Published: 24 April 2017
WHO KILLED SCOTT MACKLEM? Author’s Note: Every wrongful conviction causes dual torment: the torment of the innocent yet imprisoned individual, and the social torment that the actual perpetrator remains free. This blog focuses primarily on the latter, in the hope that we will gain more knowledge about the murderer of Scott Macklem.
Post #3: Advocacy, Part I Date: 04/20/17
As an attorney, I find it repugnant that the defense attorney appointed to represent the accused person in the murder of Scott Macklem didn’t work harder to assure an acquittal. Scott was 20 years old when he was found shot to death in a parking lot at St. Clair County Community College on November 5, 1986. After one interview with Scott’s pregnant fiancée, the police focused on one individual and one only - the wrong person.
You might believe that the failure of the accused’s attorney to search for the truth was an injustice only to the accused. That is inaccurate. A criminal defense attorney, just like any other attorney is bound by an ethical duty. The Michigan Rules of Professional Conduct provide “[A] lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” The quality of justice depends inexorably on truth. The defense attorney in this case ignored the truth, allowing an innocent man to be convicted and just as importantly, he allowed a murderer to avoid any suspicion of culpability.
Lawyers in general have a tainted reputation. When it comes to criminal defense attorneys, many people, including some lawyers, feel a certain amount of disgust at the idea that someone could advocate for a criminal. Television shows and movies often portray criminal defense attorneys as “sleezy.” Of course, those entertainment media also portray the accused as undoubtedly guilty, as we sit in anticipation of the announcement of conviction from the jury.
I have no particular opinion about criminal defense attorneys in general. I respect our Constitution which guarantees that the accused are innocent until proven guilty beyond a reasonable doubt. I respect that the Constitution provides that the accused are entitled to representation. These protections are intended to assure the quality of justice.
I do have a very particular opinion about David Dean, the attorney who represented the accused in the Scott Macklem murder case. You may understand why when you consider this question: What is worse, an attorney who agrees to represent a clearly guilty individual, or an attorney who doesn’t care that he is representing a clearly innocent individual, and does nothing to stop a conviction? I say the latter, because in the first example, the attorney is duty-bound by our Constitution. In the latter, the attorney has violated his ethical duties altogether
The utter failure of this particular attorney started from the time he was appointed. He had represented the lead investigating police officer in an employment matter. That was a conflict of interest. While attorneys can work on matters despite conflicts of interest, one cardinal rule applies: the client must consent after consultation. That means the attorney must disclose the conflict of interest to the client and the client must agree that the representation go forward. In this case, the accused did not learn of this conflict of interest until after he was convicted and incarcerated.
More egregious, the employment matter involved the officer’s ability to do his job. He was fired from the Port Huron Police Department based on incompetency and dereliction of duty. According to court records, in 1981, a special agent for the Michigan State Police was conducting an investigation at a Port Huron motel where sports betting, bookmaking and high stakes poker games were suspected. The investigator reported that the subject police officer was there yet made no arrests and reported no suspected violations of gambling or liquor laws. He was fired in 1982 for conduct unbecoming a police officer and neglect of duty. David Dean represented the officer in a legal battle for unemployment benefits, and lost. The officer was reinstated about a year before the Macklem murder. These facts alone, within the personal knowledge of David Dean, should have tipped him off that there might be problems with the investigation of Scott Macklem’s murder. They undoubtedly required him to disclose this conflict of interest to the accused before taking on his representation.
According to articles published in the Detroit Metro Times in1997, David Dean was an admitted cocaine abuser throughout the 1980’s. He claims it didn’t affect his handling of the Scott Macklem murder case. Dean was busted in Ohio a year before the case, and pled no contest to that charge. His drug problems continued long after. Three years after the Macklem murder case concluded, one of Dean’s clients, a murder defendant, testified he had sold drugs to Dean. A new trial was granted in another case when the judge determined that Dean's substance abuse had affected his status as defense counsel. During those proceedings, Dean's assistant testified that he was actively using drugs at the time of the Scott Macklem murder case. The Michigan Court of Appeals has overturned every guilty verdict against Dean’s clients that was appealed, before and after the Macklem case.
In 1993, Dean was suspended from practice by the Michigan Attorney Discipline Board. Newspapers reported that the investigation revealed Dean had purchased cocaine or had it purchased for him at least 19 times during the summer of 1990. He was denied reinstatement in 2001. Dean has subsequently denied that he was using cocaine during the Macklem murder case. The truth is abundantly clear: there was a mountain of exculpatory evidence he was unable to recognize due to his substance abuse.
Advocacy, Part II will discuss the specific missteps Dean made during the pretrial proceedings and murder trial. His representation was a disservice to justice, to the defendant and just as importantly, to Scott Macklem. It’s time to find out who really killed Scott. If you have any information that may assist in this effort, I implore you to contact Dave Sanders at bdsanders@provinginnocence.org.
Thank you, let’s find Scott’s killer!
