RALEIGH -- Legal experts say a Raleigh lawyer shouldn't expect help from federal courts if the state Supreme Court, as expected, allows prosecutors to learn what his client might have told him about the Eric Miller murder case.

Last week, a Wake County judge ruled that prosecutors should be privy to what Derril Willard told lawyer Rick Gammon about Miller's death. The 30-year-old AIDS researcher died Dec. 2, 2000, as a result of arsenic poisoning.

Police have said that Willard, who since committed suicide, was having an affair with Miller's wife, Ann, and that both had access to an arsenic compound.

After reviewing a statement from Gammon describing what Willard told him about Miller's death, Wake Senior Resident Superior Court Judge Donald W. Stephens said the statement contained information about a third party's involvement that could help prosecutors investigating the murder.

Gammon has resisted telling prosecutors what his client said, claiming it is information that should be protected by lawyer-client privilege. But law professors say Gammon is unlikely to get federal courts to prevent prosecutors from seeing a sealed affidavit that details his conversations with Willard.

On the other hand, they say it is unclear whether jurors in any future murder trial could hear Gammon testify about what Willard said. Therefore, jurors might not directly learn whom Willard implicated in Miller's death.

Gammon's lawyers are not dissuaded by such predictions and are researching possible arguments to persuade the federal courts to intervene. "We're looking at all our options," said one of the lawyers, Joseph Zeszotarski Jr. "Obviously we'll pursue this appeal through the N.C. Supreme Court and then see where we are."

State vs. federal issue

Those involved in the case assume the state's highest court will uphold Stephens' order releasing the affidavit to prosecutors.

In August -- in response to an appeal in this case -- the state Supreme Court created a narrow exception to the confidential communications between an attorney and a client. The court said any information relating to a third party is not confidential and can be released if the client wouldn't be harmed, which was exactly Stephens' finding after reviewing Gammon's affidavit.

If the affidavit is ordered released to prosecutors, Gammon will be left trying to find a constitutional question to raise in the federal courts -- either by a lawsuit in federal trial court or an appeal directly to the U.S. Supreme Court. Legal experts and those involved in the case say Gammon's likelihood of success is not good.

"I don't see a federal issue," said Wake District Attorney Colon Willoughby, who pursued the information to help the unsolved murder investigation. Willoughby said this case involves North Carolina's rules regarding attorney-client privilege and isn't a matter of federal law or a constitutional issue -- the only questions considered by federal courts.

Duke University law professor William Van Alstyne agrees, saying the federal courts would intervene only if Stephens' order conflicted with the U.S. Constitution or an act of Congress. "But so far as I can see on the current facts, and consistent with the little there is from the U.S. Supreme Court itself, there is no substantial basis for such a claim," he said.

Uncertain testimony

It's not clear how prosecutors could use the affidavit in a trial.

If Gammon took the stand to testify about Willard's statements, his testimony would be hearsay, said Ken Broun, a UNC law professor who wrote a book on trial evidence. A judge might not permit Gammon to testify since murder defendants have a right to confront their accusers, and Willard, the source of the information, can no longer testify.

However, Broun said, Gammon could testify under one of two exceptions to the rule prohibiting hearsay: Either Willard is presumed to have been truthful because he potentially could face criminal charges, or there is a trustworthiness in what he said because of the circumstances surrounding his statements.

Since Stephens' order said Willard didn't implicate himself in Miller's death, Broun said, it doesn't look as if Gammon could testify under the first exception. But Broun said his testimony might be permitted under the more general exception. "It's certainly conceivable that [an exception] would be created in this instance," he said.

Willoughby believes it is too soon to predict the affidavit's usefulness in a trial. Right now, he is hoping to solve the case.

"We hope the information is sufficient, when coupled with the other evidence we have, for us to solve this crime and know who is responsible for the death of Eric Miller," Willoughby said.

In jest, he said, "It would be fun to cross-examine Gammon, though."

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