The marriage of Charles Clark and his wife did not end happily. Their divorce became final on March 25, 1952. Unfortunately for Mrs. Clark, that date was significant for another reason. As Judge William A. Morrison of the Texas Court of Criminal Appeals explained: “The offense is murder; the punishment, death.”
It seems that on that March 25, someone shot (the former) Mrs. Clark to death with a .38 caliber revolver. The evidence showed that Mr. Clark purchased just such a gun ten months prior to the killing.
There was other evidence that connected Clark to the crime, most damningly the testimony of a woman named Marjorie Bartz, a telephone operator in the city of San Angelo, Texas. (For those born in, oh, the last 50 years or so, at one time, telephone operators — usually women — had to connect many phone calls physically, using a switchboard.) On the morning of March 26, Miss Bartz received a telephone call from the Golden Spur Hotel. She recognized Clark’s voice (San Angelo being a small town) and placed a call for him to Jimmy Martin, an attorney in Dallas.
Contrary to the rules of the telephone company, Miss Bartz listened to the conversation between Clark and Martin. It went like this:
Clark: “Hello, Jimmy, I went to the extremes.”
Martin: “What did you do?”
Clark: “I just went to the extremes.”
Martin: “You got to tell me what you did before I can help.”
Clark: “Well, I killed her.”
Martin: “Who did you kill; the driver?”
Clark: “No, I killed her.”
Martin: “Did you get rid of the weapon?”
Clark: “No, I still got the weapon.”
Martin: “Get rid of the weapon and sit tight and don’t talk to anyone, and I will fly down in the morning.”
The telephone number Bartz dialed matched Martin’s telephone number.
Clark was convicted and, as Judge Morrison said, the penalty was death. Clark challenged his conviction on the ground that the trial judge should have excluded the Bartz testimony. Not only had she violated the telephone company’s policy, but she listened to a confidential attorney-client conversation.
Judge Morrison conceded that his court could not find a case exactly like this one; at the time, telephone technology was less than 100 years old. But he first pointed out that under a general legal principle, otherwise admissible evidence is not kept out of court just because it was obtained by eavesdropping.
On the other hand, there were good reasons to exclude the testimony, too, because the law protects the confidentiality of certain relationships. People can talk candidly with a lawyer, clergyman, or psychotherapist only if they know that conversation cannot be revealed later. Such relationships would be destroyed if the confidentiality were lost just because someone secretly listened in. And in a number of cases, courts had ruled that confidential documents did not lose their confidentiality if misdirected to the wrong party.
In the end, though, Morrison’s court decided that the Bartz testimony had correctly been admitted into evidence. The court pointed out that there was no evidence Clark had consulted with Martin except in the one overheard conversation. And in that conversation, Martin committed one of the great sins of the criminal defense lawyer.
While attorney-client communications are cloaked with the greatest secrecy the law provides, there are certain things attorneys are forbidden to do. Despite what was portrayed on “Breaking Bad,” a conversation is not privileged if a lawyer helps someone plan a crime, evade the police, commit perjury — or destroy evidence. In fact, for that reason, many defense lawyers refuse to hear the client’s side of the case. If the client admits to committing the crime, the lawyer cannot later let the defendant commit perjury. If the defendant insists on doing so, the lawyer is supposed to withdraw from the case.
Martin, of course, went far beyond this. Not only did he advise Clark “get rid of the weapon,” it was Martin’s idea in the first place! The court stated that it might have reached a different conclusion if the case had been one where the Clark sought “legitimate advice from his attorney in preparing his legal defense.”
So there are two lessons to be learned here. One is that an era has passed away. Telephone operators place few if any calls today. So no Miss Bartzes will go court to testify these days.
At the same time, the technology of eavesdropping has become far more sophisticated. A high school student with a C+ in physics can buy electronic gear allowing the assembly of listening devices even the F.B.I. didn’t have in 1952.
So lawyers should still be very careful what advice they give out.
Frank Zotter, Jr. is a Ukiah attorney.
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