The Legal Ethics of Real Evidence: of Child Porn on the Choirmaster's Computer and Bloody Knives Under the Stairs

• Publication year: 2021

THE LEGAL ETHICS OF REAL EVIDENCE: OF CHILD PORN ON THE CHOIRMASTER'S COMPUTER AND BLOODY KNIVES UNDER THE STAIRS

Gregory C. Sisk(fn*)

Abstract: With little guidance from the Model Rules of Professional Conduct and continuing confusion on professional obligations, questions about engagement with real evidence continue to bedevil criminal defense lawyers, incite prosecutors, generate disputes, and attract judicial attention.

Where should we draw that line between what is demanded by the professional duties of zealous advocacy and client confidentiality and what constitutes obstruction of justice? When may a document or object that could conceivably be relevant in some future investigation or proceeding be destroyed, altered, or removed? May a criminal defense lawyer take possession of evidence of a crime for purposes of analysis, even if forensic characteristics are altered? What should the lawyer do with real evidence afterward? May the lawyer ever retain real evidence without being accused of impeding access? May the lawyer return evidence to where it was found or to the person who delivered it? What advice should the lawyer give to the possessor? And what of the problem of material that may not merely be evidence but also may constitute contraband?

This Article critically examines the law of real evidence under the search light of professional responsibility, attorney-client confidentiality, and the constitutional rights of criminal defendants.

INTRODUCTION ................................................................................ 821

I. THE LAWYER'S GENERAL ETHICAL DUTY WITH RESPECT TO ACCESS TO EVIDENCE ................................... 826

II. WHEN DOES AN ITEM BECOME REAL EVIDENCE? THE LAW ON THE DUTY TO PRESERVE ............................. 828

A. A Summary of State Laws on Obstruction of Justice ......... 828

B. The Traditional Federal Approach to Obstruction of Justice: §§ 1503 and 1512 .................................................. 830

C. Anticipatory Obstruction: Sarbanes-Oxley § 1519 ............ 832

1. Removing the Direct Link to a Proceeding or Investigation in § 1519 ................................................. 832

2. Reasonable Anticipation Integrated into Mens Rea for § 1519 ..................................................................... 833

3. Recent Decisions on Anticipation of an Investigation Under § 1519 ................................................................ 835

D. Safe Harbor for Legal Representation: Encouraging Zealous Representation ...................................................... 839

E. Destroying Contraband That Is Not Evidence to a Reasonably Anticipated Investigation or Official Proceeding .......................................................................... 840

III. WHEN DOES AN ITEM BECOME REAL EVIDENCE? A CASE ILLUSTRATION .............................................................. 842

A. The Case of the Child Porn on the Choirmaster's Computer (United States v. Russell) .................................. 842

1. The Choirmaster at Christ Church and Suspected Child Pornography on His Computer ........................... 842

2. The Church Dismisses the Choirmaster, and the Church Lawyer Destroys the Computer Hard-Drive .... 844

3. The FBI Investigation and Prosecution of the Choirmaster .................................................................. 846

4. The Indictment of the Church Lawyer and the Motions to Dismiss ....................................................... 847

5. The Court's Ruling on the Motions to Dismiss ............ 849

6. The Church Lawyer Pleads Guilty to a Lesser Offense ......................................................................... 850

B. Lessons Learned? ............................................................... 851

1. Does the Identity of the Destroyer Matter? .................. 851

2. Special Rule for Child Pornography? ........................... 853

3. Poor Professional Judgment? ........................................ 854

4. An Alternative Hypothetical: The Remorseful Client .. 857

5. Encouraging Zealous Advocacy and Discouraging Prosecutorial Overreach ............................................... 859

IV. HOW MAY THE LAWYER ENGAGE WITH REAL EVIDENCE? THE LAW ON OBSERVATION AND EXAMINATION ......................................................................... 861

A. Defense Lawyer Observing Evidence Without Taking Possession ........................................................................... 861

B. Defense Lawyer Taking Possession of Evidence for Examination ........................................................................ 862

1. Defense Lawyer's Right to Examine Evidence ............ 862

2. Disposition of Evidence by Defense Lawyer After Examination .................................................................. 867

3. Preserving Confidentiality if Defense Lawyer Delivers Evidence to Law Enforcement ....................... 872

C. Evidence Delivered to Defense Lawyer ............................. 874

D. The Tricky Problem of Contraband .................................... 878

E. Defense Lawyer's Retention of Evidence with Contingent Notice to Law Enforcement (and the Gillers Proposal for a Registry for Real Potential Evidence) ......... 881

V. HOW MAY THE LAWYER ENGAGE WITH REAL EVIDENCE? A CASE ILLUSTRATION ................................... 886

A. The Case of the Bloody Knife Under the Stairs (Wemark v. State) ............................................................... 886

1. The Death of Melissa Wemark and the Arrest of Robert Wemark ............................................................. 886

2. The Search of Robert Wemark's Residence ................. 888

3. Robert Wemark Tells His Lawyers the Location of the Knife and Is Advised to Disclose the Location ...... 888

4. The Murder Trial and Guilty Verdict ........................... 890

5. The Iowa Supreme Court's Ruling on the Application for Post-Conviction Relief ........................ 892

B. Lessons Learned? ............................................................... 893

1. Preserving Confidentiality of Location of Evidence .... 893

2. Doubts About the Lawyer's Duties Regarding Disposition of Real Evidence After Examination ........ 895

3. The Danger to Effective Assistance of Counsel Posed by Uncertainty on the Ethics and Law of Real Evidence ....................................................................... 897

CONCLUSION .................................................................................... 898

INTRODUCTION

"Do the right thing." As a directive to a person who knowingly walks off the straight and narrow path, the aphorism may well serve as encouragement to get back on course. By reminding the actor of the highest ideals, she may recover the moral strength to steer away from selfish and base pursuits. When a person's mind is clouded-not by uncertainty as to what constitutes "the right" but by temptations of the wrong or fear of the temporal consequences for bravely pursuing the path of righteousness-this simple adage may clear away the cobwebs.

But when a person is struggling to map out the just and upright course, simply instructing him to "do the right thing" is more likely to frustrate than to inspire. When what is "right" is the preeminent question, falling back on the lazy platitude to do what is "right" amounts to avoidance rather than guidance. Indeed, when the moral path is covered by dense undergrowth, telling a person to "do the right thing" is about as helpful as answering a driver's request for directions with Yogi Berra's tongue-in-cheek advice: "When you come to a fork in the road, take it."(fn1)

And so it is with Rule 3.4(a) of the Model Rules of Professional Conduct. Rule 3.4(a) forbids a lawyer to "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value."(fn2) The key word here is "unlawfully," which appears twice in the sentence. As Stephen Gillers observes, this rule "offer[s] no help" and simply "yields to the law. If it's legal, it's ethical. If not, not."(fn3)

The criminal defense lawyer must be a zealous advocate, protect the client's right against self-incrimination, and maintain confidentiality in representing a client.(fn4) Accordingly, the lawyer is entitled-nay, professionally mandated-to prevent others from gaining access to or information about the location of documents, objects, or other materials that are or were in the possession of the client-unless such efforts would amount to "unlawfully obstruct[ing] another party's access to evidence."

Moreover, a lawyer may properly counsel a client to dispossess herself from documents, objects, or materials that are associated with wrongful behavior or that in themselves are wrongfully possessed (contraband). But, again, the lawyer's forward duties to shield the client's affairs from prying eyes and to advise the client regarding disposal of effects come to a screeching halt if the conduct would be "unlawful."

So where then is that legal line with respect to "real evidence"?(fn5) That of course remains the crucial query. The Model Rules of Professional Conduct buck that question by referring the professional to the substantive law of the applicable sovereign, federal or...