Judge Posner has been in the news a lot lately (
reviewing tearing apart Justice Scalia’s new book here). He is normally known for being a pragmatic judge, which is why his recent opinion is so bizarre. In United States v. Williams, Judge Posner’s pragmatism was instead replaced with a cavalier attitude towards the right to counsel and towards the relationship that must exist between defense counsel and client in order for the defense counsel to properly represent the client.
The defendant in Williams was facing an over 50-year sentence for bank robbery and firearm charges. So, when criminal defendants are facing the equivalent of a life sentence, they normally take two paths. They either cooperate with the government and say whatever the prosecutor tells them (even if its not exactly the truth), or they come up with some hairbrained scheme to try to get out of the conviction. Judge Posner recounts the scheme:
The lawyer testified that Williams had mailed him an envelope marked “legal mail” (so that it would not be opened by the jail) that contained a sealed letter addressed to a cousin of Williams and a note asking the lawyer to forward the letter to Williams’ family to give to the cousin. The lawyer was suspicious and read the letter. It instructed the cousin to provide an alibi for Williams by testifying that Williams had been involved in a marijuana deal on the day of the robbery. Realizing that Williams was trying to obstruct justice by asking the cousin to provide him with a false alibi, the lawyer did not forward the letter. Instead, with the judge’s permission, the lawyer withdrew as Williams’ counsel, turned the letter over to the government, and agreed at the government’s request to testify at Williams’ trial. He testified that the letter was a “blatant attempt to get me involved in smuggling something out of the jail that in turn would be a potential instrument for obstruction.” Williams, who like Austin had decided to testify, admitted on the stand that his aim in writing the letter had indeed been to induce his cousin to lie for him.
Predictably, the defendant alleged that his lawyer committed ineffective assistance of counsel when he testified against his own client. Judge Posner rejected the ineffective assistance claim, holding that no ethical rule prohibited the attorney from disclosing the contents of the letter to the judge. Nor did the ethical rules prohibit defense counsel from turning over the letter to prosecutors and then testifying for the prosecution. Judge Posner wrote:
The literature on the ethical duties of lawyers counsels that a lawyer should attempt to dissuade his client from illegal conduct before disclosing his client’s intentions to the court or to law enforcement authorities. But the literature phrases this as a recommendation rather than as a flat command, frequently hedging it with qualifications such as “ordinarily” and “practicable.”