Robin realized that any discussion of the rules governing the attorney-client privilege would fall on deaf ears, so she changed the subject.
“The judge will be able to see you on TV, so I’m going to get you a suit so you’ll look nice. You’ll only be visible from the chest up, so no pants or shoes, and the authorities see ties as a no-no because they can be used as a weapon or for suicide. But you’ll have a nice shirt and jacket.”
Jose smiled. “I haven’t worn anything decent in thirty years. It will seem strange.”
“Let’s hope that this won’t be the last time you get to dress up.”
The courtroom in the Mark O. Hatfield United States Courthouse where Jose’s case was going to be heard had been completed in 1997. Despite the attempt to decorate it with soft, red woods and a tapestry depicting Oregon history, it tilted toward function over form. The state-of-the-art technology in the newer courtroom allowed Jose at OSP and Frank Melville at Black Oaks to participate remotely.
The Honorable Richard Davies, an African American, hadbeen assigned the case. Davies was only forty-two, but he looked older. He wore wire-rimmed glasses, had a slight paunch and sloped shoulders, and walked with a cane. Davies had been a corporate lawyer with one of Portland’s larger law firms. He was new to the bench, and no one had a good read on him yet.
Mary Kim, a veteran litigator in her early fifties, was the assistant attorney general who had been sent to represent the state of Oregon. Robin had gone up against her before and expected her to be thoroughly prepared.
“I’ve read your petition and accompanying memorandum of law and affidavits, Miss Lockwood,” Judge Davies said. “This case appears to have many complex legal issues.”
“I don’t think it’s that complicated, Your Honor,” Robin replied. “At the heart of the case is the fact that Jose Alvarez has been rotting on death row for thirty years for a crime he did not commit. We’re asking you to hear evidence that will convince you to let him go home.”
Davies smiled. “That was nicely stated, but it avoids the problem of navigating a winding procedural road to arrive at that destination. For example, you concede that you can’t bring your claim in state court because the statute of limitations has run. Why do you think this court has jurisdiction to hear the case?”
“Mr. Alvarez was accused of killing Margo Prescott. The key witness for the prosecution in Mr. Alvarez’s trial was Archie Stallings. A few years after Mr. Alvarez was sentenced to death, Mr. Stallings was arrested and charged with rape. The detectives who investigated Stallings had no trouble finding several women who claimed he was a sexual predator.
“One woman, Debra Porter, was a close friend of Margo Prescott. She told the police that Stallings had pestered Prescottfor sex and had tried to force her into a bedroom at a party. The person who saved her was Jose Alvarez.
“If Debra Porter had testified at Mr. Alvarez’s trial, she would have damaged Mr. Stallings’s credibility and would have had a major impact on the verdict. More important, she was easy to find. The fact that Mr. Alvarez’s trial counsel did not find her and another woman who claimed that Stallings had molested her is a strong argument that Mr. Alvarez was denied competent counsel in violation of the Sixth Amendment right to counsel.
“These facts and our contention that Mr. Alvarez is completely innocent give this court the right to hear the case.”
“Mrs. Kim?” the judge said.
“Mr. Stallings wasn’t investigated until several years after Mr. Alvarez was convicted, so we don’t know what the women would have said if they’d been interviewed when Mr. Alvarez was tried. I don’t think you can fault Mr. Alvarez’s trial attorney for not discovering them.”
“What about Debra Porter?” Judge Davies asked. “She was a friend of the victim. You’d think Mr. Alvarez’s lawyer would have known about her. If she’d been interviewed, can’t we assume she would have given testimony that could have been used to impeach Mr. Stallings?”
“Well, yes, if you assume that she would have told the defense attorney what she told the detectives. She might not have wanted to help the person who the police were convinced murdered her friend.
“Which brings me to the biggest problem with Mr. Alvarez’s case,” Kim said. “There is no new evidence before this court that would clear Mr. Alvarez. All we have is an affidavit from Mr. Melville stating that he is in possession of some kind of evidencethat would bear on the case, but can’t tell anyone about it because it was an attorney-client confidence. My research has led me to conclude that the privilege exists after death. So, Miss Lockwood hasn’t presented any evidence that Mr. Alvarez is really innocent.”
“That is troubling, Miss Lockwood. Mrs. Kim’s argument has a lot of merit.”
“It’s our position that Mr. Melville can reveal the contents of the confidential communication he had from his client,” Robin said.
“Enlighten me, Miss Lockwood.”
“There’s an exception to the attorney-client privilege that would permit Mr. Melville to testify, and we believe it applies here. If a confidence involves a threat of future harm to an individual, an attorney is permitted to reveal it. For example, if Mrs. Kim hired me and told me in confidence that she was going to shoot you after this hearing, I would be permitted to reveal the confidence to prevent future harm coming to you.”
“That exception doesn’t apply here,” Kim interjected. “The threat has to be an imminent one.”
“I can’t think of anyone who is in more imminent danger than Mr. Alvarez,” Robin countered. “He’s on death row and could be executed at any time.”
“That’s not true,” Kim said. “Only two people have been executed in Oregon since the death penalty was reinstated in 1984. That was in 1996 and 1997. I don’t think Mr. Alvarez is in any danger.”
“Neither were federal prisoners until Donald Trump was elected president. There was wholesale slaughter at the end of his term. We have an election coming up. Who knows what the next governor will do?”
“None of us,” Judge Davies said, “and I’m not going to base my decision on a forecast of the result of the next election. This case presents several complicated and serious issues, and I’ve concluded that I need to hear what Mr. Melville has to say in order to resolve them. So, I’m going to hear his testimony in my chambers without counsel present.”
“I object, Your Honor,” Kim said.
Davies smiled. “I assumed you would, but something Miss Lockwood said has touched me. We lawyers get so wrapped up in technicalities that we sometimes forget the real-world consequences of what we do. So, I ask you, Mrs. Kim, if Jose Alvarez is really, truly innocent, don’t you want to set him free?”