The Supreme Court's 6-to-3 certification of the attorney-client privilege beyond the grave in criminal cases seems clearly a decision for the dead at the expense of the living.
Certainly it is a ruling that does nothing to further the interests of justice. Quite the contrary, it would, in a worst-case scenario, appear to protect a deathbed confidence that might exonerate a third person being tried for a crime he had not committed.
Obviously, the court's ruling has damaged Independent Counsel Kenneth Starr's investigation of Hillary Clinton's role in the infamous "Travelgate" affair - the replacement of longtime White House Travel Office personnel with Clinton cronies and the unjust accusation that they had embezzled funds.
The court's ruling, which overturned an appeals court decision, came as Starr sought to obtain the notes of an attorney representing Vincent Foster, the White House counsel and Clinton confidant who committed suicide. The notes were taken in a conference with Foster nine days before he died and Starr had reason to believe they bore directly on the travel office debacle.
The issue of attorney-client privilege after death always has been a delicate one. Ironically, there are exceptions in civil cases where breaking confidences might be necessary to expedite the settling of an estate, but now apparently not in criminal matters where the implications could be far more serious.
A majority of the court agreed with a substantial number of lobbying groups (all with vested interests) including the American Bar Association that without the assurance of posthumous privilege, clients would be less willing to confide in their attorneys.
"It has been generally, if not universally, accepted, for well over a century, that the attorney-client privilege survives the death of the client in a case such as this," Chief Justice William H. Rhenquist wrote for the court.
The court rejected any notion that concern for one's reputation after death was abstract. That concern, it said, had a direct bearing on the Foster case.
"Foster, perhaps already contemplating suicide, may not have sought legal advice from (James) Hamilton (his attorney) if he had not been assured the conversation was privileged," the justices said.
In a strong rebuttal, Justice Sandra Day O'Connor, writing for the minority, stated that the cost of recognizing an absolute posthumous privilege can be inordinately high. She warned that "extreme injustice" may occur, for example "where a criminal defendant seeks disclosure of a deceased client's confession to the offense."
O'Connor said that in her view the value that the criminal justice system places on an innocent defendant should "outweigh" a dead client's wishes for confidentiality. She went on to note that even Hamilton in his petition for privilege acknowledges an exception where a defendant's constitutional rights are at stake. And she rightfully adds that an exception may be warranted when there is a compelling law enforcement need for information, adding "that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer."
The "chilling" effect here, it would appear, is not only on this prosecutor's ability to get to the bottom of a serious criminal matter (in this case, one that involves the wife of a U.S. president) but also on the ability of future prosecutors to do so.
If it is impossible to libel a dead person, why should their confidences with their attorney in a criminal case be sacrosanct? Why should even the most embarrassing disclosures about a dead person be protected when the matter involves getting at the truth for the benefit of the living?
Justice O'Connor notes that in disputes between heirs over a decedent's will, the privilege is widely recognized to give way to the interest in settling the estate, even where the decedent might not have chosen to waive it. She cites the disclosure of an illegitimate offspring with an interest in the estate, as an example.
Wonderful. Is the court now saying that it's all right for an attorney to reveal potentially embarrassing information about the dead if there is money involved (presumably attorney's fees are included) but not when it comes to freeing an innocent man from prison or, apparently, even from a penalty of death?
One could only hope that the court would look favorably on a lawyer who broke the privilege of a deathbed confession in order to save a life. But who knows?
And what about the convicted murderer who, as he is about to be executed, tells his attorney that he is guilty but will profess his innocence to the last, bequeathing a legacy of bitterness to his survivors who believe he was unjustly convicted?