A few weeks ago, I posted here on the dangers of getting too close to a client. That issue came to mind again in reading this article Killer Charisma by Glenn Frankel (Washington Post Magazine 5/13/06) which ponders why advocates for Roger Keith Coleman, who was executed for the murder of his sister-in-law, continued to believe in his innocence until posthumus DNA testing proved otherwise.
The article is a lengthy, but fascinating read. It focuses on Jim McCloskey, an investigator who worked to exonerate Coleman, but it also discusses the legal representation provided pro bono over the course of eight years by Kathleen Behan of Arnold and Porter.
For those who don’t recall the newsheadlines or Coleman’s presence on the cover of Time magazine, the Coleman case involved post-verdict challenge to a capital conviction of Coleman for rape and murder of his sister in law. The Coleman case was regarded as a potential test case which would put forward the issue of whether proof of innocence was ground for overturning a death penalty conviction. And from the accounts that I recall from the press, it did indeed appear that Coleman had been wrongly convicted.
When Kathleen Behan came on board in the Coleman case, she pressed for, and
secured DNA testing. But according to the article:
But the DNA result that came back in November 1990 was far from helpful
to the defense. Blake had had to work from an extremely limited sample
— the cotton swab of semen from the victim had disappeared from the
evidence bag, and he was forced to scrape DNA samples from the stick it
had been attached to. Nonetheless, he found enough to determine there
were two sets of sperm in the victim. One presumably came from Brad
McCoy, who testified he had had sex with his wife two nights before the
murder. Blake narrowed down the other to approximately 2 percent of the
population, including Coleman. The state of Virginia’s experts would
later argue that the proportion of men who had both type B blood and
the DNA match was even narrower — 0.2 percent.
But the results did not deter Behan from moving forward:
But Behan was undaunted. She found other experts who claimed that the
mixed sperm sample made an accurate DNA reading impossible, and who
also challenged the studies on which the percentages were based. And
she and McCloskey seized on another possibility — that the second
sample of sperm came not from Brad McCoy but from a second rapist.
Since even the police accepted that Coleman was alone that night, the
two-attackers thesis, if proved, could have exonerated him. McCloskey
put his doubts aside, and he and Behan went back to work.
Behan then went on to identify another possible suspect – the victim’s neighbor – notwithstanding that he had a different blood type and no other evidence tied him to the scene. Later, that second suspect sued Arnold and Porter for liable; the action was settled.
The article comments that the point where Behan pressed forward in the face of such a close blood/DNA match was:
the moment when Coleman’s defenders lost their
ethical bearings. Fixated on Coleman’s innocence, they ignored or
discredited evidence that pointed to his guilt: “Somewhere along the
way these people who were supposed to be in the fact-finding business
abandoned their responsibility to facts and truth.
Here, I think the article gets the lawyer’s obligation wrong. Behan was hired to prove Coleman’s innocence as a defense and ethically, she was required to carry out that responsibility. Behan was not hired as a case evaluator, but as an advocate. As I see it, she was doing her job, one made more difficult by the mountain of evidence building against her client.
But the impression that I gathered from the article is not just that Behan was doing her job, but that she also came to believe Coleman. She’s not interviewed for the piece, but it must have felt like a kick in the stomach when the postumous testing took away any doubts about guilt. I’ve always read that Alan Dershowitz never asks his clients if they committed a crime or not because knowing the truty might prevent him from pursuing a certain defense or might put him in a position of suborning perjury. I used to believe that Dershowitz’s position was rather callous, but now I see that it’s not just strategy, but also, a way for to stay at arms length from your client, to avoid getting too invested in their case and maybe wind up disappointed.
There’s alot that’s been written about getting and retaining good clients or keeping clients happy. But for me, the greatest challenge in my practice is stopping myself from getting too attached. I don’t want to go to jail like Lynne Stewart and worse, I don’t want my heart broken, like Behan’s must be.