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Court Sanctions Lawyer's Threat to Expose a Lie

February 27, 1986|PHILIP HAGER | Times Staff Writer

WASHINGTON — The Supreme Court, ruling in an unusual legal ethics case, held Wednesday that a criminal defendant's rights are not violated when the defense lawyer threatens to tell the judge if the accused has lied on the witness stand.

The justices unanimously reinstated the conviction of an Iowa murder defendant that was overturned by a federal appeals court on the grounds the lawyer's threat to withdraw from the case and reveal that his client committed perjury violated the right to fair trial.

"Whatever the scope of the constitutional right to testify, it is elementary that such right does not extend to testifying falsely," wrote Chief Justice Warren E. Burger. ". . . For defense counsel to take steps to persuade a criminal defendant to testify truthfully deprives the defendant of neither his right to counsel nor the right to testify truthfully."

A Troublesome Issue

The case raised an often troublesome issue for criminal defense lawyers, who are duty-bound to maintain a confidential relationship with a client: What should they do when their clients intend to lie in court?

Ethical standards vary from state to state. Some, citing the lawyer's duty to help the court find the truth, say that attorneys must reveal a client's intention to lie. Others say they may withdraw but need not tell the court the reasons because of the risk of prejudicing the case.

Prosecutors from 37 states joined Iowa authorities in urging the court to hold that defendants' rights are not violated simply because their lawyers prevent them from committing perjury. The National Assn. of Criminal Defense Lawyers contended that while lawyers should be permitted to withdraw, in no case should they reveal that their clients are not telling the truth.

In the case before the court (Nix vs. Whiteside, 84-1321), Emmanuel Charles Whiteside, awaiting trial for murder, told his lawyer that he intended to bolster his claim of self-defense by testifying that he saw something "metallic" in the hands of a man he was accused of stabbing to death. "If I don't say I saw a gun, I'm dead," Whiteside said.

Warned to Tell Truth

The lawyer, Gary L. Robinson of Cedar Rapids, warned his client to tell the truth--and said he would quit the case otherwise and inform the judge. Whiteside later testified that he saw no weapon and was convicted and sentenced to 40 years in prison. A federal appellate panel in St. Louis overturned the conviction.

The Supreme Court, reversing the appeals court, found there was no violation of Whiteside's rights and reinstated the conviction. Burger, in an opinion joined by Justices Byron R. White, Lewis F. Powell Jr., William H. Rehnquist and Sandra Day O'Connor, said Robinson's actions were well within ethical rules adopted by the state of Iowa. And while acknowledging that it is up to individual states to apply such standards, Burger said lawyers should in no way help a client commit perjury.

'Duty of Loyalty'

"Counsel's duty of loyalty and (advocacy) is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for the truth," Burger wrote. "Although counsel must take all reasonable, lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence."

The other members of the court, while agreeing that Whiteside's rights were not violated, filed opinions saying that the case should not be used to try to resolve ethical dilemmas for lawyers.

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