BOOK REVIEW ON THE BODIES CASE AND COMMENTARY ON CONFIDENTIALITY.
By Alvin Esau, Professor of Law, University of Manitoba, 1988
PRIVILEGED INFORMATION, by Tom Alibrandi with Frank Armani, published by Dodd, Mead, New York, 1984, 215 pgs.
This is an account of the “bodies” case, told from the perspective of Frank Armani, one of the defense lawyers involved in the case. There are only a few legal cases which are so notorious that we can adopt a fact citation, like we do with “the snail in the bottle” case, and every lawyer knows what we are referring to. The “bodies” case is like that. In the field of professional ethics this is the one case that every law student is presented with as a classic example of the problem of lawyer-client confidential information.
I was familiar with the case before reading this book, because I had read newspaper accounts, and the New York judicial decisions dealing with it, and of course, I have discussed the case in law classrooms for years. More importantly, I met both Armani and his co-counsel, Francis Belgi, at a conference on legal ethics in 1977 in Detroit. They had been flown in to tell their stories. My impression at that time was that Belgi was a blustery adversarial warrior, out to fight the state at every turn, with no deeper moral sensitivity to ambiguity. Armani, on the other hand, in his soft-spoken painful presentation struck me as a nice guy who had questioned and suffered much in his upholding of the traditional ethic. So, when I heard many years later that Armani had written a book about the case, I wanted to read it.
At one level, the book fulfilled my expectations by providing many interesting details on the case that I did not know about. At another level, however, given that the book was written for a general audience, I was disappointed in the lack of explicit moral justification offered to the public for the principle of confidentiality. The book basically tells the story, rather than using the story for an effective discussion of the issues. That the book shows Armani as indeed a nice guy upholding the role of defense counsel at great cost, is not sufficient to change the mind of the average reading appalled at what lawyers do.
On July 29th, 1973, Robert Garrow, a powerfully built 36-year-old, was on the run. Several days earlier, he had failed to show up for his trial in Syracuse, New York, on a charge of sexually assaulting two children, and so a warrant was out for his arrest. Early in the morning, Garrow spotted a couple of tents at a remote campsite. Four young people were on a weekend fishing trip in the Adirondack mountains in New York State. One of them was a female, who was dating one of the three male youths. Garrow stopped his car a short distance away and confronted the youths, saying that he had run out of gas and wanted to have some from one of their vehicles. However, when the four campers were gathered together, Garrow, at gun point, marched them into the woods, and ordered that, one at a time, each of them be tied to a tree out of sight from the others. The last to be tied up was the young woman and it was clear to the others that Garrow at minimum intended to rape her. He left her, however, to go back and check on the ropes of the others first. When he came back to Philip Domblewski, Garrow stabbed the 18-year-old youth to death after Domblewski tried to resist. Fortunately for the others, one of the youths in the meantime had escaped and while Garrow was stalking through the woods looking for him, the young man ran back to his vehicle, drove off and gathered together a group of armed men who arrived on the scene.
At this point Garrow escaped into the woods, and soon the largest manhunt in the history of New York State commenced, because Garrow was a prime suspect as a serial killer in half a dozen other murders. Garrow, a very capable and clever survivalist, eluded police in a cat and mouse game in the woods, but he was finally gunned down eleven days later, after making a foolish attempt to see his sister at a time when he had effectively escaped the police net and could have safely run from the area. Despite serious injuries, he lived to face trial for the Domblewski murder, for which the state had a watertight case given the three witnesses left alive to tell the tale. However, there was not as yet sufficient evidence for indictments on other murders that the authorities were convinced Garrow had committed.
Garrow called for his lawyer, Mr. Frank Armani, who had represented him on several cases in the past, including the child molestation charge that Garrow had run from. Armani, then 46, was a general “small town” practitioner with a thriving little firm that he had built up in Syracuse. He was not a specialist in criminal law and had never represented anyone on a murder charge before. However, Garrow’s wife phoned Armani insisting that Garrow wanted him to come to the hospital. Thinking that a court would never appoint him as the trial lawyer in the case anyway, he told Garrow’s wife not to talk to anyone and went to see Garrow. Garrow complained of post-arrest police torture, which from the medical condition of Garrow, who was conscious but barely alive, was quite probable. The police believed that Garrow had killed a young male camper, Daniel Porter, nine days before the Domblewski murder. Porter’s camping companion, Susan Petz, a Boston College student from Skokie, Illinois had vanished without trace and police believed that perhaps Garrow had her hidden somewhere. She might still be alive several weeks later, if the police could only find out from Garrow one way or the other where she was. Garrow, who was well experienced with the criminal process, was not about to help the authorities and he pleaded with Armani to represent him and help him through this ordeal.
Upon visiting the district judge near Lake Pleasant, which was in the jurisdiction of the murder charge, Armani found himself reluctantly, and despite his lack of experience, as the court appointed defender of Garrow. Long exhausting interviews with Garrow led Armani nowhere. Garrow claimed that he had terrible headaches, partly as a result of a car accident suffered a year earlier and that he blacked out and could not remember the critical events surrounding the Domblewski murder. Convinced that the only possible defense was insanity, Armani uncovered a great deal on Garrow’s past. Garrow’s parents were both alcoholics and extremely abusive to him. While working as a farmhand, the young Garrow frequently had sexual intercourse with a variety of animals. He had been in trouble with the law on many occasions, then finally had been convicted of rape, and after spending eight years in prison he had been on the surface for five years a very responsible family man, working as a mechanic in a bakery and well liked in his Syracuse neighborhood. There was a psychiatrist who was of the opinion that Garrow was psychotic. Armani, however, was still so uncertain about his ability to conduct the case himself that he eventually persuaded his lawyer friend, Francis Belgi, then considered the best trial lawyer in the area to join him as a co-counsel. This eventually proved to be a very fateful mistake.
Belgi was immediately of the view that the best approach to the case was to get information from Garrow on other murders that he had likely committed and then plea bargain – exchange the information in return for a prosecutorial agreement to a plea of innocence by reason of insanity. Eventually Garrow was persuaded by Belgi and Armani to confess his involvement in other murders. Garrow confessed that he had picked up Alicia Hauck, a 16-year-old high school student hitchhiking her way home from school, raped her and then killed her and dumped her body in a remote corner of a Syracuse cemetery. He also confessed to killing the Porter youth and abducting Susan Petz and after three days of confining her and raping her, he killed her and dumped her body down an abandoned mine shaft. Garrow explained to the lawyers the locations of the bodies in more detail.
Armani and Belgi, for reasons never adequately explained in the book, other than perhaps not knowing fully whether to believe Garrow or not, decided to search for the bodies of the dead women. The book recounts the interesting “adventure” of the defense lawyers eluding the police, who were tailing their every move. Obviously, the police were of the opinion that the lawyers had been told information about other murders. Eventually the lawyers found the body of Petz in the mine, and they took pictures of it. However, after a prolonged search, they couldn’t find the Hauck body in the cemetery. By this stage Armani was genuinely horrified by Garrow’s action and the enormity of having knowledge of the whereabouts of a woman’s body perfectly preserved in a cold mine shaft while her parents and the authorities were still searching for her. Why bother trying to find the next victim? Without Armani’s consent and knowledge, however, Belgi later returned to the cemetery and with a hunting guide who he swore to secrecy, Belgi found the partly clad and badly decomposed body of Alicia Hauck. The body had been ravaged by animals and her skull had been torn from the rest of her body and was located ten feet from the rest of her remains. At this time the parents of Hauck were advertising a thousand-dollar reward for information on the whereabouts of their daughter. The parents thought that their daughter was a run-away.
So, there you have the dilemma. The lawyers knew where the bodies were hidden, and they knew positively that Garrow was responsible for the women’s deaths, while at the same time the parents of the victims and the police did not know these things. Obviously, as any lawyer knows, this information was confidential and could not be revealed to anyone without the client’s consent. Garrow had already consented to reveal it, but only in a plea bargain exchange that would avoid a trial and the need to prove insanity in front of a jury. Belgi, who is portrayed in the book as a hard drinking, adversarial, wild egomaniac, appeared to display little concern for the morality of keeping this information confidential; but Armani, who had young teenage daughters of his own, was genuinely torn and tormented by the situation. Indeed, he traveled up to see a well-known authority on legal ethics at a university law school. This is the only part of the book where a fictitious name is given to protect the confidences of the professor, but I surmise from clues in the narrative that it was likely, ….[removed]…
Mr. Petz, the father of Susan Petz, flew from Chicago to Syracuse to ask Armani if he could tell him anything about his daughter’s whereabouts. The father knew that Garrow was a strong suspect in the killing of Porter and that Armani was Garrow’s lawyer. Armani, faced with a tearful, desperate father, said in essence to Mr. Petz that he had no information to give to him even though Armani knew that the daughter was dead and knew where her body was. This was not easy for Armani to do. Armani, under the unpleasant demands of defending the rights of a loathsome Garrow, and armed with his guilty secrets, became insomniac, started to drink too much, and found his marriage and family life unraveling.
The plea-bargaining session was a disaster. Belgi offered to trade information that would close the file on unsolved homicides in return for the insanity plea acceptance. The prosecution dug out enough information from Belgi in the bargaining session to realize that the evidence that Belgi had included the location of bodies. This outraged the prosecutor who felt that Garrow was a sex pervert but not at all insane, and it was terrible that the lawyers were obstructing justice by not revealing the locations of bodies. He threatened eventually to prosecute the lawyers for this conduct. Many months later, but before the trial of Garrow, the bodies of Petz and Hauck were found, ending the parent’s ordeal of uncertainty and allowing them to start the necessary process of mourning in earnest.
At the trial, Belgi, playing up to the media, and engaging in every trick of the adversary system, basically took over the case from Armani. One example of Belgi’s shamelessness was the month-long jury selection process, in which Belgi had one of his friends, a deaf woman with very good lip-reading skills, sit in the courtroom reading the lips of the prosecutors as they discussed their views on prospective jurors. Not that the ethics of the prosecution were any better. The defense lawyers had their offices broken into, their phones tapped, and they were not given much protection from the continuing series of hate calls and death threats that came their way. After the prosecution case was complete, Belgi, without even talking to Armani about it, or event talking to his client, announced that the first defense witness would be Garrow. Armani nearly fell off his chair. During a brief recess, Belgi persuaded Garrow to testify about his past and admit to a long litany of crimes, perhaps shocking the jury into a belief that Garrow was crazy. Garrow did not want to take the stand but finally did so on Belgi’s orders, and then with Belgi acting more like a prosecutor, Garrow eventually confessed in horrifying detail to seven rapes and three additional murders. Armani could clearly see that the jury was simply being inflamed into anger and horror towards Garrow, rather than turning toward a belief in his insanity. To make matters worse, at the close of the day, Belgi announced to the media, that he and Armani, knew about these other murders long before and that they had confirmed their client’s confessions by viewing the bodies of the victims and had not said anything till now because of confidentiality. Why this statement was made to the press is never explained. Back at the hotel that evening an enraged Armani confronted Belgi and the two lawyers ended up having a full-blown fist fight, leaving both of them bruised and battered to return to the court the next day. Now the intensive media attention of the case shifted from Garrow to the ethical question of the defense lawyers and their knowledge of the bodies.
After Garrow was convicted of first-degree murder, the local prosecutor brought an indictment against Belgi and Armani for obstructing justice and violating a state health law that required reporting of deaths. A petition had also been filed with the New York State Bar Association to have the lawyers disciplined. In the context of a public outraged by the lawyer’s behaviour, Armani’s practice was in ruins as his clients left in droves, forcing him to lay off all his associates and secretaries. His wife and children had left the house to live elsewhere due to the threats on their life. On top of that, he still had Garrow as a client, who now faced indictments for other murders he had confessed to, and also the need to appeal his murder conviction. Eventually, with Belgi still maneuvering around behind his back filing counter charges against the prosecutor, Armani was released from the case when Garrow fired him and then filed a lawsuit against Armani and Belgi for 5 million dollars for allegedly denying him due process in the murder trial. After Armani testified at his grand jury hearing on the charges brought against him, and he learned that the jury had not brought in an indictment, he promptly had a severe heart attack. He now had lost pretty near everything in his defense of Garrow – his reputation, his practice, his friends, his family and now his health.
Over the next years, Armani struggled back despite another heart attack in 1981. Belgi however, was indicted and this indictment was litigated through several levels of courts. The judiciary upheld the lawyer’s conduct on the crucial point that confidentiality in lawyer-client communications outweighed any legal duty to report dead bodies so as to give them a dignified burial. The Bar Society also exonerated the lawyers. Belgi, however, not surprisingly ended up on a prolonged bender and was suspended from the practice of law for trust fund violations. According to the book, he now lives somewhere in Florida. Garrow, who clearly was never insane, by the Canadian standard of cognitive incapacity, continued to make history. In 1978, Garrow, who was still considered to be quite incapacitated from the wounds suffered in his 1973 capture, was transferred to a medium security prison where he could get psychiatric treatment. There his son smuggled a gun to him in the bottom of a barrel of fried chicken, and Garrow, who was supposed to be in a wheelchair, pried open a barred window with a long oak table leg and then scaled an 18-foot wall and escaped into the woods. He had cleverly faked his incapacities. Several days later, Garrow was shot to death by the police after he had shot at one of them upon being discovered.
What this book needs is at least a summary treatment of the debate surrounding confidentiality and its limits. Instead of presenting confidentiality as an absolute, if painful value, it would have been better to explore the problem of drawing the line between conflicting values. The value of “trust and truth telling” that confidentiality fosters in lawyer-client relationships on one hand, versus the value of interests protected by disclosure on the other hand. What follows is not a complete summary of such a balancing process, but rather a brief commentary on several of the distinctions that must be considered.
A. FUTURE V. PAST HARMS
One factor in this line drawing exercise that should have been explored in the book is that of future versus past harm. There is a moral difference between remaining silent about harm that cannot be undone, (although there are interests of vindication and accountability for the harm that could be served by disclosure), versus remaining silent about harm that is not yet done, but likely will be done, unless you prevent it. There certainly was future harm in the bodies case that could have been prevented by disclosure, in the sense that the parents had a much longer period of uncertainty to live through, and perhaps many people had some religious or humanitarian sense of the continued sanctity of even dead bodies that was violated by just leaving the bodies exposed to the elements. But, in essence, the harm had already been done. The victims were dead.
On the other hand, if your client tells you about illegal action that he or she wants to do, and you cannot persuade the client to desist from proceeding with the action, and it is action sufficiently harmful to others to cause you concern, you may violate the confidences of the client to the extent necessary to prevent the harm from occurring if possible. However, sometimes the line between past and future conduct is blurred. Some action may have occurred in the past, but the harm is still running into the future in a way that calls for disclosure. If, for example, the lawyers had been told by their client where a body of an alleged murder victim was hidden, and upon arriving at the scene, the lawyers discovered that the person was not dead at all, but still tied to a tree and in need of food and medical attention, could anybody now argue that the lawyers should leave the victim there to starve to death or die of exposure, rather than contacting the authorities and providing immediate help to the victim, even though that disclosure would violate a confidence and likely help the state to hold the client accountable for his deeds.
Yet, some lawyers do take the absolutist position that they would not violate confidentiality even to prevent severe future harm, whether that harm is yet to be initiated or is already flowing from past acts. This places a value on confidentiality far out of proportion to the moral freight it can possibly bear. Certainly, if a group of moral philosophers or even a representative group of the general public drafted a code of ethics for lawyers, they would never place confidentiality on that absolutists plateau. Confidentiality would be conditional at best, not absolute. The moral value in preventing future harm often clearly outweighs the value of lawyer-client confidentiality. The famous scenario of a client confessing to a murder that some other innocent party has been wrongfully convicted of, and is in jail for, or indeed is going to face the executioner for, comes to mind. I just cannot buy the argument that the minuscule incremental cost to possible future trust between lawyers and clients, or the moral distaste of breaking confidence treated as a non utilitarian principle of conduct, can outweigh the basic moral demand to prevent harm to others that stems from our shared humanity and solidarity with others.
Supporters of nearly absolute confidentiality, like Monroe Freedman and others are likely to make the issue into one of individualism versus collectivism, even liberal democracy versus communism, but this tactic is highly misleading. We are not just seeking to uphold collective public interests over against individual interests, but rather what is at stake is often a clash of individual interests. If my client, involved in a messy unjust dismissal case, goes out of my office, gun in hand to kill his former employer, the individual interest of the employer to receive my aid, at least in the form of a warning given my knowledge of his danger, clearly outweighs in moral worthiness the individual interest of the client to have me preserve his confidences, and this is so before any further collectivizing of the respective interests takes place. Indeed, it is the absolutist who paradoxically collectivizes by arguing for the overall social worth of the adversary system, right to counsel, and so forth. The fundamental point is that we must exist in a context in which the ordinary morality of human care for one another simply cannot be displaced by some special role morality of lawyering, unless at a higher level the role morality can be re-grounded into ordinary moral reasoning again.
The difficulty, of course, is to draw the lines around kinds of future harm. When can we blow the whistle? If we can violate confidentiality for any kind of future harm, the cost of trust and openness between lawyer and client could indeed be impaired in systemic ways more damaging to society than the harm prevented by the whistle blowing. A significant part of lawyering is preventative and planning law, where we advise clients on future courses of conduct. This kind of lawyering requires even more candor on the part of clients than advocacy matters do. If clients come to understand that lawyers can blow the whistle on them, they may not confide in lawyers in the first place, on exactly those matters that the lawyer’s advice is most needed and for which the lawyer might dissuade the client from illegal or immoral acts.
The final result of the prolonged debate in America on the limits of confidentiality resulted in the following ABA Model Rules of Professional Conduct, (1983) provision:
Rule 1.6 (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; . . .
Notice how narrow this provision is. First of all, one would expect that if death or substantial bodily harm was at stake, the lawyer ought to have a mandatory duty to prevent it by disclosure, but his provision only makes it discretionary. Secondly, the discretion is very narrow as to the time frame and kind of harm involved – only imminent substantial bodily harm can outweigh confidentiality. If my client is going to commit a huge fraud or theft that will bilk hundreds of people of their life savings, I cannot say anything, and if I do, I could be subject to charges of professional misconduct for breaching this provision. This is simply far too restrictive, compared to the broad discretion given under the Canadian Code to disclose to prevent any crime, without restricting the type of crime. Thirdly the kind of act causing the harm must be a criminal act rather than simply an illegal act, like a breach of contract, or commission of a tort, or a breach of some regulatory statutory provision. This too, is far too restrictive. What is significant from a moral point of view is the wrongful harm to be done by my client, not the vague distinction between criminal and other law. Indeed, I might support a disclosure discretion that included immoral acts causing severe harms and not just illegal acts.
But to widen the net of possible wrongs that lawyers can prevent by disclosure of confidences, requires us collectively to stop seeing the moral duty of lawyers as focused exclusively on the paying individual or institutional client, and start seeing that we also have moral duties to third parties who are not our clients but are affected by our client’s conduct. The exclusive client centered view of professional ethics is actually no ethic at all, but rather an escape from having to take ethics seriously by focusing only on one force in an interdependent, interactive world.
B. EVIDENCE V. INFORMATION
Another important distinction is that the ethical rule of confidentiality, like the evidential rule of privilege, does not apply to the possession of evidence in physical form as opposed to the possession of information supplied to the lawyer by the client. If my client, who has just been involved in an armed robbery, deposits a gun on my desk and then departs, I cannot keep the gun and argue that to disclose it to the authorities would violate a client confidence. Any communications made about the gun, and even the identity of the person giving it to me may be confidential, but the gun itself must be handed over to the appropriate authorities, even if that may eventually lead to the arrest or conviction of the client. This is so, because the client has the conditional right to have his communications with me held secret, but he does not have the right to use confidentiality as a way of removing evidence of the act from the authorities. We may as a lawyer be the repository of guilty secrets, but we are not the repository of physical evidence.
The bodies were very definitely physical evidence. Arguably, however, despite Belgi’s clearly wrongful moving of the head of one of the bodies, the lawyers never took possession of the evidence, but only confirmed the existence of it. They did not, therefore, shelter the evidence from the authorities in any way, but rather protected the client’s legal right to remain silent by remaining silent themselves. The right to remain silent would not mean anything if lawyers had a duty or a discretion to tell the authorities the confessions made to them. Perhaps something is wrong with the way that the right to remain silent operates in the criminal justice system, but that is a topic for another day.
C. CONFIDENTIALITY AND CANDOUR
But what is it that bothers many people when told of the bodies’ case or similar stories involving lawyer’s ethics? I would venture to say that it is not the principle of confidentiality at all. Rather it is what lawyers do, or apparently do, despite what they confidentially know. It is not the passive keeping of secrets that bothers people, but rather the active helping of clients to avoid disclosure and accountability, by trying to rearrange reality in the courtroom in ways that run counter to what the lawyer actually and confidentially knows is the case. While it is true that we have an ethical principle that limits the defense of the client who confesses to the lawyer, and we have serious problems that can arise between confidentiality and the rule against presenting perjury, at bottom the art of advocacy still sometimes involves presenting a theory of the case with all the sincerity that we can muster, that we just plain morally know is false. It is because of this active participation on our part in suppressing the truth or distorting it, that we are burdened in the public eye with a kind of moral complicity with our client’s ends.
The problem is that commentators on this subject assume that confidentiality is something that must conflict with candour. To preserve confidence and yet play the game of the adversary system requires you to sacrifice candour to the court and others. However, I do not understand why Armani could not have told the father of one of the dead women that, “I cannot tell you anything because everything told to me by my client is confidential,” rather than saying in effect, “I have nothing to tell you.” Similarly, I do not understand why we cannot substantially strengthen the ethical duty of candour to the court and others. As I see it, such a duty does not conflict with confidentiality at all. You may have a right to my silence, but you do not also have a right to any advocacy from me that clearly is inconsistent with what you say to me.
Paradoxically, in the bodies case this sort of active duplicity was largely absent, because instead of suppressing the truth or distorting it, the lawyers at trial actually brought it out, albeit in an attempt to receive an insanity verdict. While sometimes crude and lacking in coherence, the substantive principles of criminal liability – the various degrees of mental culpability, justifications, excuses and so forth, are largely justifiable moral principles for determining blameworthiness. It is the evidential and procedural aspects of the adversary system, not substantive criminal law, that are at the root of a pervasive belief by the public that criminal trials are little more than theatre in which tactics count for more than truth. This is simply to say that it is not confidentiality that is the problem, but the false dichotomy we have systematically constructed that pits confidentiality against candour, as if the client’s right to confidentiality translates into some kind of right and duty to be duplicitous so as to not reveal a confidence.
D. JUSTIFICATION V. RATIONALIZATION
What is most peculiar about this subject is the incoherence of the arguments used to support confidentiality. First of all, there is the client honesty argument. Supposedly the prime factor in favour of confidentiality is that the client will tell you the complete truth from his or her point of view so that you can more effectively advise and represent the client. Clients who hold back on you often mistakenly believe that some facts hurt them rather than help them. Yet lawyers who support confidentiality on these grounds often do not want to hear from the client at all. They prefer the ethical freedom of being agnostic about facts. “What is truth?” they ask as Pilot did of Jesus. Clients lie, of course, or change their story between interview and witness stand, and you have no way of knowing anything anyway. Thus, truth is simply whatever fiction results from the trial process not something that stands independently from it. Clearly then the supposed honesty justification for confidentiality is just a rationalization as we in fact adopt an ethic of cynicism about facts.
Secondly, there is the client autonomy argument. Confidentiality preserves the autonomy of the individual client as against other countervailing interests. Yet this too is a rationalization because in fact lawyers often manipulate and dominate the client. The bodies’ case is a good example. It was not Garrow’s wish to confess to the lawyers, he again was manipulated into it by the lawyers. So, while we represent to the public the importance of lawyers respecting the autonomy of the client, we in fact dominate, control, and coerce clients in all sorts of ways that we are sometimes not even aware of, given our professional power over clients.
Thirdly, there is the client privacy argument. Yet the profession that is so comfortable fighting disclosure of client secrets to affected third party interests, is the same profession that loves to talk. Go to the bars, the cocktail parties, the tennis courts, or the jogging tacks, or whatever, and listen to lawyers talk shop to one another and others. I do not at the moment have so called guilty secrets to share with a fellow lawyer, but I do have personal information about financial and family matters that I prefer to control, simply because it is personal. The irony of it is that I do not trust most lawyers or their staff to in fact keep that information confidential in a strict sense.
So that is my conclusion, we need less confidentiality and at the same time, much more.
By Alvin Esau, Professor of Law, University of Manitoba, 1988
PRIVILEGED INFORMATION, by Tom Alibrandi with Frank Armani, published by Dodd, Mead, New York, 1984, 215 pgs.
- INTRODUCTION
This is an account of the “bodies” case, told from the perspective of Frank Armani, one of the defense lawyers involved in the case. There are only a few legal cases which are so notorious that we can adopt a fact citation, like we do with “the snail in the bottle” case, and every lawyer knows what we are referring to. The “bodies” case is like that. In the field of professional ethics this is the one case that every law student is presented with as a classic example of the problem of lawyer-client confidential information.
I was familiar with the case before reading this book, because I had read newspaper accounts, and the New York judicial decisions dealing with it, and of course, I have discussed the case in law classrooms for years. More importantly, I met both Armani and his co-counsel, Francis Belgi, at a conference on legal ethics in 1977 in Detroit. They had been flown in to tell their stories. My impression at that time was that Belgi was a blustery adversarial warrior, out to fight the state at every turn, with no deeper moral sensitivity to ambiguity. Armani, on the other hand, in his soft-spoken painful presentation struck me as a nice guy who had questioned and suffered much in his upholding of the traditional ethic. So, when I heard many years later that Armani had written a book about the case, I wanted to read it.
At one level, the book fulfilled my expectations by providing many interesting details on the case that I did not know about. At another level, however, given that the book was written for a general audience, I was disappointed in the lack of explicit moral justification offered to the public for the principle of confidentiality. The book basically tells the story, rather than using the story for an effective discussion of the issues. That the book shows Armani as indeed a nice guy upholding the role of defense counsel at great cost, is not sufficient to change the mind of the average reading appalled at what lawyers do.
- SUMMARY ACCOUNT OF THE BODIES CASE
On July 29th, 1973, Robert Garrow, a powerfully built 36-year-old, was on the run. Several days earlier, he had failed to show up for his trial in Syracuse, New York, on a charge of sexually assaulting two children, and so a warrant was out for his arrest. Early in the morning, Garrow spotted a couple of tents at a remote campsite. Four young people were on a weekend fishing trip in the Adirondack mountains in New York State. One of them was a female, who was dating one of the three male youths. Garrow stopped his car a short distance away and confronted the youths, saying that he had run out of gas and wanted to have some from one of their vehicles. However, when the four campers were gathered together, Garrow, at gun point, marched them into the woods, and ordered that, one at a time, each of them be tied to a tree out of sight from the others. The last to be tied up was the young woman and it was clear to the others that Garrow at minimum intended to rape her. He left her, however, to go back and check on the ropes of the others first. When he came back to Philip Domblewski, Garrow stabbed the 18-year-old youth to death after Domblewski tried to resist. Fortunately for the others, one of the youths in the meantime had escaped and while Garrow was stalking through the woods looking for him, the young man ran back to his vehicle, drove off and gathered together a group of armed men who arrived on the scene.
At this point Garrow escaped into the woods, and soon the largest manhunt in the history of New York State commenced, because Garrow was a prime suspect as a serial killer in half a dozen other murders. Garrow, a very capable and clever survivalist, eluded police in a cat and mouse game in the woods, but he was finally gunned down eleven days later, after making a foolish attempt to see his sister at a time when he had effectively escaped the police net and could have safely run from the area. Despite serious injuries, he lived to face trial for the Domblewski murder, for which the state had a watertight case given the three witnesses left alive to tell the tale. However, there was not as yet sufficient evidence for indictments on other murders that the authorities were convinced Garrow had committed.
Garrow called for his lawyer, Mr. Frank Armani, who had represented him on several cases in the past, including the child molestation charge that Garrow had run from. Armani, then 46, was a general “small town” practitioner with a thriving little firm that he had built up in Syracuse. He was not a specialist in criminal law and had never represented anyone on a murder charge before. However, Garrow’s wife phoned Armani insisting that Garrow wanted him to come to the hospital. Thinking that a court would never appoint him as the trial lawyer in the case anyway, he told Garrow’s wife not to talk to anyone and went to see Garrow. Garrow complained of post-arrest police torture, which from the medical condition of Garrow, who was conscious but barely alive, was quite probable. The police believed that Garrow had killed a young male camper, Daniel Porter, nine days before the Domblewski murder. Porter’s camping companion, Susan Petz, a Boston College student from Skokie, Illinois had vanished without trace and police believed that perhaps Garrow had her hidden somewhere. She might still be alive several weeks later, if the police could only find out from Garrow one way or the other where she was. Garrow, who was well experienced with the criminal process, was not about to help the authorities and he pleaded with Armani to represent him and help him through this ordeal.
Upon visiting the district judge near Lake Pleasant, which was in the jurisdiction of the murder charge, Armani found himself reluctantly, and despite his lack of experience, as the court appointed defender of Garrow. Long exhausting interviews with Garrow led Armani nowhere. Garrow claimed that he had terrible headaches, partly as a result of a car accident suffered a year earlier and that he blacked out and could not remember the critical events surrounding the Domblewski murder. Convinced that the only possible defense was insanity, Armani uncovered a great deal on Garrow’s past. Garrow’s parents were both alcoholics and extremely abusive to him. While working as a farmhand, the young Garrow frequently had sexual intercourse with a variety of animals. He had been in trouble with the law on many occasions, then finally had been convicted of rape, and after spending eight years in prison he had been on the surface for five years a very responsible family man, working as a mechanic in a bakery and well liked in his Syracuse neighborhood. There was a psychiatrist who was of the opinion that Garrow was psychotic. Armani, however, was still so uncertain about his ability to conduct the case himself that he eventually persuaded his lawyer friend, Francis Belgi, then considered the best trial lawyer in the area to join him as a co-counsel. This eventually proved to be a very fateful mistake.
Belgi was immediately of the view that the best approach to the case was to get information from Garrow on other murders that he had likely committed and then plea bargain – exchange the information in return for a prosecutorial agreement to a plea of innocence by reason of insanity. Eventually Garrow was persuaded by Belgi and Armani to confess his involvement in other murders. Garrow confessed that he had picked up Alicia Hauck, a 16-year-old high school student hitchhiking her way home from school, raped her and then killed her and dumped her body in a remote corner of a Syracuse cemetery. He also confessed to killing the Porter youth and abducting Susan Petz and after three days of confining her and raping her, he killed her and dumped her body down an abandoned mine shaft. Garrow explained to the lawyers the locations of the bodies in more detail.
Armani and Belgi, for reasons never adequately explained in the book, other than perhaps not knowing fully whether to believe Garrow or not, decided to search for the bodies of the dead women. The book recounts the interesting “adventure” of the defense lawyers eluding the police, who were tailing their every move. Obviously, the police were of the opinion that the lawyers had been told information about other murders. Eventually the lawyers found the body of Petz in the mine, and they took pictures of it. However, after a prolonged search, they couldn’t find the Hauck body in the cemetery. By this stage Armani was genuinely horrified by Garrow’s action and the enormity of having knowledge of the whereabouts of a woman’s body perfectly preserved in a cold mine shaft while her parents and the authorities were still searching for her. Why bother trying to find the next victim? Without Armani’s consent and knowledge, however, Belgi later returned to the cemetery and with a hunting guide who he swore to secrecy, Belgi found the partly clad and badly decomposed body of Alicia Hauck. The body had been ravaged by animals and her skull had been torn from the rest of her body and was located ten feet from the rest of her remains. At this time the parents of Hauck were advertising a thousand-dollar reward for information on the whereabouts of their daughter. The parents thought that their daughter was a run-away.
So, there you have the dilemma. The lawyers knew where the bodies were hidden, and they knew positively that Garrow was responsible for the women’s deaths, while at the same time the parents of the victims and the police did not know these things. Obviously, as any lawyer knows, this information was confidential and could not be revealed to anyone without the client’s consent. Garrow had already consented to reveal it, but only in a plea bargain exchange that would avoid a trial and the need to prove insanity in front of a jury. Belgi, who is portrayed in the book as a hard drinking, adversarial, wild egomaniac, appeared to display little concern for the morality of keeping this information confidential; but Armani, who had young teenage daughters of his own, was genuinely torn and tormented by the situation. Indeed, he traveled up to see a well-known authority on legal ethics at a university law school. This is the only part of the book where a fictitious name is given to protect the confidences of the professor, but I surmise from clues in the narrative that it was likely, ….[removed]…
Mr. Petz, the father of Susan Petz, flew from Chicago to Syracuse to ask Armani if he could tell him anything about his daughter’s whereabouts. The father knew that Garrow was a strong suspect in the killing of Porter and that Armani was Garrow’s lawyer. Armani, faced with a tearful, desperate father, said in essence to Mr. Petz that he had no information to give to him even though Armani knew that the daughter was dead and knew where her body was. This was not easy for Armani to do. Armani, under the unpleasant demands of defending the rights of a loathsome Garrow, and armed with his guilty secrets, became insomniac, started to drink too much, and found his marriage and family life unraveling.
The plea-bargaining session was a disaster. Belgi offered to trade information that would close the file on unsolved homicides in return for the insanity plea acceptance. The prosecution dug out enough information from Belgi in the bargaining session to realize that the evidence that Belgi had included the location of bodies. This outraged the prosecutor who felt that Garrow was a sex pervert but not at all insane, and it was terrible that the lawyers were obstructing justice by not revealing the locations of bodies. He threatened eventually to prosecute the lawyers for this conduct. Many months later, but before the trial of Garrow, the bodies of Petz and Hauck were found, ending the parent’s ordeal of uncertainty and allowing them to start the necessary process of mourning in earnest.
At the trial, Belgi, playing up to the media, and engaging in every trick of the adversary system, basically took over the case from Armani. One example of Belgi’s shamelessness was the month-long jury selection process, in which Belgi had one of his friends, a deaf woman with very good lip-reading skills, sit in the courtroom reading the lips of the prosecutors as they discussed their views on prospective jurors. Not that the ethics of the prosecution were any better. The defense lawyers had their offices broken into, their phones tapped, and they were not given much protection from the continuing series of hate calls and death threats that came their way. After the prosecution case was complete, Belgi, without even talking to Armani about it, or event talking to his client, announced that the first defense witness would be Garrow. Armani nearly fell off his chair. During a brief recess, Belgi persuaded Garrow to testify about his past and admit to a long litany of crimes, perhaps shocking the jury into a belief that Garrow was crazy. Garrow did not want to take the stand but finally did so on Belgi’s orders, and then with Belgi acting more like a prosecutor, Garrow eventually confessed in horrifying detail to seven rapes and three additional murders. Armani could clearly see that the jury was simply being inflamed into anger and horror towards Garrow, rather than turning toward a belief in his insanity. To make matters worse, at the close of the day, Belgi announced to the media, that he and Armani, knew about these other murders long before and that they had confirmed their client’s confessions by viewing the bodies of the victims and had not said anything till now because of confidentiality. Why this statement was made to the press is never explained. Back at the hotel that evening an enraged Armani confronted Belgi and the two lawyers ended up having a full-blown fist fight, leaving both of them bruised and battered to return to the court the next day. Now the intensive media attention of the case shifted from Garrow to the ethical question of the defense lawyers and their knowledge of the bodies.
After Garrow was convicted of first-degree murder, the local prosecutor brought an indictment against Belgi and Armani for obstructing justice and violating a state health law that required reporting of deaths. A petition had also been filed with the New York State Bar Association to have the lawyers disciplined. In the context of a public outraged by the lawyer’s behaviour, Armani’s practice was in ruins as his clients left in droves, forcing him to lay off all his associates and secretaries. His wife and children had left the house to live elsewhere due to the threats on their life. On top of that, he still had Garrow as a client, who now faced indictments for other murders he had confessed to, and also the need to appeal his murder conviction. Eventually, with Belgi still maneuvering around behind his back filing counter charges against the prosecutor, Armani was released from the case when Garrow fired him and then filed a lawsuit against Armani and Belgi for 5 million dollars for allegedly denying him due process in the murder trial. After Armani testified at his grand jury hearing on the charges brought against him, and he learned that the jury had not brought in an indictment, he promptly had a severe heart attack. He now had lost pretty near everything in his defense of Garrow – his reputation, his practice, his friends, his family and now his health.
Over the next years, Armani struggled back despite another heart attack in 1981. Belgi however, was indicted and this indictment was litigated through several levels of courts. The judiciary upheld the lawyer’s conduct on the crucial point that confidentiality in lawyer-client communications outweighed any legal duty to report dead bodies so as to give them a dignified burial. The Bar Society also exonerated the lawyers. Belgi, however, not surprisingly ended up on a prolonged bender and was suspended from the practice of law for trust fund violations. According to the book, he now lives somewhere in Florida. Garrow, who clearly was never insane, by the Canadian standard of cognitive incapacity, continued to make history. In 1978, Garrow, who was still considered to be quite incapacitated from the wounds suffered in his 1973 capture, was transferred to a medium security prison where he could get psychiatric treatment. There his son smuggled a gun to him in the bottom of a barrel of fried chicken, and Garrow, who was supposed to be in a wheelchair, pried open a barred window with a long oak table leg and then scaled an 18-foot wall and escaped into the woods. He had cleverly faked his incapacities. Several days later, Garrow was shot to death by the police after he had shot at one of them upon being discovered.
- COMMENTARY ON THE BODIES CASE
What this book needs is at least a summary treatment of the debate surrounding confidentiality and its limits. Instead of presenting confidentiality as an absolute, if painful value, it would have been better to explore the problem of drawing the line between conflicting values. The value of “trust and truth telling” that confidentiality fosters in lawyer-client relationships on one hand, versus the value of interests protected by disclosure on the other hand. What follows is not a complete summary of such a balancing process, but rather a brief commentary on several of the distinctions that must be considered.
A. FUTURE V. PAST HARMS
One factor in this line drawing exercise that should have been explored in the book is that of future versus past harm. There is a moral difference between remaining silent about harm that cannot be undone, (although there are interests of vindication and accountability for the harm that could be served by disclosure), versus remaining silent about harm that is not yet done, but likely will be done, unless you prevent it. There certainly was future harm in the bodies case that could have been prevented by disclosure, in the sense that the parents had a much longer period of uncertainty to live through, and perhaps many people had some religious or humanitarian sense of the continued sanctity of even dead bodies that was violated by just leaving the bodies exposed to the elements. But, in essence, the harm had already been done. The victims were dead.
On the other hand, if your client tells you about illegal action that he or she wants to do, and you cannot persuade the client to desist from proceeding with the action, and it is action sufficiently harmful to others to cause you concern, you may violate the confidences of the client to the extent necessary to prevent the harm from occurring if possible. However, sometimes the line between past and future conduct is blurred. Some action may have occurred in the past, but the harm is still running into the future in a way that calls for disclosure. If, for example, the lawyers had been told by their client where a body of an alleged murder victim was hidden, and upon arriving at the scene, the lawyers discovered that the person was not dead at all, but still tied to a tree and in need of food and medical attention, could anybody now argue that the lawyers should leave the victim there to starve to death or die of exposure, rather than contacting the authorities and providing immediate help to the victim, even though that disclosure would violate a confidence and likely help the state to hold the client accountable for his deeds.
Yet, some lawyers do take the absolutist position that they would not violate confidentiality even to prevent severe future harm, whether that harm is yet to be initiated or is already flowing from past acts. This places a value on confidentiality far out of proportion to the moral freight it can possibly bear. Certainly, if a group of moral philosophers or even a representative group of the general public drafted a code of ethics for lawyers, they would never place confidentiality on that absolutists plateau. Confidentiality would be conditional at best, not absolute. The moral value in preventing future harm often clearly outweighs the value of lawyer-client confidentiality. The famous scenario of a client confessing to a murder that some other innocent party has been wrongfully convicted of, and is in jail for, or indeed is going to face the executioner for, comes to mind. I just cannot buy the argument that the minuscule incremental cost to possible future trust between lawyers and clients, or the moral distaste of breaking confidence treated as a non utilitarian principle of conduct, can outweigh the basic moral demand to prevent harm to others that stems from our shared humanity and solidarity with others.
Supporters of nearly absolute confidentiality, like Monroe Freedman and others are likely to make the issue into one of individualism versus collectivism, even liberal democracy versus communism, but this tactic is highly misleading. We are not just seeking to uphold collective public interests over against individual interests, but rather what is at stake is often a clash of individual interests. If my client, involved in a messy unjust dismissal case, goes out of my office, gun in hand to kill his former employer, the individual interest of the employer to receive my aid, at least in the form of a warning given my knowledge of his danger, clearly outweighs in moral worthiness the individual interest of the client to have me preserve his confidences, and this is so before any further collectivizing of the respective interests takes place. Indeed, it is the absolutist who paradoxically collectivizes by arguing for the overall social worth of the adversary system, right to counsel, and so forth. The fundamental point is that we must exist in a context in which the ordinary morality of human care for one another simply cannot be displaced by some special role morality of lawyering, unless at a higher level the role morality can be re-grounded into ordinary moral reasoning again.
The difficulty, of course, is to draw the lines around kinds of future harm. When can we blow the whistle? If we can violate confidentiality for any kind of future harm, the cost of trust and openness between lawyer and client could indeed be impaired in systemic ways more damaging to society than the harm prevented by the whistle blowing. A significant part of lawyering is preventative and planning law, where we advise clients on future courses of conduct. This kind of lawyering requires even more candor on the part of clients than advocacy matters do. If clients come to understand that lawyers can blow the whistle on them, they may not confide in lawyers in the first place, on exactly those matters that the lawyer’s advice is most needed and for which the lawyer might dissuade the client from illegal or immoral acts.
The final result of the prolonged debate in America on the limits of confidentiality resulted in the following ABA Model Rules of Professional Conduct, (1983) provision:
Rule 1.6 (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; . . .
Notice how narrow this provision is. First of all, one would expect that if death or substantial bodily harm was at stake, the lawyer ought to have a mandatory duty to prevent it by disclosure, but his provision only makes it discretionary. Secondly, the discretion is very narrow as to the time frame and kind of harm involved – only imminent substantial bodily harm can outweigh confidentiality. If my client is going to commit a huge fraud or theft that will bilk hundreds of people of their life savings, I cannot say anything, and if I do, I could be subject to charges of professional misconduct for breaching this provision. This is simply far too restrictive, compared to the broad discretion given under the Canadian Code to disclose to prevent any crime, without restricting the type of crime. Thirdly the kind of act causing the harm must be a criminal act rather than simply an illegal act, like a breach of contract, or commission of a tort, or a breach of some regulatory statutory provision. This too, is far too restrictive. What is significant from a moral point of view is the wrongful harm to be done by my client, not the vague distinction between criminal and other law. Indeed, I might support a disclosure discretion that included immoral acts causing severe harms and not just illegal acts.
But to widen the net of possible wrongs that lawyers can prevent by disclosure of confidences, requires us collectively to stop seeing the moral duty of lawyers as focused exclusively on the paying individual or institutional client, and start seeing that we also have moral duties to third parties who are not our clients but are affected by our client’s conduct. The exclusive client centered view of professional ethics is actually no ethic at all, but rather an escape from having to take ethics seriously by focusing only on one force in an interdependent, interactive world.
B. EVIDENCE V. INFORMATION
Another important distinction is that the ethical rule of confidentiality, like the evidential rule of privilege, does not apply to the possession of evidence in physical form as opposed to the possession of information supplied to the lawyer by the client. If my client, who has just been involved in an armed robbery, deposits a gun on my desk and then departs, I cannot keep the gun and argue that to disclose it to the authorities would violate a client confidence. Any communications made about the gun, and even the identity of the person giving it to me may be confidential, but the gun itself must be handed over to the appropriate authorities, even if that may eventually lead to the arrest or conviction of the client. This is so, because the client has the conditional right to have his communications with me held secret, but he does not have the right to use confidentiality as a way of removing evidence of the act from the authorities. We may as a lawyer be the repository of guilty secrets, but we are not the repository of physical evidence.
The bodies were very definitely physical evidence. Arguably, however, despite Belgi’s clearly wrongful moving of the head of one of the bodies, the lawyers never took possession of the evidence, but only confirmed the existence of it. They did not, therefore, shelter the evidence from the authorities in any way, but rather protected the client’s legal right to remain silent by remaining silent themselves. The right to remain silent would not mean anything if lawyers had a duty or a discretion to tell the authorities the confessions made to them. Perhaps something is wrong with the way that the right to remain silent operates in the criminal justice system, but that is a topic for another day.
C. CONFIDENTIALITY AND CANDOUR
But what is it that bothers many people when told of the bodies’ case or similar stories involving lawyer’s ethics? I would venture to say that it is not the principle of confidentiality at all. Rather it is what lawyers do, or apparently do, despite what they confidentially know. It is not the passive keeping of secrets that bothers people, but rather the active helping of clients to avoid disclosure and accountability, by trying to rearrange reality in the courtroom in ways that run counter to what the lawyer actually and confidentially knows is the case. While it is true that we have an ethical principle that limits the defense of the client who confesses to the lawyer, and we have serious problems that can arise between confidentiality and the rule against presenting perjury, at bottom the art of advocacy still sometimes involves presenting a theory of the case with all the sincerity that we can muster, that we just plain morally know is false. It is because of this active participation on our part in suppressing the truth or distorting it, that we are burdened in the public eye with a kind of moral complicity with our client’s ends.
The problem is that commentators on this subject assume that confidentiality is something that must conflict with candour. To preserve confidence and yet play the game of the adversary system requires you to sacrifice candour to the court and others. However, I do not understand why Armani could not have told the father of one of the dead women that, “I cannot tell you anything because everything told to me by my client is confidential,” rather than saying in effect, “I have nothing to tell you.” Similarly, I do not understand why we cannot substantially strengthen the ethical duty of candour to the court and others. As I see it, such a duty does not conflict with confidentiality at all. You may have a right to my silence, but you do not also have a right to any advocacy from me that clearly is inconsistent with what you say to me.
Paradoxically, in the bodies case this sort of active duplicity was largely absent, because instead of suppressing the truth or distorting it, the lawyers at trial actually brought it out, albeit in an attempt to receive an insanity verdict. While sometimes crude and lacking in coherence, the substantive principles of criminal liability – the various degrees of mental culpability, justifications, excuses and so forth, are largely justifiable moral principles for determining blameworthiness. It is the evidential and procedural aspects of the adversary system, not substantive criminal law, that are at the root of a pervasive belief by the public that criminal trials are little more than theatre in which tactics count for more than truth. This is simply to say that it is not confidentiality that is the problem, but the false dichotomy we have systematically constructed that pits confidentiality against candour, as if the client’s right to confidentiality translates into some kind of right and duty to be duplicitous so as to not reveal a confidence.
D. JUSTIFICATION V. RATIONALIZATION
What is most peculiar about this subject is the incoherence of the arguments used to support confidentiality. First of all, there is the client honesty argument. Supposedly the prime factor in favour of confidentiality is that the client will tell you the complete truth from his or her point of view so that you can more effectively advise and represent the client. Clients who hold back on you often mistakenly believe that some facts hurt them rather than help them. Yet lawyers who support confidentiality on these grounds often do not want to hear from the client at all. They prefer the ethical freedom of being agnostic about facts. “What is truth?” they ask as Pilot did of Jesus. Clients lie, of course, or change their story between interview and witness stand, and you have no way of knowing anything anyway. Thus, truth is simply whatever fiction results from the trial process not something that stands independently from it. Clearly then the supposed honesty justification for confidentiality is just a rationalization as we in fact adopt an ethic of cynicism about facts.
Secondly, there is the client autonomy argument. Confidentiality preserves the autonomy of the individual client as against other countervailing interests. Yet this too is a rationalization because in fact lawyers often manipulate and dominate the client. The bodies’ case is a good example. It was not Garrow’s wish to confess to the lawyers, he again was manipulated into it by the lawyers. So, while we represent to the public the importance of lawyers respecting the autonomy of the client, we in fact dominate, control, and coerce clients in all sorts of ways that we are sometimes not even aware of, given our professional power over clients.
Thirdly, there is the client privacy argument. Yet the profession that is so comfortable fighting disclosure of client secrets to affected third party interests, is the same profession that loves to talk. Go to the bars, the cocktail parties, the tennis courts, or the jogging tacks, or whatever, and listen to lawyers talk shop to one another and others. I do not at the moment have so called guilty secrets to share with a fellow lawyer, but I do have personal information about financial and family matters that I prefer to control, simply because it is personal. The irony of it is that I do not trust most lawyers or their staff to in fact keep that information confidential in a strict sense.
So that is my conclusion, we need less confidentiality and at the same time, much more.
