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' disclosurein 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 clientevery client, even a client fading on his deathbedmay 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 Amendmentbut 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 decisionfootnote 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