview by author Joel Cohen with Gordon Widenhouse, attorney for MacDonald (Oct. 30, 2012).

15. Order, supra n.9.

16. Swidler, 118 S.Ct. at 2089.

17. Morales v. Portuondo, 154 F.Supp.2d 706, 709-710 (S.D.N.Y. 2001).

18. Id. at 709.

19. People v. Vespucci, 192 Misc.2d 685, 686 (Cty. Ct. Nassau Cty. May 29, 2002).

20. Id.

21. Id. at 687, 694.

22. See id. at 688.

23. Arizona v. Macumber, 544 P.2d 1084, 1086 (AZ Sup. 1976).

24. Id. at 1088.