After the video of the murder of Ahmaud Arbery went viral, the arrests of the two men in the video seemed certain.
The men, Gregory McMichael, 64, and his son Travis McMichael, 34, were each charged with murder and aggravated assault and booked into a jail in coastal Glynn County, Ga., where the killing took place, the Georgia Bureau of Investigation said.
Of course, it’s not that the video wasn’t available to the police, prosecutors and GBI before it went viral, but there was no national outcry for action. While the person in the car who recorded the video cooperated with police, readily gave the video to anyone who wanted it, no one thought to make it public until Brunswick, Georgia, lawyer Alan Tucker.
But in a twist emblematic of the small-town politics that have defined the case, that source turned out to be a criminal defense lawyer in town who had informally consulted with the suspects.
The lawyer, Alan Tucker, said in an interview on Friday that the video had come from the cellphone of a man who had filmed the episode and that he later gave the footage to the radio station. Mr. Tucker’s role was confirmed by Scott Ryfun, who oversees the station’s programming.
There is, of course, no such thing as “informally consulted,” it being one of those peculiar descriptive phrases that reporters use because they have no grasp of how law works. Either a lawyer consults or doesn’t, but there is no requirement that someone make an appointment, say in a serious voice, “this is a formal consultation” or hand over a ten dollar bill.
Tucker was consulted, and that’s all it takes for the attorney/client relationship to exist. That’s when the duty to protect client confidences arises. That’s when Tucker is no longer a free agent to do whatever he feels is right.
Asked why he had leaked the video, Mr. Tucker said he had wanted to dispel rumors that he said had fueled tension in the community. “It wasn’t two men with a Confederate flag in the back of a truck going down the road and shooting a jogger in the back,” Mr. Tucker said.
“It got the truth out there as to what you could see,” he added. “My purpose was not to exonerate them or convict them.”
And indeed, it got the truth out there. It also got the McMichaels busted for murder. But it wasn’t Tucker’s job to get the truth out there. Much as his revelation might have served the greater good, he doesn’t enjoy that option to put the greater good ahead of the interests of his clients. And despite the “informal consultation” nonsense, they were his clients.*
There are many who would praise Tucker for his action in revealing the video to a radio station because it forced the arrest and prosecution of the McMichaels, who might very well have gotten away with murder otherwise. But for this lawyer, a jogging black man’s killing would have gone unnoticed. That would have been a terrible travesty.
So raising the issue of Tucker’s duty to the McMichaels will offend, if not outrage, those who believe that there is a higher duty, whether for a lawyer or any human being, to right wrongs and prevent a terrible injustice from occurring. And, without a doubt, it would be a terrible injustice if Arbery’s murder was swept under the Georgian rug by good ol’ boy cops and prosecutors, old pals with the senior McMichael and not so much with this black kid whose 26th birthday just passed.
But Alan Tucker isn’t just some random guy entitled to do whatever he feels is just. He’s a lawyer. He’s a lawyer who engaged with clients, no matter how formal the circumstances or how little the pay. And his decision to send the video over to a radio station so that “the truth” would come out is why the McMichaels are wearing jumpsuits.
No one is crying about the McMichaels being charged with murder. But Tucker gave up his “right” to tell the truth when he consulted with the McMichaels. Most people will argue that Tucker had a higher duty, a duty to the truth, a duty to justice, than his duty to his clients not to do what would almost certainly result in their arrest and prosecution.
That, however, isn’t how criminal defense works. Our highest duty is to the client, no matter how awful he may be. We don’t do justice. We defend our clients.
Alan Tucker may well come out of this as a great hero to the cause, having revealed to the world that Ahmoud Arbery was murdered by the McMichaels, and causing them to be arrested and prosecuted rather than hidden in some dead file storage room in Georgia. But as a criminal defense lawyer, he made the wrong choice.
*Remember when formerly-respected Harvard law prof Larry Tribe took the consultation call from some New York real estate guy and, a few years later, spilled the beans on twitter?