Söring Should be Grateful to Richard Neaton

Neaton could spill the beans, but he hasn't. Yet.

Would this guy have done a better job?

Söring should be grateful to Richard A. Neaton? The bumbler whose incompetence led to Söring’s unjust conviction? Team Söring will splutter with outrage . But it’s true. Let me explain why.

Who Were Söring’s Two Trial Lawyers?

First, a disclaimer: Nothing in this post is legal advice of any kind. This post consists solely of opinion and commentary.

At his 1990 trial, Jens Söring was represented by two experienced criminal-defense lawyers. They were private lawyers he and his family paid for (perhaps with some contribution from the German government). The first was Richard A. Neaton, a lawyer then licensed in Michigan but allowed to practice in Virginia as long as he was accompanied by a knowledgeable local Virginia criminal lawyer.

That local lawyer was a former Virginia prosecutor named William H. Cleaveland, who now has his own Wikipedia entry:

William Harrison "Bill" Cleaveland (born December 14, 1950) is an American politician and jurist. He was a Republican member of the Virginia House of Delegates 2010–2012, representing the 17th district, which included parts of Botetourt and Roanoke Counties and the city of Roanoke in the western part of the state. On January 30, 2013, he was sworn in as a judge of the General District Court of Botetourt and Craig Counties.

Jens Söring never mentions Bill Cleaveland, for one simple reason: Cleaveland obviously knew Virginia law inside and out, and just as obviously went on to have a successful career.

Richard Neaton, alas, didn’t.

After Söring’s trial, Neaton’s career went downhill. You can read all about it in this 2011 ruling from the Securities and Exchange Commission. Neaton was suspended twice from the practice of law in Michigan, then disbarred in 2001. At some point, he applied to become a licensed stockbroker. On one of the forms he was supposed to reveal whether he’d ever been barred from another profession before. He didn’t admit his disbarment from the practice of law in enough detail, so he was sanctioned by the Financial Industry Regulatory Authority (FINRA).

Söring always cites Neaton’s later career problems to imply that Neaton botched Söring’s trial, most recently in Söring’s latest YouTube video. That’s incorrect. First of all, Neaton had an experienced Virginia trial lawyer at his side the entire time. Second, Söring attacked Neaton and Cleaveland’s performance in his appeals, but all appeals courts held both lawyers did a competent job. After Söring’s trial, Neaton engaged in dishonest conduct, including as he handled Sörings appeals, but that was long after Söring’s 1990 trial.

Söring’s attacks on Neaton and Cleaveland

Neaton was hired by Söring’s father, who was then a consular official in Detroit, Michigan, sometime in 1986 or 1987.¹ Since his conviction and the denial of his first appeal in 1991 (which Neaton handled), Söring has incessantly attacked Neaton (without ever mentioning Cleaveland) for Neaton's alleged mistakes during Söring's trial.

How has Neaton responded to these attacks? With remarkable restraint. Neaton could almost certainly refute many things Söring has said about his case but has so far chosen not to.

But wait, what about attorney-client privilege?

Well, it may not apply if you say your former lawyer was incompetent. I’ll try to explain without too much legalese. Let’s start with an example. You’re a defendant in a criminal case. You’ve chosen to reject a plea bargain and take your chances at trial. You gave lots of confessions, so you lose your case. The lawyers you hired filed your initial appeal, but that’s all about the law. They say the judge was biased and made mistakes, or the evidence was insufficient, or the prosecutor insulted you illegally before the jury. The court disagrees and you lose.

That first appeal is denied, and your conviction is now final. Say you’re facing 15 years. Also assume you’ve got money to pay for more appeals. The option now is “habeas corpus”, where you can introduce new evidence to support your request for a new trial. You decide to file the habeas corpus appeal.

Habeas corpus literally means “to produce the body”. It goes back hundreds of years: in Brith common law, if the “writ” of habeas corpus was granted, a prisoner would be transported from his cell to the court or official which had sentenced him. There, he would be permitted to argue to the court that he had been unjustly sentenced. This ancient legal action has been updated and adapted until it’s barely recognizable. But the gist remains: Even after you’ve been convicted and your appeal denied, you can still go back to court one last time and bring in new evidence to prove your trial was unfair.

Söring Argues Neaton and Cleaveland were Incompetent

Söring filed habeas corpus appeals in both state and federal court, initially with the help of a lawyer named Gail Marshall. In those appeals, Marshall accused Sörings trial lawyers of providing “ineffective assistance of counsel”; i.e., incompetence. You can read summaries of Söring’s allegations in this opinion from the U.S. Fourth Circuit Court of Appeals. Söring claimed that his lawyers (1) should have objected when the prosecution told the jury that Söring had refused to give blood and fingerprint and footprint samples; (2) should have requested a jury instruction allowing the jury to convict on the offense of being an accessory after the fact; and (3) “counsel was constitutionally ineffective in failing to present more evidence to rebut the prosecution's contention that the bloody sockprint found at the scene of the crime was Soering’s”.

The Fourth Circuit rejected all of of these claims. As to claim number 3, the court found: “Counsel's performance was not objectively deficient…, since counsel effectively cross-examined one of the prosecution’s witnesses [i.e., Robert Hallett] about his failure to compare Elizabeth Haysom’s foot impressions with the sockprint, and since counsel demonstrated to the jury during closing argument ‘how one of Elizabeth's foot impressions matched the sock print almost as well as petitioner's [did].’ … [C]ounsel [also] remind[ed] the jury during closing argument that the shoe prints found at the crime scene were similar in size to Elizabeth's shoes.”

The court then addresses Söring’s claim that Neaton was mentally impaired: “Finally, Soering argues that his rights … were abridged because his lead trial counsel, who has since been disbarred, was emotionally and mentally troubled at the time of the trial. However, we conclude that the Supreme Court of Virginia's rejection of this claim was not … unreasonable …, not only because lead trial counsel did not perform below an objective standard of reasonableness, but also because Soering was not prejudiced, since local co-counsel [i.e., Cleaveland] was of sound mind and represented Soering competently.”

Neaton and Cleaveland’s performance was thus “objectively…reasonable”. But even if Söring’s trial lawyers had erred — which they didn’t — it would hardly have mattered to the outcome of Sörings case, the court reasoned, given the “overwhelming evidence that he personally killed the Haysoms…. Soering's confessions to American, British, and German officials recounted in detail how he and Elizabeth planned the murders and how he then carried them out.... These accounts of how he struggled with and then slaughtered the Haysoms were consistent with the deep facial bruise and the bandages to his left-hand fingers that he was seen with at the Haysoms' funeral…. And Soering's blood was of the same type as the unidentified blood found at the crime scene. … Given these facts, we cannot say that, ‘but for counsel's unprofessional errors, the result of the proceeding would have been different.’”

What Neaton and Cleaveland Could have Done

So, to sum up, Söring attacked Neaton and Cleaveland for making at least four serious mistakes during his trial and Neaton for being mentally “impaired” while representing him in 1990. There’s nothing improper about this, criminals who get convicted often try to blame their trial lawyers, and sometimes they have good reason to do so. Every court to hear Söring’s accusations rejected them. Nevertheless, like any allegation of professional incompetence, they had the potential to damage Neaton and Cleaveland’s reputation.

And this is where Neaton and Cleaveland showed restraint. Faced with these attacks on their professional competence, they could have asked for permission to breach attorney-client privilege and revealed damaging facts about Jens Söring and his defense. The reason for this is simple: They have a right to defend their reputations, and that right can overcome attorney-client privilege.

Here’s an analogy involving doctors: You go to the doctor and complain of chest pains caused by your existing heart condition. The doctor asks you whether you’re using drugs. You deny this, even though you’ve been taking large amounts of methamphetamines. Your doctor tells you it’s likely nothing serious, and perhaps increases your dosage of heart pills. Two days later, you have a massive heart attack. You sue your doctor, claiming that he should have immediately admitted you to the hospital. Of course, you don’t mention the fact that you were taking large doses of speed, and that you lied about this to your doctor.

Can your doctor defend himself by revealing that you lied to him? Of course he can. You cannot attack someone’s professional reputation and then hide behind secrecy rules. If you accuse a doctor, or a lawyer, of professional incompetence — a very serious thing to do — they can defend themselves by revealing otherwise confidential aspects of your relationship. So the doctor can testify that you never told him that you were taking speed, and that if you had, he would have not only told you to stop, but admitted you to the hospital right away. That information would normally be confidential, but since it’s relevant to the claim against you, your doctor can reveal it publicly.

A similar rule applies to lawyers who are accused of incompetence by former clients. Rule 1.6(b)(5) of the American Bar Association’s Model Rules of Professional Conduct (“Confidentiality of Information”) states: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary…to respond to allegations in any proceeding concerning the lawyer's representation of the client.” All American states have a similar rule.

It’s important to note that this exception to lawyer-client confidentiality doesn’t just allow a lawyer to start spilling secrets as soon as his former client accuses him of incompetence. Some states require or strongly encourage the lawyer get an official court order freeing him from his duty of confidentiality. However, courts will often decide that a prisoner has “implicitly waived” attorney-client privilege by filing claims of ineffective assistance against his former lawyer. That is, by accusing his former lawyer of incompetence, the prisoner has given up (waived) his right to confidentiality from his former lawyer concerning the allegations of incompetence. This allows the defense lawyer to reveal confidential information to the extent necessary to defend his reputation against his former client’s attacks.

Federal courts, however, go farther: “It has long been the rule in the federal courts that, where a habeas petitioner [i.e., prisoner] raises a claim of ineffective assistance of counsel [i.e., says his trial lawyer was incompetent], he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer. See, e.g., Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir. 1997); Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974); Laughner v. United States, 373 F.2d 326, 327 (5th Cir. 1967).” That is, if you accuse your former lawyer of incompetence, he or she can testify about “all communications” which are relevant to your claims.

Neaton and Cleaveland Remain Loyal to Söring

What all of this ultimately means is that if you are a lawyer and one of your former clients (now in prison) files an appeal saying you were incompetent, you have several choices.

1. Do nothing. you can just keep silent. After all, the case is now being handled by another lawyer, and all of your duties are over. You can just ignore the lawsuit unless you get some kind of court order.

2. Help your former client. You read the allegations of incompetence and realize you honestly did make a mistake. So you admit it. You file an affidavit saying “I should have done more research on the bullet, or I should have called that witness. That was my mistake, and I take responsibility for it.” Another way you can help your former client? Say that the prosecution never told you about important exculpatory evidence you could have used to show your client’s innocence. This is sometimes known as “falling on your sword”.

3. Spill all the beans to save your reputation. Relying on those court decisions saying a former client waives confidentiality as to “all communications” when he attacks your competency, you can spill all the beans. You file an affidavit saying your client confessed to you, tried to get you to bribe the jurors, planned to give false testimony, and admitted to a bunch of other crimes. The message: This guy was guilty as hell and just plain no good, so I never had a chance of winning his case. This is sometimes known as “stabbing your former client in the back”.

What approach did Neaton take? Number two: He helped Jens Söring, the very man who has attacked him relentlessly for decades. On July 30, 1996, Neaton gave Söring’s appeals lawyer, Gail Marshall, this affidavit. What Neaton says in the affidavit is that the prosecution never told him about William Shifflett and Robert Albright, the two drifters who murdered another drifter in Roanoke, Virginia shortly after the Haysoms had been killed.

The purpose of this affidavit was to help Söring win his appeal. Under the rule of Brady v. Maryland, the prosecution must tell the defense about any exculpatory evidence they come across while investigating the case. However, the prosecution isn’t required to tell the defense about something the defense already knows about, or could easily find out. So to win a Brady claim, you need to prove (1) the prosecution knew about evidence which could help the defendant; and (2) the prosecution did not tell the defense about this evidence. Neaton’s affidavit proves (2): I didn’t know about Shiflett and Albright because neither the police nor prosecutors told me about them.

Söring’s claim didn’t win, of course, because Shifflett and Albright had nothing to do with the Haysom murders. But Neaton did try to help Söring prevail, even though he was under no obligation to do so.

Neaton Keeps Faith with Söring even Now

At the time of the 2011 SEC ruling listed above, Neaton lived in Florida. I don’t know where he is now, and have never had any contact with him. I very much doubt he has any interest in discussing the Söring case. But if he did, and he could probably answer a number of questions which many people would like to have answered. Those include, for instance:

(1) Did Jens Söring ever confess to you? Did he ever tell you things only the killer could have known?

(2) Did you hire an independent expert to evaluate the sock-print? If so, what did he or she say?

(3) When did Jens Söring first tell you that he was innocent, and that he had confessed falsely to protect Elizabeth? Why did he wait so long to reveal this?

(3) After Söring told you he was really innocent, why didn’t you make this information public? Söring says you told him that claiming his innocence would jeopardize his chances before the European Court of Human Rights. Is that in fact what you told him?

(4) How exactly did Jens Söring’s handwriting come to be on the piece of paper which the movie tickets were attached to, even though the defense story was that these tickets were found loose in Söring’s apartment only in December 1985, long after Söring had fled the United States?

There are so many more questions only Neaton and Cleaveland can answer. But so far, they’ve kept mum. Or stumm, if you prefer the British variant.

As I’ve pointed out above, Neaton could claim he was justified in breaching confidentiality, since Söring constantly accuses him of incompetence. Whether this would be ethical and appropriate is very debatable — but at least Neaton would have some legal authority for coming forward. Further, it’s hard to imagine who could or would discipline Neaton for breaking his silence. He hasn’t been a lawyer since 2001, so he could hardly be “disbarred”. I don’t know if he’s still a stockbroker of some sort, but I doubt it, given that anyone can read that SEC ruling which accuses him of dishonesty. I don’t know anything about Neaton’s life right now, but it’s quite possible he would have very little to lose by coming forward.

Could Söring sue him? Possibly, but I can hardly imagine any lawyer taking on the case for any number of reasons. First, Söring is legally barred from entering the USA, which would complicate any lawsuit enormously. Second, Neaton probably doesn’t have lots of money. Third, it’s hard to see what the damages are: Söring’s reputation has already been destroyed by the fact that he is a convicted double-murderer. Neaton’s revelations could hardly damage Söring legally, since Söring has already suffered the worst possible outcome at trial: Convictions on both counts, and the maximum sentence. Söring can’t be re-tried, obviously. The only harm I can see is that Neaton’s revelations, depending on what they are, could make it much harder for Söring to convince people he was unjustly convicted. But since he wasn’t unjustly convicted, that’s hardly a convincing argument.

As a lawyer, I will say that Neaton’s conduct is ethical and admirable. Of course merely quitting the legal profession doesn’t allow you to breach confidentiality; lawyers must take their secrets to the grave (unless some exception applies). However, as someone who’s interested in the case, I would be very interested to hear anything Neaton had to say.

In any case, one thing is clear: Richard Neaton is almost certainly sitting on information which could profoundly change the way the world sees the Söring case (so is Bill Cleaveland, in all likelihood). So far, Neaton has decided to keep it to himself. If he wanted to come forward, however, he could certainly make an argument that he is entitled to do so to defend himself against Söring’s incessant attacks on his character and reputation.

If I were Jens Söring, therefore, I would stop publicly insulting Richard Neaton. He and Cleaveland did a good job in an incredibly difficult case (multiple detailed confessions recorded on audiotape, implausible testimony from the defendant), and Neaton even helped you in your appeals.

1. Söring’s father had been moved from Atlanta, Georgia, where Söring spent most of his youth, to Michigan years before the murders. Various sources, including comments on this blog, report that Söring’s father hired Neaton, a lawyer in Michigan (not Virginia), because Neaton was a friend.