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).
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