The Supreme Court, in deciding Nix v. Whiteside this term, could, as the American Bar Association Journal says, "change profoundly the lawyer-client relationship in all criminal matters."
Emmanuel Charles Whiteside had been charged with first-degree murder in Iowa. The defendant claimed self-defense. He thought the victim had a gun. As the trial neared, Whiteside told his chief defense counsel, Gary Robinson, that when he got up on the stand, he was going to say that he had actually seen a gun. "If I don't say I saw a gun," Whiteside allegedly said, "I'm dead."
On the basis of his own investigation, Whiteside's attorney was convinced that such testimony would be perjured. Robinson said that to his client and added that if Whiteside insisted on going ahead with the story, he would resign the case, tell the trial judge what was going on and would "probably be allowed to impeach (Whiteside's) testimony." Presumably in open court.
Whiteside, on reflection, decided not to testify that he had seen a gun. Instead, he said he had "most definitely thought" there was a gun in the victim's hand. Accordingly, Robinson did not report his client to the judge. Whiteside was convicted of second-degree murder and sentenced to 40 years.
On further reflection, Whiteside went back to court with the charge that Gary Robinson had denied him his Sixth Amendment right to effective counsel by forcing him, through his threats, to change his testimony. Whiteside wants a new trial, with a lawyer who won't be his adversary.
The Iowa Supreme Court, in affirming the conviction, commended Robinson's ethics. So did a federal district judge. But a three-judge panel of the Eighth Circuit Court of Appeals found that Robinson had damaged Whiteside's Sixth Amendment rights by ceasing "to serve as a zealous advocate of (Whiteside's) interests." A new trial was ordered. By a 5-4 vote, the full Eighth Circuit Court of Appeals also agreed that Robinson had done his client wrong.
Writing for the majority, Judge Theodore McMillian said that "our opinion does not create a right to commit perjury. . . . we hold only that a lawyer who has a firm factual basis for believing that his or her client is about to commit perjury, because of confidential communications the client has made to the lawyer, may not disclose (or threaten to disclose) the content of those communications to the trier of fact, in the present case the jury."
That seems to mean that while no one has the right to commit perjury, a lawyer has the right to remain silent although he knows his client is perjuring himself.
Many defense attorneys would agree with Judge McMillian. The more a lawyer knows about a case, they say, the more effectively he can defend his client. But the client will not disclose all there is to know unless he can be sure he will not be betrayed. Furthermore, a lawyer who knows all will also know more certainly when a client intends to perjure himself and can then try his best to persuade the client not to lie. Some lawyers tell me they are very good at talking clients out of perjury.
In those cases when the client persists in his determination to lie, his attorney -- so many defense lawyers argue -- must go along with his perjury according to the Sixth Amendment. "My job as an officer of the court," a prominent criminal lawyer assures me, "is to protect my client's constitutional rights, not society."
I asked three widely experienced defense lawyers what they would do if they knew a client's perjury would result in the execution of someone accused of a crime the client had committed. All said they would break confidentiality; two added they would then resign from the practice of law because they had violated so fundamental a trust. The third would continue practicing law because "it was the right decision for me to make, and if potential clients doubted me from then on, they wouldn't have to retain me."
Whatever the Supreme Court decides, perjury in court will not end, but thinking about clients they know lied under oath may force lawyers to expand their sense of ethics. If an innocent soul, for instance, has to go to jail for 10 years because of a client's perjury, will the partly responsible lawyer provide pro bono legal help to the convict?