Guns, fruits, drugs, and documents: a criminal defense lawyer's responsibility for real evidence.

• Author: Gillers, Stephen

INTRODUCTION A. The White House Tapes and the Church Laptop B. Lawyers on the Spot: How the Dilemmas May Arise C. Prior Scholarship I. THE THREE PREMISES: NO HARM TO THE CLIENT, NO HARM TO THE STATE, AND THE RECONCILIATION PREMISE II. FACTUAL VARIATIONS 1N THE SEARCH FOR RULES A. The Source of the Object B. The Nature of the Object and the Legality of Possessing It C. Is There a Foreseeable Proceeding? D. The Evidentiary Value of the Object E. Does the Lawyer Have a Legitimate Reason to Take Possession of the Object? III. THE LEGAL BACKGROUND A. The Constitutional Law B. The Criminal Law 1. Obstruction of justice 2. Receiving stolen property 3. Possession of drugs (and other contraband) C. How the Competing Interests Now Fare in Court 1. When the client is the source of an instrumentality or fruit of a crime or an incriminating document 2. When a location identified by the client is the lawyer's source of an instrumentality or fruit of a crime or an incriminating document 3. When a third party is the lawyer's source for an instrumentality or fruit of a crime or an incriminating document D. Reconciling the Cases (Where Possible) E. Other Authorities 1. The ABA Criminal Justice Standards 2. Restatement of the Law Governing Lawyers 3. D.C. Rule 3.4(a) IV. APPLYING THE THREE PREMISES: TOWARD NEW RULES FOR LAWYERS A. When a Lawyer Has No Legitimate Reason to Take Possession of an Item, She Should Not. If She Does So Anyway, the State Is Entitled to Require Her to Prove the Chain of Custody, even if the Source Is the Client. B. A Lawyer Has No Duty to Take Possession of or Retain an Item to Prevent Its Destruction or Alteration, to Preserve Stolen Property, or to Protect the Public, but if a Lawyer Is Permitted or Encouraged to Do So, She Cannot Then Be Required to Give the Item to the Authorities if Doing So Harms Her Client C. A Lawyer May Take Possession of an Item Temporarily when She Has a Legitimate Need to Test or Inspect It in Order to Effectively Represent Her Client, but Must Then Return It to the Source if Possible Unless Return Is Excused for a Reason Described in Part IV.D D. A Lawyer May Take Possession of and Retain an Item Indefinitely: (1) In Order to Avoid Danger to Others; (2) When the Item Is the Lawful Property of Another and Immediate Return to the Owner Is Not Possible Without Incriminating the Client; (3) If the Item Has Exculpatory Value; and (4) When Return Is Impossible E. When a Lawyer Is Permitted Temporarily or Indefinitely to Take Possession of Real Evidence or to Deliver the Item Anonymously, the State's Interests Can Be Protected Through a "New Investigative Procedure" and a Registry Requirement F. How the New Rules Work." A Concrete Example CONCLUSION: A REPRISE TO RICHARD NIXON AND SOME OF THE CASES INTRODUCTION

1. The White House Tapes and the Church Laptop

   In 2009, after thirty-five years of lingering questions, I went looking for Leonard Garment. Garment had been Richard Nixon's law partner and then a member of his White House staff. (1) I had questions about the White House tapes, surely the most consequential piece of real evidence in all of American history. Once public, the tapes forced Nixon to resign. (2) What advice did Nixon get about his duty to preserve the tapes? Was any thought given to their destruction? Identifying Nixon's options required close reading of criminal statutes and court decisions dealing with such mundane items as guns, drugs, and the fruits of crime. Some information about the advice Nixon received appears in Garment's autobiography (3) and elsewhere. (4) But I still had questions. So I searched for Garment who, as luck would have it, was living a mile from my law school.

   Given the stakes--the political equivalent of a bet-the-company lawsuit to the nth power--I expected that a team of lawyers from a powerful private firm would have tracked down every relevant argument and authority. To my surprise, that team consisted of Garment and one other White House lawyer. (5) They relied on the White House Library's limited collection. They found a 1956 district court decision that upheld an obstruction of justice indictment of a man who allegedly destroyed documents he knew were sought by a sitting grand jury, even though the man had not received a subpoena to appear. (6) Garment then advised Nixon, correctly in my view, that destroying the tapes would probably be a crime.

   "Everyone was aware of the risk of a conspiracy charge," Garment told me. "Some executive branch officials had already been indicted and convicted." If the decision were made to destroy the tapes, he said, the lawyers and other aides would play no part. The President would have to do it alone. But it would not have been easy. The tapes were not digital recordings but rather, Garment explained, "the old acetate reel-to-reel tapes"--and many of them. As it happened, no decision was consciously made. "Events just drifted toward a decision by not deciding," he told me. (7)

   I was prompted to search for Garment because of another case about real evidence more than three decades later. This case ended badly for the lawyer, not the client. A Connecticut church had discovered child pornography on a laptop used by its choirmaster. (8) The church told its lawyer, Philip Russell, that it did not want to report the choirmaster's crime (although the choirmaster did resign). So Russell chose what he likely saw as the only remaining option to protect the church from illegal possession of the images (9) --he destroyed the hard drive. Federal prosecutors indicted Russell on two counts of obstruction of justice, each carrying a twenty-year prison term. What Garment and his colleagues intuitively understood, and what Russell did not seem to appreciate, is that even when a lawyer honestly believes that destruction of potential evidence is lawful, the lawyer should not be the one to do it.

   The harshness of Russell's prosecution and the story of Nixon's White House tapes cemented my decision to try to make sense of court opinions and other authorities that purport to explain how lawyers may or must handle real evidence that implicates a client in criminal conduct. I have learned that it is impossible to make sense of those authorities. Rulings are confusing and inconsistent, ignore constitutional or other rights, impede return of stolen property, and endanger the public.

   I appreciate that judges do not want to authorize defense lawyers to retain an item of incriminating physical evidence when doing so may prevent prosecutorial discovery. Fortunately, the interests of prosecutors, clients, and the public can all be satisfied with the rules discussed in Part IV. In particular, Part IV.E proposes a new registry that will enable law enforcement agencies to discover the identity (if they do not already know it) of any law office that is or has been in possession of physical evidence of a crime. The agencies can then seek to use judicial processes to secure the item and any unprivileged testimony connecting the item to the accused.

2. Lawyers on the Spot: How the Dilemmas May Arise

   A man walks into his lawyer's office, takes a loaded .45 from his pocket, and puts it on the desk. Visibly distressed, he says, "I shot Lenny," and points to the gun. "He's dead." Or maybe the man walks in and says, "I shot Lenny. His body is near the abandoned mill covered with leaves. I tossed the gun in the woods. It's loaded." Or it might happen this way: The man is arrested for homicide. He tells his wife that he hid the gun under a floorboard in the shed behind their home. She brings it to his lawyer. It's loaded.

   What may or must the lawyer in each scene do about the gun? What is a lawyer's responsibility for physical objects--weapons, documents, drugs, contraband, stolen property--that come into her possession and are relevant to a pending or foreseeable court case? What if the item is merely the client's incriminating diary or documentary proof of tax fraud? These questions create serious dilemmas for lawyers. Answers may require us to reconcile as many as seven interests: the client's fight to the loyalty and confidential advice of counsel; the attorney-client privilege; the client's Fifth and Sixth Amendment rights; the lawyer's need to avoid criminal prosecution and professional discipline; the state's interest in prosecuting crime; the fight of the owner of stolen property to its return; and public safety.

   Take the distressed client who brings a loaded gun to his lawyer's office and says he has just used it to kill someone. The lawyer can keep the gun in an office safe, but she may then be prosecuted for concealing evidence or for illegal possession of a firearm and professionally disciplined. She can give the gun to the police, but that may help convict the client of murder because the client's fingerprints are on the gun or because it can be traced to him in other ways. She can first wipe the gun free of prints but she may then be charged with altering or destroying evidence. She can tell the client to return without the gun, but she may then be sending an emotionally distraught person onto the street with a loaded (and possibly unlicensed) firearm. Similar dilemmas confront the lawyer if the client's wife brings her the gun. If instead the client has hidden the gun in the woods, the lawyer can leave it there. But someone may fred it and accidentally or intentionally fire it. Yet if the lawyer retrieves the gun to protect public safety, she risks prosecution if she retains it and incriminating her client if she turns it in.

   A lawyer who confronts one of these situations will fred that the law is burdened with confusion. Rules of ethics in nearly all jurisdictions offer no help. ABA Model Rule 3.4(a), broadly adopted, says that a lawyer "shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A...