Silencing the Dead

Judicial double standards

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Is an attorney released from the attorney-client privilege after his client dies? In North Carolina, the answer apparently is yes—but only if it helps prosecutors.

Lee Wayne Hunt is serving time in that state for a double murder he insists he did not commit. He was convicted in part due to lead-bullet analysis, a discredited forensic technique formerly used by the Federal Bureau of Investigation. The FBI now admits the technique is flawed but insists it's under no obligation to do anything about the people convicted because of it.

The other evidence against Hunt, an admitted marijuana dealer, was testimony from two fellow dealers. After one of those dealers, Jerry Cashwell, committed suicide in prison, his lawyer came forward to say that prior to his death, Cashwell told him he alone committed the two murders for which Hunt was convicted. Upon learning that Hunt had been convicted based on faulty forensic evidence and the word of a convict who sub­sequently made a confession exonerating Hunt, the court did not grant Hunt a new trial. Instead it referred Cashwell's lawyer to the state bar for an ethics investigation into a possible breech of attorney-client privilege.

That's odd, because in 2006 the North Carolina Supreme Court ruled that prose­cutors can force an attorney to divulge information that might help their case if the client who supplied the information has died. The opinion was written by I. Beverly Lake, now a lawyer in private practice representing Lee Wayne Hunt. "It makes no sense," Lake told The Washington Post, "that a lawyer can be required to divulge information from a dead client to the state but then not be allowed to do the same if it helps a defendant."

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