Lawyers in two states recently took the difficult — and unusual — step of breaking confidences to right what they saw as wrongs in controversial murder cases.
In North Carolina, an appellate defender testified in 2007 that his former client — who committed suicide in prison in 2002 — told him two decades earlier that he was the sole killer in a double homicide and that co-defendant, Lee Wayne Hunt, had nothing to do with the crime.
Hunt, who is serving two life sentences, was not freed and a grievance was filed to the state bar against Staples Hughes, the lawyer, who spoke out. Hughes says a committee of the bar found the complaint had no merit.
Most states allow lawyers to reveal confidences to prevent a death, serious bodily harm, or criminal fraud, but only a few have measures that permit them to disclose information to prevent wrongful incarceration, according to Colin Miller, an assistant professor of law at John Marshall Law School in Chicago.
Hughes says he knows some people might disagree with what he did but he believes he was not breaking he law.
"Is there bodily harm in (Hunt) being locked up the rest of his life for something he didn't do?" Hughes asks. "In my moral and ethical universe, I answered that question yes."
Hughes also says while it was agonizing to remain silent so many years, the attorney-client privilege is essential.
"Does it work perfectly all the time?" he asks. "Hell, no. ... But you don't base your general framework for approaching how justice and truth can be determined on the most terrible exceptions."
Hunt's attorney is now pursuing his case before a state inquiry commission that investigates claims of innocence.
In Virginia, a defense lawyer kept quiet for a decade, then finally — with approval from the state bar — disclosed information that alleged the prosecution had coached a former client whose co-defendant was sentenced to death.
After the lawyer's testimony, a judge commuted the death sentence of Daryl Atkins to life in prison. But in February, the judge agreed to a prosecution request to stay the commutation order pending an appeal.
Atkins was at the center of a case that led to the U.S. Supreme Court banning the execution of the mentally retarded.