POSC 130g 1st Edition Lecture 3 Current Lecture Review of Belge Case Did what was correct legal ethics When one becomes an attorney their job is to represent their client to the best of their abilitymost people have a strong sense of morality There will be times where there will be a conflict between own sense of morality and what the professional role requires Comparisons Scott Peterson California Business and Profession Code It is the duty of an attorney to maintain inviolate the confidence at every peril to himself to preserve the secrets of his client Bernardo case Canada Lawyer Kenneth Murray withheld evidence Prosecuted for obstruction of justice Question How to deal with incriminating evidence Wife and husband killed two women had tapes of it in his fan told his lawyer Lawyer held onto the taps for sixteen months and then contacted the BAR Association about it and he was prosecuted and charger for obstruction of justice He was acquitted after five years had he been convicted he would have faced a ten year legal system How does a lawyer deal with incriminating evidence Inquisitorial system Only answer what is asked Can t maintain the legal process if the clients are afraid to tell the lawyers the truth can t be protected if the truth is not said Perjury Nix vs Whiteside US Supreme Court 1986 Facts Goes to an apartment of Love to get marijuana and there was an argument Whiteside kills Love in an altercation Love apparently told his girlfriend to get his piece and Love approached him but Whiteside stabbed him and killed him During preparation for trial Whiteside asserts If I don t say I saw a gun I m dead He didn t actually see the gun but he owned the gun After the stabbing the victim s family took out the possessions of the things and the police did a half hazard search Robertson was the defense attorney but he didn t have to say he had a gun because it was selfdefense Whiteside said he saw something metallic but Robertson said merely thinking he had a gun and killed him was self defense Robertson couldn t allow him to say something false as that would be perjury Robertson would tell the jury if Whiteside did this Whiteside at the trial takes the stand and he knew Love had a gun and acted in self defense as he thought he was reaching for the gun Whiteside was cross examined and admitted he didn t actually have a job Police did a half hazard search and the family removed everything after the crime Robertson was trying to show the fear Love had asserted but Whiteside had a forty year old sentence with second degree murder The case was appealed and went through Iowa through the state legal system in the Iowa Supreme Court affirmed the statement of the attorney that he couldn t use perjury Then he goes into the district court and petitions for Habius Corpus He is arguing that his sixth amendment right had been violated the right to counsel It goes to the United States Supreme Court Issue Whether the Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial Appeal After jury verdict of 2nd degree murder and 40 year sentence Whiteside appealed Supreme Court of Iowa affirmed The right to counsel does not include right to present perjured testimony Federal court petition for the writ of habeas corpus You have the body Key question whether the lawyer s admonition to Whiteside that he would inform the Court of Whiteside s perjury constitute a threat to violate the attorney s duty to preserve client confidences Even though the defendant was going to commit perjury that doesn t mean he doesn t get his sixth amendment of the right to counsel The US Supreme Court reversed the 8th circuit U S Supreme Court 1 The Court relied on Strickland v Washington which requires showing serious attorney error and prejudice harmless error rule 2 The Court concluded that there is a specific exception from the attorney client privilege for the disclosure of perjury The court said this is required by legal ethics 3 Conclusion A defendant s right to effective counsel was not violated when his attorney used threats to dissuade him fro committing perjury The American Bar Association submitted an amicus curie brief when it is a friend of the court an outside course It is an outside source that is not involved in the case but with permission of the court that has an interest in the outcome Perjury testimony shouldn t be allowed Who should get to decide what the defense is The client or the lawyer In the common law a person is innocent until proven guilty Inquisitorial system Purpose is to find out whether the person is guilty or not What if the lawyer has a suspicion but isn t positive The lawyer is required to keep it in confidence reveal it to the court etc Freedman Trilemma The difficult questions are what a lawyer must should or may do after his client has given testimony he or she does not believe Professor Monroe Friedman Trilemma 1 The lawyer is required to know everything 2 The lawyer is required to keep it in confidence 3 The lawyer is required to reveal it to the court US vs Dunnigan 1993 Defendant has no right to lie 1 Issue whether a defendant can deny charges and if subsequently convicted be given a longer sentence 2 Facts Sharon Dunnigan denied being part of a cocaine ring but was convicted later 3 The US Supreme Court upheld sentencing guidelines that allow enhancements for the obstruction of justice Justice Kennedy concluded it was reasonable to permit a stiffer penalty for the willful presentation of false testimony Questions 1 Who should decide what defense to offer the lawyer or the client 2 Does the attorney s duty to the court to violate the client s right to effective assistance of counsel Why why not 3 How much proof would the lawyer need to know with certainty that his client is lying or planning to lie 4 Is there a violation of the 6th Amendment if the client s attorney doesn t dissuade the client from committing perjury and the jury judge recognizes the falsity Is the truth the only goal of the legal system Would anyone want to live in a society that the only goal is solving crime There must be a balance protecting rights and holding criminals responsible Toyota Product Safety 1 Former Attorney for Toyota Motor Corporation revealed evidence he obtained while in house counsel showing product safety problems 2 Toyota alleged this violated a confidentiality