The law is one thing, common sense another, but we like to think of the two of them as living together in harmony, each the other's biggest supporter. When the relationship breaks down and the law moves out, most of us should have no trouble taking sides. John Conroy (on WBEZ) and Maurice Possley (in the Tribune) recently reported on two lawyers, Dale Coventry and Jamie Kunz, who have known since 1982 that an innocent man was behind bars for a murder their own client committed. The reporters explained the legal reason for this travesty: the absolutism of the client-attorney privilege, which guarantees that anything a client tells his lawyers will be kept in confidence forever. That reason didn't satisfy me, and it didn't satisfy the dozens of readers who responded online. Here's a typical comment posted to the Tribune's Web site: "It's time we get real justice in the USA, instead of the lawyers games."
A code of conduct may typically make more sense to the men and women who stake their honor on it than to the rest of us, who only see its consequences. Journalists have their own code of silence, the reporter's privilege, and it impresses us far more than it does the federal courts. But the courts have left the client-attorney privilege pretty much unscathed—it is, after all, the law's own. Informed of this grave miscarriage of justice, Coventry and Kunz, and two other lawyers, Andrea Lyon and Marc Miller, felt they could do nothing more for the falsely accused man than file away a statement that one day—26 years later, as it turned out—might free him.
On March 17, 1982, they signed a notarized affidavit that said: "I have obtained information through privileged sources that a man named Alton Logan who was charged with the fatal shooting of Lloyd Wickliffe at on or about 11 Jan. 82 is in fact not responsible for that shooting that in fact another person was responsible." Coventry put the affidavit in a metal box and put the can away. They made no copies.
Though sloppily written, the affidavit was carefully constructed. "It mentions Logan by name and it's painstakingly detailed on the crime we're talking about," says Kunz today. But as for the person whom the signers believed should have been charged with the crime, it merely hints. "It was sort of like playing an ethical striptease," says Kunz. Just putting anything in writing at all "was a risky thing to do," he says. "If the affidavit had fallen into the wrong hands it could get people in trouble, and any hands but ours would be the wrong hands. Even our mothers'. [But] it's pretty clear who we were talking about. 'Information from privileged sources' means somebody told us and that somebody can only be a client." Who was a client at the time? The notorious Andrew Wilson.
Coventry and Kunz were members of the public defender's office's homicide task force representing Wilson in the murders of police officers William Fahey and Richard O'Brien. Those murders took place on February 9, 1982. Marc Miller, another task force member, represented Edgar Hope. Hope was accused of shooting to death a police officer on a CTA bus on East 79th Street on February 5, and also accused of being one of two armed men who staged a holdup at a McDonald's on South Halsted on January 11. During that robbery security guard Lloyd Wickliffe was killed by a shotgun blast and another guard was wounded. A gun taken from Hope when he was arrested for the CTA killing was traced to the wounded McDonald's security guard.
Three witnesses eventually would testify in court that they saw Alton Logan kill Wickliffe with a shotgun at the McDonald's. But Miller says Hope gave him a "direct unequivocal order" to tell Logan's attorney that Logan had nothing to do with it. Hope didn't even know Logan. Miller adds, "He also told me to verify that Andrew Wilson, nicknamed 'Gino,' was his right-hand man whenever Edgar did anything contrary to the law, and everyone in the 'hood knew that."
Jack Rimland was Logan's attorney. He was a former state's attorney, and Miller didn't know and didn't trust him. "Where we don't know a private attorney," says Miller, speaking for the public defender's office, "we keep our guard up high." Weeks went by before Miller said anything to Rimland, but he passed along what he knew to his colleagues Coventry and Kunz almost immediately.
They asked their client Wilson: Was that you at the McDonald's? He allowed that it was, but they were bound by legal ethics, the attorney-client privilege, not to tell anyone. The lawyers say Wilson's one concession—and we have to take their word for this—was to say it would be OK to reveal the truth after Wilson died.
The affidavit was their solution. "We all knew something terrible was going on here and we didn't know what to do about it," says Kunz. "But we wanted to make a time-stamped declaration against a subsequent claim that 'you guys are just making it up now.'" Coventry, Kunz, and Miller all signed.
Andrea Lyon, today the director of the DePaul Center for Justice in Capital Cases and in 1982 a member of the public defender's homicide task force, notarized the affidavit. A notary doesn't have to read the document she's notarizing, but Lyon not only read and understood the affidavit, to the best of her recollection she wrote it. She says she'd written motions for Coventry and Kunz on Wilson's behalf and considered him to be, as a practical matter, her client too. She felt just as bound to silence as her colleagues.
"I never spoke about it once, ever," Lyon says today. But there was talk. Coventry says, "Somebody shot off their mouth and it sure as shit wasn't me. People said 'I hear you have a document' and I'd say 'I don't know what you mean.'" If he died before Wilson, says Coventry, his daughter, an attorney, would find the affidavit and decipher it. He didn't even tell even her it existed.
Kunz spoke about it—sort of. "I talked to, oh, probably 500 people in the course of these years—that's an exaggeration—at least to say I know of a case where a guy's serving a natural life sentence for a crime he didn't do and the reason I know is that my client did it and told me he did it, and I can't talk about it. I've been fairly indiscreet about that, moved mostly by self-pity, and besides, it's a cracking good story. Coventry swears up and down he didn't [talk], and I believe him. Put the blame on me, I'll take it."
The affidavit wasn't the only thing linking Wilson to the killing of Wickliffe. Police hunting down Wilson after Fahey and O'Brien were murdered came across a shotgun that according to a ballistics test fired a shell recovered from the McDonald's robbery. Logan's attorney, Jack Rimland, tried to introduce the shotgun into evidence and wasn't allowed to.
Miller is almost certain that he'd signed the affidavit by the time he finally talked to Rimland. "I told him, 'You represent an innocent man and if I can help you in any way, I will.'" In any way but one, that is. "He said, 'I have to talk to Edgar [Hope],' and I said, 'Jack, you know I can't let you do that.'" Even while he was insisting on Logan's innocence, Hope wasn't admitting to the McDonald's job himself, and Miller didn't want Hope incriminating himself. "One time I was interviewing my client down in the basement of the county jail," Rimland recalls, "and Hope walked past us, and he stopped just outside the room and said into the room, 'When you get through, there's something I'd like to tell you.' I'm thinking, 'OK, here it is. He's finally going to tell me.'" But when Rimland tracked Hope down a few minutes later, Miller told his client to keep quiet.
Alton Logan is still trying to get out of prison. His present lawyer, public defender Harold Winston, knew nothing about the affidavit, but he'd heard rumors that Kunz and Coventry had learned something from Wilson that would help Logan's case. On November 29 Winston picked up a Reader and encountered, on the front page, a story by John Conroy announcing Wilson's death. "He will long be remembered," wrote Conroy, "not only for his crime but for his pivotal role in what followed—the exposure of torture within the police department."
Winston's first thought was "I have to call Kunz and Coventry."
By coincidence, Kunz called him first, about something else. "He didn't know the answer to the question I had," says Kunz, "but he said 'I'm glad you called. Andrew Wilson has died.'" Kunz was soon on the phone with Coventry, who'd also heard the news. Coventry got the affidavit out and told Kunz he was holding it.
"What's it say?" asked Kunz.
"It's in a sealed envelope," said Coventry.
"Open it!" said Kunz, and Coventry did.
On January 11, exactly 26 years after Wickliffe was gunned down at the McDonald's, Judge James Schreier ruled that the affidavit could be revealed in court, but he has yet to rule on whether it and the lawyers' testimony about it will be admissible as evidence.
The four lawyers all say that if Logan had been sentenced to death they would have violated the attorney-client privilege to save his life. "I would have been prepared to lose my license," says Kunz. "I wasn't going to let him be executed. It would have been an ethical lapse, but the execution I couldn't allow to happen." An ethical lapse?
Coventry says, "None of this stuff is crystal clear. We were going to do something else [besides the affidavit] if he was facing death, but we didn't know what. It was a really tough call." Lyon tells me that "of course" she'd have acted to prevent Logan's execution, though she doesn't know how. "[Death] would have been much, much worse. There's a difference—even though it's awful that Logan has been in prison all this time for something he didn't do—there's something different between that and sanctioning his murder by the state by remaining silent."
Says Miller, "It was a gentleman's agreement. We weren't going to let Logan go to the chair. But he was sentenced to life, not death. And reasoning from the premise that the attorney-client privilege is a cornerstone of American jurisprudence, the lawyers concluded that their duty was to honor it. "From a legal ethics perception," says Lyon, "it's not a hard question. It's not a comfortable question, but it's not a hard question."
Responsibility for Logan's imprisonment certainly doesn't begin with these lawyers. Kunz says more than a year went by before the police, answering a subpoena for documents, revealed the link between the recovered shotgun and the McDonald's job. "When we talked to Wilson and he said he'd done it, we believed him," says Kunz, "but we didn't know that corroborative evidence existed." Coventry asks, "Who was Edgar Hope's [regular] partner? Andrew Wilson. Who had the shotgun? Who'd killed the cops?" The answers—Wilson and Wilson.
"They hated Wilson," says Coventry. "They would have gone after him except for the fact they'd already charged somebody else [Logan and Hope] and they didn't want to jeopardize that case."
Lyon reminds me that the prosecutors in the McDonald's trial were Scott Arthur and Ray Garza, who were both singled out by Possley and Ken Armstrong in a 1999 Tribune series on prosecutorial misconduct. (Arthur had been the prosecutor in the infamous Ford Heights 4 case.) The Tribune pointed out that Hope eventually had to be tried again for the CTA murder (he'd been sentenced to death) because the first time around Arthur "improperly excluded African-Americans from the jury." The paper didn't mention it, but a complaint of prosecutorial misconduct also got Logan a second trial for the McDonald's murder.
Consider the possibility that the four lawyers on the affidavit weren't the only ones keeping the secret. As the police torture scandal deepened, did some police officer or state's attorney from the 1982 investigations recall the shotgun evidence against Wilson? Pinning Wickliffe's murder on Wilson would have been a way of saying to the public, "The guy these reformers are tying their can to is even dirtier than you thought, and the cops couldn't have done much of a job torturing him if there was another murder he didn't confess to." But two other guys were already in prison for the McDonald's killing. Better leave that one alone.
The lawyers' decision to keep their client's secret was based on the premise that the attorney-client privilege must be defended at all costs. What if we start with a different premise: imprisoning an innocent man is categorically wrong, and maintaining silence when you could correct that evil is wrong. Not a crime—the law not only condones the secret the lawyers kept but compels it. But a sin. Had Logan been condemned to die, it would have been a wrong too great for the lawyers to bear. Life in prison was somehow different. "Once he got natural life instead of death," says Kunz, "I still brooded about it but I wasn't going to do anything about it, because—well, I'm not sure why. If you put this to me as a hypothetical question, I could have argued both sides for hours. It wasn't hypothetical, it was real, and my gut said you can't let him die. To do something when Alton Logan was serving natural life would have been to submit my client [Wilson] to prosecution for a capital offense. I wasn't going to do that. But it's not a question I can answer, why I can live with natural life and not with execution."
"It's still a very thought-provoking, stomach-churning matter for me," says Miller. "I have trouble sleeping. How do you prevent it from recurring, with the canons of ethics written the way they are?"
Everyone knows the law's imperfect, but an imperfection that lets Alton Logan rot in prison when the truth would set him free is a profound flaw. It wouldn't have been permitted if he'd been on death row and forgive me for thinking it wouldn't have been permitted if he'd been somebody's cousin or frat brother. "His life meant more to me than my license. I know that," says Kunz. "On the other hand, there are a lot of clients I've subsequently represented who'd be sorry if I didn't represent them. So I'm glad I kept my license."
Legal immunity exists for other circumstances—might some sort of immunity be fashioned for this one? I don't know. I do believe the public's naive, untutored response to Possley's article was the healthy response—to be appalled.
For more see Mike Miner's blog News Bites at chicagoreader.com.