Lawyer Talk with Attorney Heather Leonard
Heather Leonard practices law in both the federal and state courts in the State of Alabama. She has handled numerous appeals before the United States Court of Appeals for the Eleventh Circuit. While her practices focuses on the area of labor and employment law, she also handles complex litigation cases and criminal matters. She teaches at numerous seminars, and articles she has written have been published in the Birmingham Bar Association Journal and the Alabama Lawyer. She has appeared several times on National Public Radio’s Marketplace, and has been quoted in the New York Times.
But Did He Do It?
Charles Dickens wrote that “if there were no bad people there would be no good lawyers.” Most people assume that everyone accused of a crime is guilty, and that it is only through a ruthless lawyer that the guilty go free. Without question, there are bad people who do bad things. There are also people who found themselves in the wrong place at the wrong time. They all deserve a defense, and their lawyers must provide it, ethically.
Most criminal defense lawyers, when asked how they defend persons accused of unspeakable acts, respond that their job is to defend the system. Under the American system of law, the accused is presumed innocent until the prosecution proves, beyond a reasonable doubt, that he or she committed the bad acts alleged. In defending the system, a defense lawyer makes sure that evidence, rather than prejudices and assumptions, are used as proof. This insures that fundamental rights are not arbitrarily denied.
The United States Constitution protects individual rights against government encroachment. The Bill of Rights codifies negative rights. It is a list of “thou shall nots” for the government. Key among the “shall nots” are protections against the government depriving persons accused of criminal wrong doing of their liberty without first giving the accused notice of the wrong of which they have been accused and a fair hearing. The Constitution provides that nobody accused of a crime can be forced to give evidence against themselves. This is because the burden of proof lies with the government to prove the wrongdoing, not with the accused to prove his innocence. The Constitution emphasizes that everyone has a right to a defense.
The challenge for the defense lawyer is how to mount the defense. Lawyers are bound by a code of ethics that direct how they do their job. The American Bar Association’s Rules of Professional Conduct provide guidance as to how a lawyer can represent his or her client:
Rule 3.1 – A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Rule 3.3 – (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
In plain English, this means that a lawyer cannot knowingly raise a defense which she or he knows to be frivolous or false. This means not only that a lawyer cannot allow his or her client to lie on the stand, but also that the lawyer cannot allow a witness to give false information. For this reason, some lawyers are cautious in the questions which they ask their clients. If the client reveals to the lawyer that she committed the crime, then the lawyer cannot ethically put on a defense asserting that the accused could not have committed the crime because she had an alibi. The lawyer cannot knowingly raise a false defense or allow a witness, including the accused, to lie to the court.
Yet, truth must be the guiding principle. Without knowing the truth about the facts and circumstances surrounding the alleged crime, a lawyer is flying blind in court, unable to adequately prepare the case and address adverse witnesses and arguments. It is for this very reason, that a defense lawyer must know the answer to the burning question, “but did he do it.” Justice requires that the lawyer get that answer.
I echo Deborah Sharp’s comments above and enjoyed meeting you (Heather), Deborah, and certainly Lee (Mr. Graveyard Shift himself) at Killer Nashville 2009.
I hope all of you can come back this next year so we can get to know you even better.
Clay Stafford
Founder / President, Killer Nashville
Pat – Thank you for taking the time to comment. I think it is rare that anyone enjoys their time in court. Again, the system isn’t perfect, but I have yet to see one better. If we keep our focus on protecting rights, then the system works best. Thank you again for reading my column and commenting.
Thanks for an interesting post. I worked in a small town law office for 20 years and the first thing I learned was to look for “extenuating circumstances.” They were usually there. I don’t recall any of our cases involving a truly evil client, or a random killer.
I avoided if possible serving on juries. I couldn’t help “grading” the lawyers and their presentations. Some were exceptional and some were borderline awful. I pity anyone who gets caught up in the court system.
Pat Browning
Rebecca – thank you so much for your comment, and I agree about Beppie – she’d outsmart all of us!
Corrected post:
Queenofmean – I also subscribe to the belief that it is better for 10 guilty persons to walk free than one innocent person go to prison (that being said, I am also mindful that I have to walk the streets with those 10 guilty persons). Freedom and rights are always at odds with order. The burning question of liberty vs. security is at the heart of the debate as to how the judicial system should operate. The Founders, in my opinion, weighed in on the side of liberty hoping that everyone’s better angels would temper their actions. I am thankful that I (nor anyone to whom I am close) have NOT been on the receiving end of a horrific crime. I cannot imagine what it would be like to experience such a terrifying event. Yet, bearing in mind that those bad consequences could sway my opinion, I still subscribe to a deontological, or means based, philosophy. Rights deserve protection not when we are all in favor of them, but rather, at the times when everyone sees the risk emanating from them. Protections are meaningless only when they are popular. Our system may not be perfect, but I challenge anyone to point to a better one.
Thank you for reading my post and responding!
Heather
Queenofmean – I also subscribe to the belief that it is better for 10 guilty persons to walk free than one innocent person go to prison (that being said, I am also mindful that I have to walk the streets with those 10 guilty persons). Freedom and rights are always at odds with order. The burning question of liberty vs. security is at the heart of the debate as to how the judicial system should operate. The Founders, in my opinion, weighed in on the side of liberty hoping that everyone’s better angels would temper their actions. I am thankful that I (nor anyone to whom I am close) have been on the receiving end of a horrific crime. I cannot imagine what it would be like to experience such a terrifying event. Yet, bearing in mind that those bad consequences could sway my opinion, I still subscribe to a deontological, or means based, philosophy. Rights deserve protection not when we are all in favor of them, but rather, at the times when everyone sees the risk emanating from them. Protections are meaningless only when they are popular. Our system may not be perfect, but I challenge anyone to point to a better one.
Thank you for reading my post and responding!
Heather
Heather – very interesting post. Thanks for the insight. It’s amazing how many people see no problem with circumventing the rights of ‘criminals’. They don’t realize that allowing one person’s rights to be overlooked, they’re risking their own rights.
Thanks, Lee, for having Heather here today.
Heather – great post! I really enjoyed reading it. And Beppie’s too smart to get caught…:)
J.D. and Beppie – thank you so much for commenting. I appreciate you taking the time to read the post. Lee has done such a great job with this site – it is a fantastic resource. I truly appreciate him letting me be a part of it.
Heather
What a fascinating article! In theory I knew all of the above (for a brief period in my miscellaneous career I was a court transcriptionist in Federal Court in Detroit) but it was interesting to see it all and place it in the literary arena (what’s likely, what’s legal, etc. etc.) as well.
If I get caught at the wrong place and time, I sure hope it’s in Alabama and you’re around to defend me!
Beppie
Great post. I take it that asking a defense client about his role in any crime is something that should be handled the way porcupines mate…very carefully?
Gwen and Deborah – thank you for your generous compliments! I am blushing.
Thanks to Lee for asking Heather to guest-blog… Great post, Heather! I have to say when we met (at Killer Nashville, I think?) I didn’t know you were such a fancy, high-caliber lawyer. Now I’ll know where to turn if I ever get busted for criminal wrongdoing in Alabama … or to get the details right in my Mace Bauer Mysteries. Though, somehow I don’t think you’d approve of the sometimes shady line walked in Himmarshee, Fla, by my main character’s lawyer-cousin, Henry Bauer Esq.)
Hope to see you soon on the circuit (the author circuit, not the judicial circuit). BTW, how’s YOUR book coming?
Heather:
What a great and insightful post, and helpful follow-up comments! I look forward to more.
Merissa:
Great comment. With your experience on both sides of the equation, your insight is invaluable. Thank you for reading and commenting!
Heather
Chris – If the client tells the lawyer he/she committed the crime, the lawyer can’t raise arguments which she knows to be untrue. For example, if my client admitted to robbing a bank in Atlanta, I couldn’t put on witnesses who would testify that they saw my client in Dallas at the time of the crime because I would know that their testimony was false. The goal of a trial it to elicit the truth. The word “verdict,” which is what a jury renders, comes from the Latin veredictum, literally means “to say the truth.” For this reason, a lawyer cannot ethically obfuscate the truth.
As a result, a lot of lawyers will remain willfully ignorant of the “big” question to allow for flexibility in the defense.
In my opinion, this can lead to dangerous consequences. I cannot do my job if I do not know what facts and evidence we need to overcome. My job is to make the system work – force the prosecution to prove their case and defend my client’s rights. If I don’t know the truth, I would find it impossible to do my job.
Jean – if an attorney knows his client “did it,” he doesn’t have to turn the case over. He can mount a defense based on forcing the prosecution to prove its case “beyond a reasonable doubt.” The lawyer can put in question the veracity and credibility of the witnesses called by the prosecution, the quality of the evidence, etc. The lawyer is allowed to raise these questions. The lawyer, however, cannot put on a “false” defense – this means the lawyer can argue that the prosecution hasn’t proven its case, so the jury must acquit. The lawyer cannot argue -“Hey, you must acquit because my client was out of the country at the time of the crime and had no opportunity to commit it.”
On the issue of revealing what the attorney knows, the attorney-client privilege is paramount. The rules of evidence recognize that there are certain relationships that work only with open and honest communication (husband-wife; counselor-patient; attorney-client, etc.). For this reason, certain privileges exist to protect those communications. The attorney-client privilege provides that neither a lawyer not client can be compelled to reveal the substance of their communications. If it were any other way, a client would not be open and honest with his/her lawyer.
Due to privilege, an attorney would not/should not disclose to anyone outside of that privilege (i.e. the attorney likely will have conversations with his/her secretary, paralegal, etc. – all of whom are bound by the same privilege) that his client committed the crime. This is why when an attorney withdraws form representation, he/she normally states to the court that they cannot continue due to (a) a breakdown in the relationship; (b) undisclosed ethical reasons; etc. rather than giving the specific reason.
There is an exception to this rule, however. If the lawyer has a reasonable belief that disclosure is necessary to prevent a crime that will result in death/serious bodily injury, the lawyer can break privilege. If my client came to me and said he was planning on killing his wife, I would be obligated to break privilege and disclose his criminal intent to prevent her death. In the gray areas where a lawyer is not sure as to whether a communication to which they feel morally bound to make conforms with the legal ethics rules, the state bar association can give quick and sound advice. When in doubt, call the bar (I always say). A quick word of praise – the Office of General Counsel for the Alabama State Bar is fantastic – they give quick and thoughtful advice to ethical questions. They are on my speed dial!
Thank you both for reading and commenting!
Heather
Hey Heather–
I always operated off of the “it doesn’t matter whether the defendant claims innocence or not” viewpoint. I agree that justice as a whole works only when the government is held to the required constitutional standard.
If they can prove it beyond a reasonable doubt, so be it. If they can’t then they have no business sending the person to jail.
Each side has a part to play. As a prosecutor, attorneys swear to see that justice is served. In that role, I’d marshall the evidence to show beyond a reasonable doubt that the defendant did in fact commit the crime. Win or lose, if I believed the defendant did it, I’d try for a conviction.
As a defense attorney, my role was to force the government to prove the case. It was never about whether the specific client committed the specific crime they were accused of, but about whether the government could meet the standard of proof. As far as putting on false evidence, you’re never going to put the client on the stand, so why ask the question?
I always asked, what are they going to say about you? That way you are prepared for any foreseeable accusations, but aren’t inviting your client to lie to you about whether they did it, which does not prepare you for representing them.
I have been in the sticky situation where a witness I called (not the defendant)lied on the stand about something I knew to be false. We approached the judge, and I informed the judge and opposing attorney of the untruth. It happens, and ethical attorneys deal with it all the time.
I’ve been on both sides of the equation, and honestly, I made a better prosecutor than criminal defense attorney. But I do believe that if the goverment isn’t held to the very high standard by the defense attorneys, then society as a whole suffers for it. I don’t see that asking whether the defendant committed the crime changes the process for the better.
Just my (lengthy) two cents.
Merissa
Heather, So, when an attorney knows that his client “did it” does he then turn the case over to another attorney without revealing what he knows? Does he have a moral obligation to tell what he has learned, or is protecting the guilty person paramount? Would love to know. Jean
Heather,
Excellent clarification! I’ve read several novels in which an attorney tells the client, “Stop–don’t tell me–I don’t want to know any more.” Seemed unethical when I read it, and seems even more so now.
Thanks for blogging–
Chris
Elena:
You are so right. At the time the Bill of Rights to the Constitution was adopted (and hotly debated between the Federalists and Anti-Federalists – I love reading both sets of papers for a good fight!), citizens had a natural distrust of the government after seeing their rights trampled upon. Everyone had just finished a period where the government/the Crown would readily throw people in jail/deprive them of liberty, often for shocking/unconscionable reasons.
While many people feel our legal system favors criminals, it really favors the protection of our rights. The Constitutional prohibitions against certain government acts (no ex post facto laws, presumption of innocence, due process, the right to refuse to incriminate yourself, etc.) were a direct reaction to a system which favored the government over individual rights. Freedom and liberty can be dangerous and risky, but the alternative is far worse.
Thanks for reading and commenting on this post!
Heather
The information on our Constitutional protections really struck me quite differently than in 8th grade when I read it to pass the test. Life for private citizens in those days must have been harrowing when thrown into the contemporary legal system for the writers of the Constitution to have felt the necessity for all that protection. Those weren’t potential problems they were trying to prevent, they were very real problems they were trying to fix.
This is a great article, Heather, and I do hope you’ll treat us to more lawyerly information in the very near future. Again, fascinating information.
Gordon:
Thank you for your kind comment, but I think the kudos belong to Lee.
Heather
Great blog, Heather–really interesting and fact-filled. I’ll recommend it to writer friends.
Again, fun stuff!