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Scott Peterson's Lawyer May Have a Hobson's Choice: Laci's husband could jeopardize own lawyer
FrontpageMagazine.com ^ | Thursday, January 30, 2003 | By Henry Mark Holzer

Posted on 01/30/2003 12:46:28 AM PST by JohnHuang2

Scott Peterson's Lawyer May Have a Hobson's Choice
By Henry Mark Holzer
FrontPageMagazine.com | January 30, 2003


In a story reminiscent of Theodore Dreiser’s classic tale of greed and murder, An American Tragedy (love-struck pregnant girl-friend drowned by social-climbing fiancé), much of the nation has been mesmerized since last Christmas by the disappearance of Laci Peterson, the late-term pregnant wife of Scott Peterson. Though he has not been arrested by the Modesto, California police in connection with Laci’s disappearance, Peterson tops most people’s lists of prime suspects. For many observers, what pushed Peterson to first place was his reported hiring of a criminal defense lawyer.

While Scott Peterson has a serious problem, so, too, may his lawyer.

Let’s examine a hypothetical set of facts – emphasizing that they are only hypothetical – and that, not being privy to the facts of the case, I am not accusing Scott Peterson of any wrongdoing.

Suppose Peterson kills his wife and disposes of her body in such a manner or place that it’s unlikely Laci will ever be found. Then he hires a criminal defense lawyer. Suppose that, in a privileged attorney-client conversation, he reveals to the attorney where Laci’s body is hidden, or how he disposed of it. Soon after, the lawyer sees Laci’s grieving family on television and hears them beg for any information that will, at best, help find Laci alive or, at worst, confirm her death. The lawyer has to know the family desperately needs closure. And knowing he alone is in a position to provide it, his nobler impulse prevails and he picks up the telephone.

Then he hesitates – and for good reason.

Section 6068 (e) of the California Business & Professions Code provides that "It is the duty of an attorney [t]o maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." Clearly, Scott Peterson is the lawyer’s client. Clearly, the lawyer learned what happened to Laci’s body from his client. Clearly, the information Peterson imparted was in confidence and was a secret. Accordingly, it would seem that the lawyer’s lips must remain sealed – despite the ongoing harm to Laci’s family, and despite the continuing inconclusiveness of the police investigation.

When I taught Legal Ethics at Brooklyn Law School, I always put a similar hypothetical to my students – one which, in a Scott Peterson-type situation, raised the related issues of a lawyer’s legal duty to respect the attorney-client privilege and his moral duty to inform the police. Invariably, the students tried to accommodate both the legal constraints on disclosure and informing the police. Some suggested an anonymous telephone call to the authorities. Others would have "somehow" induced or forced their client into revealing the body’s location. Occasionally, a student would argue that if only a "future" crime were involved, it could be reported free of the attorney-client privilege. One person even went so far as to suggest resigning from the Bar, and then blowing the whistle. But through Socratic dialogue, it always became apparent by the end of each class that no disclosure ploy would succeed – and that the defense lawyer would be faced with a stark "either/or" choice of violating professional ethics by talking, or violating his personal moral code by remaining silent.

In the Peterson case, the defense lawyer would have only the bare words of Section 6068(e) to guide him because no California case has ever interpreted that section in this factual context.

A case in New York, however, has come close.

Robert F. Garrow, Jr. was accused of murder and was assigned two lawyers to represent him. During a privileged conversation in connection with that representation, Garrow admitted to three other murders, one committed in a nearby county. Belge, one of Garrow’s defense lawyers, followed up, found and inspected the body, and confirmed that it was the person Garrow had admitted killing.

Belge did not inform the police. But the story came out during Garrow’s murder trial when the defense attempted to use the three other murders their client had told them about to prove Garrow’s insanity. The public was outraged. An article in the Criminal Law Bulletin reported that: "Members of the public were shocked at the apparent callousness of these lawyers, whose conduct was seen as typifying the unhealthy lack of concern of most lawyers with the public interest and with simple decency." A judge would later write about the "hue and cry" in the news media.

Nor could the Bar Association discipline the two defense lawyers since, under the attorney-client privilege, they were prohibited from revealing anything they may have learned in an attorney-client conversation

Doubtless yielding to public pressure, the District Attorney in the county where Belge had found one of the other bodies refused to let Belge off the hook. After digging through the New York statutes, the D.A. came up with two sections of the Public Health Law: one requiring that the dead be afforded a decent burial, the other mandating that anyone knowing of a person’s death without a physician in attendance had to report it to the proper authorities. This was a stretch by the D.A, but a grand jury obligingly indicted Belge. Attorney Belge’s motion to dismiss the indictment on the ground that the attorney-client privilege protected him from non-disclosure was supported by the National Association of Criminal Defense Lawyers in a "friend-of-the-court" brief: "The attorney-client privilege will be effectively destroyed. No defendant will be able to freely discuss the facts of his case with his attorney. No attorney will be able to listen to those facts without being faced with the Hobson’s choice of violating the law or violating his professional code of ethics."

This is the classic rationale for the attorney-client privilege. The scales weigh more heavily in favor of a client’s disclosure to his lawyer than in favor of a lawyer’s disclosure of whatever confidences or secrets he’s been told. This "balancing" formed the core of the New York court’s decision: "Because the discovery of the body . . . would have presented ‘a significant link in a chain of evidence tending to establish his guilt’ . . . Garrow was constitutionally exempt from any statutory requirement to disclose the location of the body. And Attorney Belge, as Garrow’s attorney, was not only equally exempt, but under a positive stricture precluding such disclosure. Garrow, although constitutionally privileged against a requirement of compulsory disclosure, was free to make such a revelation if he chose to do so. Attorney Belge was affirmatively required to withhold disclosure."

It is worth noting that Belge was charged only with violations of a minor public health law. What if Belge – or Scott Peterson’s criminal defense lawyer, in our hypothetical case– had been charged with a more serious offence? According to the Belge case judge:

"In the case at bar we must weigh the importance of the general privilege of confidentiality in the performance of the defendant’s [Belge’s] duties as an attorney, against the inroads of such a privilege, on the fair administration of criminal justice as well as the heart tearing that went on in the victim’s family by reason of their uncertainty as to the whereabouts of [the victim]. In this type situation the Court must balance the rights of the individual against the right of society as a whole. There is no question but Attorney Belge’s failure to bring to the attention of the authorities the whereabouts of [the victim] when he first verified it, prevented bringing Garrow to the immediate bar of justice for this particular murder. This was in a sense, obstruction of justice. This duty, I am sure, loomed large in the mind of Attorney Belge. However, against this was the Fifth Amendment right of his client, Garrow, not to incriminate himself. If the Grand Jury had returned an indictment charging Mr. Belge with obstruction of justice under a proper statute, the work of this Court would have been much more difficult than it is." (Emphasis added).

In these words, we find instruction not only for Scott Peterson’s lawyer, but also for the District Attorney in Modesto, California. The judge in New York’s Belge case was making two important points. First, that just as murder defendant Garrow had a Fifth Amendment constitutional right not to incriminate himself through his lawyer, so, too, did Belge have a legal responsibility not to divulge information he had received in a privileged attorney-client conversation.

The judge’s second point, however, was not as comforting to Belge; nor would it be to Scott Peterson’s criminal defense lawyer:

"There must always be a conflict between the obstruction of the administration of criminal justice and the preservation of the right against self-incrimination which permeates the mind of the attorney as the alter ego of his client. But that is not the situation before this Court. We have the Fifth Amendment right, derived from the constitution, on the one hand, as against the trivia of a pseudo-criminal statute [the Public Health Law]on the other, which has seldom been brought into play. Clearly the latter is completely out of focus when placed alongside the client-attorney privilege." (Emphasis added).

In other words, if Belge had been charged with obstruction of justice, the outcome may have been different.

The same applies to Scott Peterson’s criminal defense lawyer. If – and it is still only an if – Peterson admits to his lawyer that he murdered his wife and discloses where and how he disposed of her body, the lawyer will have a hard choice to make. The California statute admonishes him "to maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." He can remain silent, cloaked in his legal duty – whatever the cost to his personal moral values – and court a charge of obstruction of justice. Or – acting on what should be his personal moral values – he can reveal where Laci’s body was disposed of, in all probability violating his legal duty, and expose himself to professional discipline.

Truly, a Hobson’s choice – but one that comes with the often gray moral waters in which criminal defense lawyers navigate.



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To: Yeti
I updated another thread for that story..pinged ya too..;o)
41 posted on 01/30/2003 6:20:24 AM PST by runningbear
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To: PennsylvaniaMom
John Walsh promises each week that any person calling with information can remain anonymous. What's to stop any attorney with damning information to his client to call in-he could claim he was a hiker, fisherman, whatever fits the scenario, and they found a body by accident? Of course, it would make his defense more difficult, but would at least let a family know their loved one is indeed dead. Guess I answered my own question....
42 posted on 01/30/2003 6:23:52 AM PST by uvular ("Mongo tag in game of life")
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To: hopespringseternal
The defense part of the system is in place to protect the innocent, not the guilty.

Huh? I thought the entire defense part of the system was to protect the rights of those accused, including the guilty. For example, say a shoplifter is caught. His attorney is there to make sure that he does not get the death penalty, that the prosecution does not take advantage of his ignorance of the legal process, and that the accused's rights are not violated... even though he is guilty.

I would think that the prosecutorial part of the system is the part that is in place to protect the innocent public. Yes, the defense part has the exceedingly important job to protect a falsely accused innocent, but that is not a limit.

43 posted on 01/30/2003 6:27:35 AM PST by Teacher317
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To: uvular
But would it make the defense more difficult. If they have him (the body, forensic evidence linking him, etc.) wouldn't that be plea bargain time? "Gee Scotty, if you plead guilty, they'll give you life in prison (hey--you'll be alive to watch your movie of the week, prison interviews with Court TV, etc), but if we go to trial, they are going for the death penalty..." Just my thoughts...I guess that's why I never, ever considered going into law...
44 posted on 01/30/2003 6:31:00 AM PST by PennsylvaniaMom
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To: runningbear
Gracias, RB... I am getting confused, LOL!
45 posted on 01/30/2003 6:37:42 AM PST by Yeti
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To: buccaneer81
He expects us and Laci's family to believe that she was "okay" with his affair with Amber?

Clara Harris was okay with her husband's affair too.

46 posted on 01/30/2003 6:49:46 AM PST by pbear8 ( sed libera nos a malo)
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To: runningbear
....unsolved missing person cases that have plagued investigators in the Northern San Joaquin Valley and foothills since 1972:

On the other hand, it doesn't take much to "plague" Northern San Joaquin "Investigators." They probably couldn't find a manatee in your bathtub, unless it had a loud muffler or was a phoned-in tip from one of their protected informers who was involved in the crime.

47 posted on 01/30/2003 6:51:05 AM PST by Kenny Bunk
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To: Teacher317
His attorney is there to make sure that he does not get the death penalty, that the prosecution does not take advantage of his ignorance of the legal process, and that the accused's rights are not violated... even though he is guilty.

Huh?

I could do a better job refuting my point in a dismissal of your thesis than you do in making it.

You are missing the whole point of the criminal justice system in the first place. We defend the "rights" of the guilty to defend the rights of the innocent. Since we generally don't know the guilty from innocent, we presume innocence. Every defendent is innocent until convicted.

The problem comes in when the "innocent" makes it impossible for the defense attorney to maintain the presumption of innocence. Showing him where the bodies are is one example of this. At that point, the ethical thing to do is resign the case and tell the defendent to shut the hell up, then do the moral thing by making an anonymous call to the police pointing them to the relevant evidence. Academically, this may be a breach of ethics, but only an academic needs to care about it.

48 posted on 01/30/2003 6:53:00 AM PST by hopespringseternal
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To: JohnHuang2
Quote from near the end of the article: He can remain silent, cloaked in his legal duty--and court a charge of obstruction of justice. Or, acting on what should be his personal moral values, he can reveal where Laci's body was disposed of, in all probability violating his legal duty, and expose himself to professional discipline.

It is worth noting that if the lawyer, Belge, who was told the location of a body, had not actually gone out to that location, he might not have been charged with the public health violations. Had he not gone out there to see the body for himself, there is no way he could have been charged with obstruction of justice. (I realize he wasn't charged with obstruction of justice anyway.)

What a client tells a lawyer in confidence should be as though it were never spoken.

I feel extreme sympathy for Laci's family, not even knowing where the bodies of their loved ones lie. But once a person is dead, their spirit, the most important part of them, is no longer a part of their body. Laci's family knows that her spirit, and Connor's spirit, are still as alive as ever.

49 posted on 01/30/2003 6:55:06 AM PST by Devil_Anse
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To: CatoRenasci
I agree with your post.

Another point: how is this lawyer, who has probably just met the defendant long after the occurrence of the crime, to know that the defendant is guilty? Is he supposed to be possessed of greater investigative and cognitive powers than a whole police force? Is the fact that the defendant says it enough to make it true? If the lawyer wasn't there, and wasn't privy to any on-the-spot evidence that it was his client who committed the crime, how is he supposed to have this omniscent certain knowledge of the defendant's guilt?

If a criminal defendant repeatedly tells his lawyer he is innocent, and the lawyer breaks confidence and tells the public, "he is innocent--I have learned that directly from him," the public will laugh in the lawyer's face. If a criminal defendant tells his lawyer he is guilty, and the lawyer breaks confidence and tells the public, "he is guilty--I have learned that directly from him," the public will say, "Do tell! Glad we solved that one! Next!"

The people who are currently keening about the moral bankruptcy of all lawyers now, are the same ones who complain when the press and others offer an opinion such as "oh, he did it--we just know he did it, all the signs point to it." These complainers answer that opinion by screaming, "WHATEVER HAPPENED TO INNOCENT UNTIL PROVEN GUILTY?"

50 posted on 01/30/2003 7:14:01 AM PST by Devil_Anse
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To: CatoRenasci; CaliGirlGodHelpMe
Another point is that the attorney who goes out to the scene and views the body he finds through his client's information, is making himself a witness in the case. This creates a conflict of interest which might be detrimental to his representation of his client.

I think that's one reason why people have private investigators.

The world of the courtroom is a sort of shadow world. The jury is the clean slate (armed with their own life experience) to which the lawyers present all admissible evidence which they can muster. The jury is only to hear, and only to use, the evidence they hear in that sterile environment, the courtroom. Similarly, the lawyers (on both sides) are to work with the evidence as an abstract thing. They are not supposed to be participants in the actual events of the crime or its aftermath.
51 posted on 01/30/2003 7:22:10 AM PST by Devil_Anse
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To: Bluntpoint
I've never yet seen a salesman of any experience have a single moment of embarrassment.
52 posted on 01/30/2003 7:23:31 AM PST by Devil_Anse
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To: shezza
Lawyers are not required to do ANYTHING except protect their client at all cost--not uphold the law, not to protect the innocent, not to serve justice, not to defend the Constitution, not to even do what is right and decent and honest.

So why do they give lawyers an oath which contains these things when they admit them to the bar?

53 posted on 01/30/2003 7:26:49 AM PST by Devil_Anse
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To: runningbear
Police believe the disappearances of Peterson and Miller were the result of foul play

Rebekah Miller disappeared less than 1 mile from the Peterson home just 2 months prior.

54 posted on 01/30/2003 7:37:55 AM PST by Rheo (Scott probably did it..but hey, I'm open to possibilities.)
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To: hopespringseternal
Your post is right on. One thing that jumped out at me is your statement: Since we generally don't know the guilty from the innocent, we presume innocence.

Exactly--we generally don't know.

As for your scenario about the lawyer, being told by the client where the bodies are, resigning, that is also a good suggestion. As you said, he could then call in the information to the police.

Of course, if the former client finds out it was his ex-attorney who gave incriminating information about the ex-client to the police, the ex-client will sue the attorney for damages if he is convicted. But what the heck, what's a little ol' lawsuit that will probably result in monetary loss for the attorney? At least the attorney has the satisfaction of knowing he has done the right thing.

Being satisfied that you have done the right thing is worth more than any money. I just wish more contractors, salesmen, credit card companies, telemarketers, politicians, zoning board members, storekeepers, insurance adjustors, stockbrokers, bankers, cable companies, utility companies, HMO's, postal workers, and other persons would take that to heart.

55 posted on 01/30/2003 7:43:01 AM PST by Devil_Anse
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To: Devil_Anse
And auto mechanics. I'd also like to see more auto mechanics take that to heart.
56 posted on 01/30/2003 7:51:35 AM PST by Devil_Anse
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To: Devil_Anse; All
And it can be illuminating to ponder that even your defense lawyer is an officer of the court, and so obliged to comport himself in an appropriate manner.

In the Westerfild trial, a large volume of evidence was left unanalyzed by the police, allegedly because of time constraints. But when Dusek noticed the pattern of pictures of police wearing orange in the photos Feldman was submitting to the court, he was able to get on the phone and have the police analyze the fibers of everything orange that was owned or possessed by all LEO associated with the case in a few days.

To me, this demonstrated an manifest collusion between the prosecutors and the police to selectively analyze or ignore evidence, in service of the goals of the prosecution in the case, and to decieve the court as to the reasons for the unavailability of some evidence. Collusion, and conspiracy to obstruct justice, whether Westerfield did it or not.

So, let me pose this question to this thoughtful group: How do a prosecutor's legal ethics and obligations compare to a defense lawyer's ethics and obligations?

57 posted on 01/30/2003 7:55:54 AM PST by Yeti
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To: CaliGirlGodHelpMe
"That's terrible. But there are civil AND criminal remedies for such unethical stunts."

Empty remedies (Rule 11 and others).
58 posted on 01/30/2003 7:59:29 AM PST by Bluntpoint
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To: CaliGirlGodHelpMe
"Providing a vigorous defense of the guilty, as well as the innocent, serves the good of all, even though it may not seem that way at times. That's just mho."

Problem: Many lawyers cannot morally tell the difference between a "vigorous" defense and a "frivilous" defense.

59 posted on 01/30/2003 8:03:48 AM PST by Bluntpoint
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To: Devil_Anse
Of course, if the former client finds out it was his ex-attorney who gave incriminating information about the ex-client to the police, the ex-client will sue the attorney for damages if he is convicted.

That is a might big if.

Here's mine:
If the attorney in question can't handle an anonymous telephone call without giving himself away, the money won't be his long anyway.

60 posted on 01/30/2003 8:24:03 AM PST by hopespringseternal
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