Free Manifest Injustice by Barry Siegel Page B

extremely dangerous with severe homicidal tendencies. He has a tremendous amount of uncontrollable hostility and resentment. He demonstrates marked disturbance of thought processes with delusional thinking and paranoid ideations plus tremendous amount of fantasy.… In my opinion he is insane. I strongly recommend that he be committed immediately to an appropriate facility. His prognosis is very poor.” Rubinow’s diagnosis: “Schizophrenic reaction, paranoid type, severe with strong homicidal tendencies.”
    The same day he wrote this letter to the judge, Rubinow, deeply concerned, called the U.S. marshal’s office in Phoenix. Valenzuela, he wanted personnel there to know, is “in an extremely dangerous condition and could kill at any time.”
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    After eventually pleading guilty to second-degree murder, Valenzuela ended up bouncing from one federal penitentiary to another, no one wanting him, everyone finding him “highly rebellious” with “poor institutional adjustment” and “homicidal thoughts.” He refused to work, got caught with contraband knives, threatened guards and broadcast his intention to kill fellow inmates. He spent most of his time in administrative segregation, prison officials unable to justify releasing him into the general population. By early 1973, he was in segregation at Leavenworth, where authorities vainly tried to transfer him elsewhere because of his “violent background” and “threatening, hostile behavior.” Despite a special plea from the Leavenworth warden, who expressed concern both about “safety” issues and the “general morale” of his institution, no other penitentiary would take Valenzuela. Leavenworth finally returned him to the general population in June 1973. There—as they’d all feared—Valenzuela engaged in one last fight. On November 8, 1973, he arrived at the prison hospital with multiple stab wounds. The duty medical officer declared him dead at 8:40 P.M.
    Bill Macumber’s arrest for the Scottsdale murders came ten months later. Thomas O’Toole, hearing the news and learning of Valenzuela’s death, went to talk to his supervisor, Tom Karas. Tom, he said, Macumber’s defense team needs to know. They need to know .
    They both understood the obstacle: Despite Valenzuela’s death, what he’d told O’Toole remained protected by attorney-client privilege, part of the even broader ethical duty of confidentiality, among the most fundamental tenets of the legal system. Lawyers, as advocates, have to keep confidential what they hear from clients. Clients have to be able to disclose everything, good or bad, without fear of retribution, even if that means a lawyer will sometimes obscure the truth; the privilege by its nature at times protects wrongdoing. Trade-offs abound, of course. O’Toole knew that lawyers and judges regularly carved out exceptions to confidentiality—such as when an attorney believes his client is going to kill someone. (Also when the attorney’s own interests are at stake: Lawyers are allowed to reveal confidences to defend their reputation or collect a fee.) Yet no such exception existed when it came to helping a potentially innocent defendant in a murder case, not even if the client has died. The dead client’s interest in keeping his disclosures private trumps the defendant’s constitutional right to present his defense.
    Still—the law has always allowed multiple interpretations. O’Toole felt compelled to explore his options. In late September 1974, he and Tom Karas presented a hypothetical question to the State Bar of Arizona’s standing ethics committee: In a situation where an attorney has heard a murder confession from a client who later died, and has since learned that another person has been charged with that murder, may the attorney disclose the information to the prosecutor and defense attorney?
    In a written opinion (“Arizona Ethics Opinion No. 74-30”) delivered on October 2, the state bar’s