I Swear: The Meaning of an Oath

by Joel Cohen, with Dale J. Degenshein

Vandeplas Publishing (October 2019), 148 pages, $29.95

"I Swear: The Meaning of an Oath" is the third work of non-fiction by Joel Cohen, senior counsel at Stroock & Stroock & Lavan and an adjunct professor at Fordham Law School. (It is written with Dale J. Degenshein, now at Armstrong Teasdale and a frequent collaborator with Cohen.) Cohen's prior books have focused on how judges decide difficult cases and injustices in our criminal justice system. This short volume tackles a different problem, which Cohen describes this way: "I seek in this volume, through the prism of oaths that were taken by specific individuals, to raise broader questions and invite discussion about the different type of oaths that people take and the impact of their failure to comply with the oath—on them and on those who relied on that oath." As that sentence suggests, Cohen raises more questions than he answers. His is a Socratic dialogue with his readers, and it richly succeeds.

Cohen is a first-rate story teller, and the stories that he tells force the reader to think deeply about oath-taking—about the importance of adherence to oaths and the situations that may allow for deviation.

The individuals who provide the book's case studies range from Richard Helms, the CIA Director under Richard Nixon, who lied to Congress so as not to disclose our government's covert efforts to prevent Allende from coming to power in Chile; to Jimmy "the Weasel" Fratianno, who violated his oath of Omerta, to become an FBI informant and send some 40 mobsters to prison; to Father Joseph Toole, a Roman Catholic priest in the Bronx, to whom a murderer confessed his guilt and the innocence of two others; to Judith Miller, a New York Times reporter who served 85 days in jail rather than reveal that "Scooter" Libby was her source of information that outed a CIA "operative."

Cohen devotes a chapter to each story, in which he describes the oath that each person took and how the oath shaped their decisions. Like a good law professor, he changes the facts—poses hypothetical questions—to sharpen the issues. Should a priest disclose a confessional secret if it might prevent the penitent from victimizing others is one such hypothetical question.

One of Cohen's stories involves Staples Hughes, a public defender in North Carolina, who represented Jerry Cashwell in a high-profile murder case in 1985. Cashwell and Lee Hunt were charged with the brutal murders of Roland and Lisa Matthews, murders allegedly carried out because the Matthews had stolen marijuana from Hunt. Cashwell pleaded guilty and received a life sentence with the possibility of parole. He committed suicide in prison in 2002. Hunt was convicted of the murders and sentenced to two terms of life in prison. What Hughes knew, and Hunt's jury did not, was that in 1985 Cashwell had confided in Hughes that Hunt was innocent—that Cashwell alone had committed the crimes.

Hughes' oath required him to conduct himself "as an attorney … uprightly and according to law," which included maintaining client confidences. Hughes maintained Cashwell's confidence until Cashwell's death, then, relying on a recently decided North Carolina case that allowed a lawyer to disclose the confidences of a deceased client if the public interest outweighed the need for confidentiality, Hughes told Hunt's lawyer what Cashwell had told him.

The disclosure proved fruitless. At a hearing to gain Hunt's release, the judge declined to credit Hughes' testimony and reported him to the state's disciplinary board. Hughes succeeded in defending his conduct before the board, where he explained both his reasons for not disclosing Cashwell's confidences before Cashwell's death and for disclosing them afterwards. As to the former he said: "I never considered disclosing the truth while Jerry [Cashwell] was alive. I believed that because he had some possibility of parole, if only as an elderly man, and because the truth [that Cashwell acted alone] would probably eliminate all hope of parole, I should not disclose the truth."

Did Hughes act properly? Should he have disclosed Cashwell's confidences so an innocent man would not languish in jail? Should he have pressed Cashwell harder to make his own disclosure? Was Hughes an honorable lawyer adhering to his oath or an amoral (or even immoral) human being, who kept silent when he should have spoken? Cohen does not pass final judgment on Hughes. What intrigues him (and the reader) is the "horrendous burden placed upon [Hughes] by [his] ethical obligation."

Cohen begins and ends his book with a quote from Aeschylus: "It is not the oath that makes us believe the man, but the man the oath." Which is to say an oath is as noble as the man or woman who takes it. This past month, we watched as noble men and women—Marie Yovanovitch, Lt. Col. Alexander Vindman, Fiona Hill and others—came forward, took the oath and told of events involving our country and the Ukraine. If these witnesses were members of the "Deep State," then one hopes the deep state is populated by scores more like them. I read "I Swear" as I watched their testimony. I recall thinking: Oaths matter. Adherence to oaths can be difficult and can carry a heavy price for the oath-taker and others. The stories that Joel Cohen artfully tells confirm that fundamental point.

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.