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
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