High Court Expected to Clarify Criminal Defense Ethics

A week before he was to be tried for murder in Iowa, Emmanuel Charles Whiteside told his lawyer that he wanted to bolster his claim of self-defense by testifying that he had seen something “metallic” in the hand of the man he was accused of stabbing to death in a fight over drugs. “If I don’t say I saw a gun,” the defendant explained, “I’m dead.”

The lawyer, Gary L. Robinson of Cedar Rapids, insisted that Whiteside tell the truth--and warned that if he did not, he would tell the judge that his client was committing perjury and would seek to withdraw from the case. Moreover, the attorney said, he himself could be called as a witness against Whiteside to impeach any perjured testimony.

Whiteside chose not to say at his trial that he had seen a gun, and he was convicted of second-degree murder and sentenced to 40 years in prison. A federal appeals court overturned the conviction, however, finding that the lawyer’s threat had violated Whiteside’s right to effective assistance of counsel.

Defense Lawyer’s Dilemma

Now, the case has come before the Supreme Court in a classic collision between a lawyer’s obligation to make the best defense for his client and his equally important duty to help the trial judge or jury learn the truth. The justices’ decision, expected to come by next summer, could provide important new ethical guidelines for lawyers throughout the country.

Iowa officials, backed by attorneys general from 37 states, are asking the justices to overturn the lower court’s ruling and declare that Whiteside’s rights were not violated simply because his lawyer prevented him from lying on the witness stand.

“The problem the defendant had was not that he had a less-than-zealous attorney,” Brent R. Appel, Iowa’s deputy attorney general, said in oral argument recently before the court. “It’s that the prosecution had an airtight case--and that’s not grounds for reversal of a conviction.”

On the other side, Patrick Reilly Grady, a Cedar Rapids attorney representing Whiteside in the case before the Supreme Court (Nix vs. Whiteside, 84-1321), emphasized the need for the client to be able to confide in his lawyer from the outset so that the lawyer could properly advise and represent his client at trial.

Question of Confidence

If the lawyer could not assure full confidentiality, Grady said, “the attorney is not going to have the benefit of full disclosure (from the client)--and be able to dissuade the client--if, in fact, there is some type of false testimony coming up.”

The National Assn. of Criminal Defense Lawyers, entering the case as a “friend of the court,” agrees that a lawyer should urge his client to tell the truth and should be free to withdraw from the case if he lies.

The defense lawyers urge, however, that attorneys who withdraw should be prohibited from revealing why they withdraw. If they remain in the case, the defense lawyers say, they must be permitted to put the client on the stand, ask questions and argue before the jury without giving any indication that the client is lying.

Doing anything less for a client, the association contends, would give an unmistakable signal that the defendant is committing perjury, and thus place the lawyer in the position of implicating his client in one crime while trying to defend him on another.

Standards Are Vague

The ethical standards that govern lawyers in such situations are sometimes vague and vary from state to state. Some states say that an attorney must reveal a client’s intention to commit perjury; others say that, while an attorney should withdraw from such a case, he need not tell a judge his reason. State ethical codes that allow or require attorneys to warn the court when their clients lie could be jeopardized if the justices rule in favor of Whiteside.

In California, lawyers must urge clients not to commit perjury and must withdraw from the case if a client refuses such advice, according to a spokesman for the state Bar Assn. If the client lies on the stand, though, the lawyer is not required to inform the court.

The American Bar Assn., in a “friend of the court” brief, notes that both the ABA’s Model Rules of Professional Conduct and Iowa’s Code of Professional Responsibility say that lawyers should not participate in the presentation of false testimony. The ABA argues that such a prohibition does not infringe on the lawyer’s duty of loyalty to a client or the client’s right to effective assistance of counsel.

Basis of Reversal

The three-judge federal appellate panel in St. Louis that reviewed Whiteside’s appeal of his conviction last year said it was not concerned so much with ethics as with constitutional rights. The attorney went so far in his attempt to avoid deceiving the court, the panel said, that he became “an adversary of his own client,” denying him effective assistance.

The state of Iowa asked for a reconsideration of the ruling, but the full nine-member appeals court voted 5 to 4 against a rehearing. In a brief order, Circuit Judge Theodore McMillian emphasized that the panel’s opinion “does not create a right to commit perjury.”

In oral arguments before them, the Supreme Court justices displayed little enthusiasm for the appellate court’s ruling.

Attorney Grady, representing Whiteside, argued that lawyer Robinson’s threat to expose any lies undermined his duty to represent his client zealously, and constituted a “complete deprivation” of the defendant’s right to effective counsel.

Justice William H. Rehnquist said, however, that he could see no difference between an attorney concealing a client’s plan to commit perjury and failure to reveal a client’s intention to bribe or kill a witness.

Chief Justice’s View

Chief Justice Warren E. Burger concurred: “The right to testify does not mean a right to testify falsely. The lawyer was urging him not to commit a crime. Is that any different from threatening to kill an eyewitness and the lawyer warning him not to?”

Justice Thurgood Marshall, who is usually sympathetic to the concerns of defendants, said that a lawyer could be disbarred for failing to divulge that his client had committed perjury.

“I don’t know of anything worse for a lawyer to do than produce perjury,” Marshall said. “He’s suborning it--and it’s a crime to suborn perjury.”