The Troubling Case of Leslie Smith

Defense lawyers, I tell potential clients, have only two duties: zealous advocacy and candor toward the tribunal. We're not prosecutors. We have no duty to do justice. But we cannot lie to the court; nor can we sit silently when we know false testimony is offered. Because we serve two masters, duty and candor, there is always a potential for conflict.

Virgnia lawyer Leslie P. Smith appears to have been torn between the two masters. He made the difficult decision to serve one and not the other. The result was his client's life was saved, and another man's was put at risk. In hindsight, I am almost as troubled by Smith's conduct as I was by that of former prosecutor Mike Nifong's.

As reported in today's New York Times, Smith represented a co-defendant, William Jones, in a two defendant murder case.  Jones and another man, Daryl Atkins, were accused of a gun-point robbery and murder. Under Virginia law, only the man who actually pulled the trigger can be sentenced to death.

Smith and his client met with a prosecutor. They were playing the always dangerous, but ubiquitous, snitch game, ratting out a co-defendant in hopes of leniency. During a skull session with a prosecutor, Smith's client gave a version of events inconsistent with the physical evidence. So the prosecutor stopped the tape-recorder and told the defendant his version didn't play; the prosecutor then tutored the defendant on how to give better, more inculpatory, evidence against his co-defendant, which, I presume, Smith's client parroted to judge and jury.

Smith watched this performance and said nothing. It spared his client the death penalty, after all. But he apparently permitted this doctored testimony to be offered against the co-defendant, Mr. Atkins. The result was that Atkins was sentenced to death. Smith's client received a life sentence.

Smith kept this secret for ten years, out of loyalty to his client. But now that he has revealed the truth, a Virgnia court has vacated Atkins' death sentence due to prosecutorial misconduct. The shenanigans at the skull session should have been made known to Atkins' lawyers.

The line in this case is murky, but real. A lawyer cannot knowingly permit false testimony to be offered in a court proceeding. Smith need not have told the court the truth. But he should not have sat silently while something less than truth was presented to the court. When duties conflict the course is clear: a lawyer should move to withdraw, citing an irreconcilable conflict.

This case will serve as fodder for comment for a long, long time. Should tape-recordings of sessions with police and prosecutor be mandatory? Absolutely. When Smith's client was tutored, there was a tape recording. The decision to turn off the tape while Smith's client was tutored to lie should have raised far graver issues than it did. Why not suppression as a remedy when the state wilfully refuses to keep the best evidence of a confession?

The dangers of snitching and harm to third parties is also on display. I, for one, favor doing everything possible to protect a client. I would not hestitate to recommend that a client cooperate with the government if there were no other options. But this case demonstrates what can go wrong. The incentive to lie is powerful. Should there be a rule against the admissiility to snitch testimony? I would favor it.

But all lawyers are supposed to adhere to a duty that prevents them from offering false tetimony. It appears that Smith either offered such testimony or sat silently when it was offered. Our legal system depends on candor by lawyers. Something failed in this case.

The conduct of two lawyers in the case should be reviewed: the prosecutor for coaching a witness to be less than candid and then sitting silently about that fact, and Mr. Smith's for permitting flase testimony to be offered to the court.

Smith can defend by taking what I call the radical existential view toward truth -- I wasn't there and therefore I don't know what happened at the crime scene, anything could be true. Perhaps that is enough.  But I doubt it. Daryl Atkins was nearly killed as a result of potentially false testimony. Smith cannot simply say I did nothing out of loyalty to my client. He also had a loyalty to the truth. When those duties conflict, a lawyer cannot choose one over the other. Smith should have moved to withdraw.

What would have happened had the motion to withdraw been denied? In that instance, his conduct might be excusable. Choosing life over truth is obviously defendable. But I wonder whether a lawyer caught it such a bind can render effective assistance of counsel.

Comments

[markm]

Norm, wouldn't the effect of withdrawing have been merely that Smith's replacement would have stood by while the same false testimony was offered, since he would have been unaware of the falsity?