A Lawyer's Client was Abused by his Father. But he also Paid the Lawyer's Fees. Now the Client is on Death Row. | Opinion

The US Supreme Court in Washington, DC, on January 22, 2019. JIM WATSON/AFP/Getty Images

Two days before trial, the attorney representing Nicholas Acklin, a young man facing the death penalty in Alabama, met with his client's mother. From her, he learned of critical evidence that, if presented, might save his client's life: as a child, Mr. Acklin had suffered severe physical and emotional abuse at the hands of his father.

The abuse of the young Mr. Acklin included beatings and threats at gunpoint. When angered, Mr. Acklin's father held Mr. Acklin down, pointed a gun at him, and threatened to kill him. Mr. Acklin's father also abused and terrorized Mr. Acklin's mother and siblings. Mr. Acklin's attorney realized that the abuse evidence was important. It was exactly the type of evidence that the U.S. Supreme Court has recognized can be critical in persuading a jury to show leniency and vote for life instead of death.

But Mr. Acklin's attorney also knew that presenting the evidence would hurt his chances of being paid for his services because Mr. Acklin's father—the perpetrator of the abuse—was paying his legal fees. When the father found out what the attorney had learned from the mother, he made it clear that if the attorney disclosed his abusive conduct, he would be "done helping with this case." The attorney followed the father's wishes and never disclosed the abuse to the judge or jury.

Mr. Acklin's Sixth Amendment right to counsel included the right to a lawyer who acted in the client's best interests and no one else's. Although Mr. Acklin's attorney put his own interest in being paid, and the father's interest in concealing his abusive conduct, ahead of his duty to his client, the Alabama state courts let the death penalty stand. The Supreme Court should review the case and ensure that Mr. Acklin is given a new sentencing hearing with a lawyer who puts Mr. Acklin's interests first.

As a group of legal ethics scholars wrote to the Court, this is not a close case where reasonable minds can differ. Under the rules of professional conduct in every state, Mr. Acklin's attorney "labored under an acute and obvious conflict of interest that resulted in a denial of [his] Sixth Amendment rights." Mr. Acklin's attorney was obligated to find another way of getting paid, to obtain Mr. Acklin's informed consent to the attorney's conflict between his own self-interest and his loyalty to Mr. Acklin, or to seek to end the representation. He did none of these things.

The situation only got worse from there. Within 36 hours of learning about the abuse, Mr. Acklin's attorney had Mr. Acklin sign a typed statement that he did not want evidence of the abuse presented at trial. The attorney did not tell Mr. Acklin about his own divided loyalties or advise Mr. Acklin of his right to the advice of counsel who was not self-interested. The attorney thus could not give Mr. Acklin disinterested, conflict-free advice about whether to introduce evidence that his father abused him.

The Alabama courts used that typed document to justify its conclusion that the attorney was simply following Mr. Acklin's wishes. That conclusion is completely untenable. In agreeing to forgo evidence that might persuade a judge and jury to spare his life, Mr. Acklin never got the disinterested legal advice to which he was constitutionally entitled. Nor did he make a knowing decision to give up that right, because he was never told about his attorney's conflict and how it might affect his attorney's advice and trial work.

Compounding the problem, Mr. Acklin's attorney called Mr. Acklin's father to the stand at the penalty phase to testify falsely before the jury that Mr. Acklin's childhood was supportive and loving. The jury voted 10 to two in favor of the death penalty, the minimum number of votes needed to recommend death in Alabama. If Mr. Acklin's attorney had presented the evidence of childhood abuse, one more juror might have voted for a life sentence.

Then Mr. Acklin's attorney called Mr. Acklin's father to repeat his false testimony at the sentencing hearing before the judge, who expressly relied on the father's testimony, citing the absence of family dysfunction or abuse as a reason to accept the jury's recommendation. In short, Mr. Acklin's attorney followed the wishes of the third-party who paid his fee and abandoned his actual client, and the result was a death sentence.

Of course, the Supreme Court reviews only a fraction of the cases brought before it. If it heard every criminal case – even every death penalty case – involving a possible miscarriage of justice, it would have little time for anything else. But it should hear Mr. Acklin's case, which involves more than simple constitutional error. If the Supreme Court does not hold the state courts and state trial lawyers accountable in cases like this one for their utter indifference to constitutional guarantees and professional norms, how can we ever hope to have fair trials in criminal cases involving life and death?

Bruce Green is a professor at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics, and a co-signer of an amicus brief in support of Petitioner Nicholas Acklin.

The views expressed in this article are the author's own.