The Arbery Video: Alan Tucker Chose Poorly

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?

 

33 thoughts on “The Arbery Video: Alan Tucker Chose Poorly

  1. Black Bellamy

    Chapter 1.
    Where Alan Tucker Contributes To The Cause And Becomes A Great Hero.

    “‘What if he had just froze and hadn’t done anything, he wouldn’t have gotten shot.'” — Alan Tucker

  2. Joe O.

    I felt a shock run through my body when I read the words “informally consulted.”

    1. Edward

      I’m an attorney, albeit a civil attorney, and i completely agree with you. I’m surprised that the media and others are not questioning the ethical ramifications of Alan Tucker releasing this tape. Unethical behavior for an attorney, in my opinion. He should be reported to the State Bar.

  3. Chris Van Wagner

    This post woke me up fast. It should grab the attention of every defense lawyer. Presumably, this disclosure was not one to which the accuseds gave informed consent, although that fact – of informed consent to disclosure – would itself be confidential. One presumes the accuseds have an ethics beef against Tucker if they did not give informed consent.

    While one can imagine a scenario in which a less than savvy lawyer is approached by two people in this situation who think that they are being “defamed” (client-defined defamation) by rumors or reports of “two good old boys” committing cold blooded murder and want that “slander” corrected. But Tucker said he was neither seeking exoneration nor conviction, just “getting the truth out there.” Tucker also said he was “consulted,” but not retained to continue representing their interests. (They have conflicting interests anyway so it hardly seems like he could represent both.) The ethics tomes are replete with accounts of lawyers who did or did not reveal confidences to “get the truth out there.” There was the famous buried bodies case upstate, involving Garrow and his two attorneys who held the deep dark secret of the bodies’ location until their client revealed it; they faced an obstruction investigation by the local sheriff and an ethics complaint by the murder victims’ family.

    And there was also the equally renowned case of a California lawyer (Mecca v. McClure) who anonymously revealed the location of the murder victims during the case, and later faced all sorts of post-case litigation, on habeas and ethics claims. These are things that when we learn them in confidence, we swallow hard and bite our tongues – as we must. Most folks already despise us; a little more spite for extra measure can’t hurt, right? But Tucker chose not to be despised, it seems, so much as be a “good neighbor” even though he may also have unwittingly chosen to stop practicing law. Time will tell. Nobody loves us, everybody hates us, that’s why we eat worms for dinner.

    1. SHG Post author

      If the info is correct, others had the video and so it wasn’t exactly a confidence. But they were still his clients, and it was still his duty not to engage in affirmative acts to harm their interest. If someone else disclosed the video, then the “truth” comes out, but it’s not his place to do so, and it’s affirmatively his place not to do so.

      Also, I put some paragraph breaks in your comment to make it more readable.

  4. MichaelE

    I apologize for the stupid non-lawer question I am about to ask.

    Is there a way Tucker could have gotten the truth out there without violating his ethical responsibilities?

    Could he have contacted the media and said “I cannot give you the video myself, but if you talk to [person] they may give you some very interesting footage.”?

    1. rsf

      A better question is to ask yourself what you would expect out of your lawyer were you to have one. Imagine, you are in the worst situation of your life, whether civil or criminal, and you are speaking to a lawyer. That lawyer is the one person you need to be able to trust to help you navigate this situation. You are placing your future in your hands. Then, this lawyer leaks some of what you have discussed to the press and you get lambasted by the media.

      Doesn’t feel great does it? That is why we have such strict rules about this type of behavior. Our highest duty is to the client. Otherwise, we are useless.

  5. miketrials

    Isn’t all of this agita a bit ex post facto and mostly overwrought? If Tucker believed the video wouldn’t harm the clients, rather it would help them, then how is it even close to an ethical violation? To quote Scott’s post ” ‘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.'” That’s entirely immaterial to me, and perhaps to some others who subscribe to this blog, but maybe not for some of the locals who will sit on the jury. Consider that Tucker wasn’t seeking to get the “truth” out there, rather he could be too smart by half, and may have been attempting, and perhaps successfully, the sway the venire. None of us (??) live in Glynn County, GA, but we seem to have forgotten that next door in Florida you can stalk an unarmed man while armed, assault and then kill him, and walk. Is GA so different? Is there a stand your ground law? Can’t rightly criticize Tucker for sellin’ when you only need one customer in 12.

    1. Dan

      That’s a pretty dishonest recounting of the Trayvon Martin case. And Stand Your Ground was as irrelevant to that case as it is to this one.

    2. SHG Post author

      So get his client arrested and prosecuted to sway the venire. Galaxy brain level strategy.

      1. Dan

        Well, what he was intending to accomplish, and what he actually accomplished, aren’t necessarily the same thing–but still, it’s hard to imagine a scenario in which he reasonably believed release of the video would benefit his clients (whom he may have failed to realize were his clients).

      2. miketrials

        Yup. Not so bright at all. See it every day from esquires all across the spectrum, some of who have last names like AUSA and Your Honor. But that don’t make it unethical, which was the specific point of your post, as far as I understood. Didn’t want to get off point.
        In fact, under Strickland most every court’s gonna bless this as a strategic decision. Then again, so was invading Russia.

    3. Miles

      Whether Tucker’s “explanation” is legit or post hoc, his duty is not to harm his client. Your suggestion that revealing a video of your client killing a guy inures to his benefit is off-the-wall nuts. Granted, Tucker may be nuts, or just terminally stupid, but are you arguing that his defense is he’s too stupid to breathe?

      1. Daybreaq

        “The video speaks for itself,” Tucker said. “What happened, happened. I don’t have an excuse for it. I can’t explain. Other than, we always say, ‘What if he had just froze and hadn’t done anything, he wouldn’t have gotten shot.'”

        The above is a statement he made to “Inside Edition.” I don’t know if anyone would call it a “defense;” but it does appear Tucker is too stupid to breathe. (Figuratively, of course.) It appears to me he really did believe the video was favorable towards the McMichaels. So here are my stupid non-lawyer questions: Is there a distinction to be made here between a legal ethics violation and legal malpractice? Does it matter?

        1. SHG Post author

          This is a law blog, for lawyers and judges, not a legal Q&A blog, k? There are places to ask stupid non-lawyer questions. This is not one of them.

    4. DaveL

      If Tucker believed the video wouldn’t harm the clients, rather it would help them, then how is it even close to an ethical violation?

      Have you ever heard of a little essay called The Ethics of Belief by William Clifford? I don’t want to bore you with details, but an honest belief isn’t necessarily a defense for unethical conduct. That’s especially true when that belief, however honest, is somewhere between professionally incompetent and flat-out underpants-on-head delusional.

  6. John Barleycorn

    Why not start filming a pod-cast in your den on Saturdays?

    You could even get some cool sweaters and sneakers like Mr. Rodgers had.

    I will sprong for the land of make-believe puppets!

  7. Joseph Masters

    Alan Tucker has changed his tune about why he leaked the video. There is an article in First Coast News that makes it clear Tucker admitted he leaked the video before the GBI arrested the McMichaels. Moreover, the two defendants were reported to still be referring every inquiry to Tucker until their arrests…as if they had retained him.

    Additionally, Tucker spoke to Inside Edition about “trying to stop a riot,” and how Arbery could have prevented his death if he had simply “froze” when confronted by a man wielding a shotgun. The reason why anyone would believe this as the video shows a shot was fired prior to the struggle remains elusive.

    Understandably Tucker is not representing the McMichaels now that they face murder charges, but the differing accounts from Tucker before and after the arrest of his clients might indicate he (or possibly they–both Tucker and the defendants) believed the video would exonerate the McMichaels. It is hard to see how anyone defending those two men would think that, but the timing seems to indicate Tucker sent the video to the Brunswick radio station after the district attorney announced he would ask for an indictment after the grand jury reconvenes in June.

    Either way, by all accounts this video was shared with the Glynn, Ga police by the man who filmed it back in February–Tucker did not give prosecutors more evidence than they already have. Rather, he (possibly with the approval of the McMichaels) only released the video for public consumption.

    Why on Earth would he do that unless he thought the video was exculpatory?

  8. miketrials

    Masters got it right. “Why on Earth would he do that unless he thought the video was exculpatory?”
    That the question is posable — that the video well could be, and could be thought to be, exculpatory — by itself might vitiate any notion of an ethical violation in this. Malpractice? Maybe. But swinging for the fences is what we do sometimes.
    Being wrong, as Tucker may well have been (again, don’t underestimate a Georgia jury’s role here) doesn’t make it unethical. Galactically stupid, as suggsted, perhaps. But they are wholly different beasts with little intersection.

    1. SHG Post author

      Oy. Asking a rhetorical question isn’t an answer, and this particular one implicates two logical fallacies, question begging and post hoc ergo propter hoc. There is a level of stupid below which a lawyer is not entitled to go no matter what words he throws out to justify his idiocy. Have you considered that you (and Joseph, one of the dullest knives in the SJ draw) see less of a problem than others (although even you grasp that this is utterly moronic) because your bar for rational decision-making is substantially lower than other lawyers?

      “Swinging for the fences” is the sort of empty rhetoric that could be used to justify anything, no matter how galatically stupid, which means there is no limit whatsoever to how bad a lawyer can be without trangressing his ethical duty not to harm his client. Rationalization is easy, but there has to be a floor below which no one can go and still be entrusted to represent other people.

      And use the reply button. You’re not special.

  9. Esky Wire

    First, Alabama lawyer here,

    Second, a few questions to help me out with Tucker here:

    Who shared the video with the police, the guy who shot it or the accused with whom Tucker is tied in a/c relationship?; If it is one of the consulting parties (client), then did they waive privilege by sharing with authorities?

    Clearly, a lot of assumptions by me,

    But, like most here, I agree, he is ethically prohibited by the RPC.

    1. SHG Post author

      The person who shot the vid turned it over to cops before he gave it to Tucker, but the cops didn’t release it. This is all in the post and links, so not sure what made you ask when the answer is already in there.

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