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| Ian Wallach Partner Feldman & Wallach www.feldmanwallach.com www.trialfiendinthenews.blogspot.com |
In Los Angeles there have been recurring reports of
detectives calling represented parties – outside of the presence of, and
without the knowledge of or notice to, their counsel, in hopes of establishing
a cooperation agreement, and telling those parties to fire the lawyer. This is happening in matters that are not yet
filed and there is no evidence suggesting that any specific AUSAs or other
prosecutors are aware of the conduct.
This article will examine the ramifications of such conduct
and make suggestions as to how a lawyer can use this misconduct to his client’s
benefit.
This is not a new problem.
This is not a regional problem.
In Commonwealth v. Manning,
373 Mass. 438 (1977) a federal agent contacted a represented defendant in hopes
of having the defendant become an informant.
The agent wanted the defendant to become an informant, and made
disparaging remarks about the defendant’s attorney. The Court addressed the misconduct and,
specifically, if there was a showing of prejudice sufficient to warrant
dismissal. The Court stated that it was
examining a “deliberate and intentional attack by government agents on the
relationship between Manning and his counsel in a calculated attempt to coerce
the defendant into abandoning his defense.”
Id. at 443. The Massachusetts
Court dismissed the case, stating that “we wish to leave no doubt that such
conduct will not be tolerated in our criminal justice system.” Id.
at 445.
But a few years later, the U.S. Supreme Court was less
offended (or at least not sufficiently offended to uphold a dismissal). In U.S.
v. Morrison 449 U.S. 361 (1981), the Supreme Court examined a situation
where a defendant had hired a lawyer, and then two DEA agents met with the
defendant afterwards and stated that the lawyer was substandard and she should
fire him. Id. at 363. The defendant
moved to dismiss the case based on the misconduct, but there was no showing of
prejudice (and, more importantly, there was no evidence that the prosecutor was
complicit or even aware that it transpired).
The Court provided a historical analysis of governmental misconduct
cases and noted that the remedy of exclusion is available for evidence gained
unlawfully. See id. at 364. The Court
stated that “absent demonstrable prejudice, or substantial threat thereof,
dismissal of the indictment is plainly inappropriate, even though the violation
may have been deliberate.” Id. The
Court went on to state that in criminal cases, the remedy for governmental
misconduct is to exclude the ill-gotten evidence. The Court stated that “we do not condone the
egregious behavior of the Government agents.
Nor do we suggest that in cases such as this, a Sixth Amendment
violation may not be remedied in other proceedings. We simply conclude that the solution provided
by the Court of Appeals is inappropriate where the violation, which we assume
has occurred, has had no adverse impact upon the criminal proceedings. Id.
at 367.
But a few years after that, a California appellate court
followed Morrison and still mandated
dismissal. In Boulas v. Superior Court, 188 Cal. App. 3d 422 (2d. Dist., 1986), the facts were
plainly egregious. The defendant in Boulas
hired an investigator – without consulting his attorney – to consult with the
authorities about a plea bargain. A
deputy met with the investigator and the defendant and proposed a cooperation
agreement. The deputy then discussed
this meeting with the Deputy District Attorney.
The DDA decided that a cooperation agreement could only go forward if
the defendant’s present attorney was fired.
This was relayed to the defendant, who fired his attorney. The DDA then instructed the investigator as
to which attorney to hire. The Court’s
use of the sanction of dismissal was apparently due to the Deputy District
Attorney’s complicity and proactive intrusion into the relationship between the
attorney and the client.
The Court set out to determine “the proper remedy for intentional
interference by law enforcement personnel with the attorney-client relationship
in the unique instance of such interference leading to the irremediable
breakdown of that relationship.” Boulas, 188 Cal. App. 3d at 425. The Court began its discussion by stating “[t]here
is no question that governmental authorities acted improperly when they
contacted Boulas outside of the presence of his attorney to advise him to fire
Attorney S.” Id. at 429. The
Boulas court then cited a long line of cases holding that that “[w]hen
conduct on the part of the authorities is so outrageous as to interfere with an
accused's right of due process of law, proceedings against the accused are
thereby rendered improper” and that dismissal was a proper remedy in the face of shocking
misconduct by overzealous government agents.
Id. The prosecution argued
that absent proof of harm, dismissal was an inappropriate sanction. But the Court eloquently stated the nature of
the attorney-client relation in a criminal action as follows:
The prosecution's
argument fundamentally misunderstands the scope and breadth of the state's
invasion of Boulas's right to be represented by counsel of choice. Criminal defense lawyers are not fungible. The attorney-client relationship ". . .
involves not just the casual assistance of a member of the bar, but an intimate
process of consultation and planning which culminates in a state of trust and
confidence between the client and his attorney.
This is particularly essential, of course, when the attorney is defending
the client's life or liberty." (citing
Smith v. Superior Court (1968) 68 Cal.2d 547, 561). In order to provide
effective assistance of counsel, it is essential that a defendant have full
confidence that his attorney is representing the defendant's interests with all
due competence.
Boulas, 188 Cal. App. 3d at
430. The Court reiterated the strict
prohibitions against the state from interference with this relationship,
stating “[t]he state is obliged ‘to refrain from unreasonable inter-ference
with the individual's desire to defend himself in whatever manner he deems
best, using every legitimate resource at his command.’ (citing People v.
Crovedi, (1966) 65 Cal.2d 199, 206). The state must respect, and not interfere
with, a defendant's ‘right to decide for himself who can best conduct the case
. . . .’ (citing Maxwell v. Superior Court, 30 Cal.3d 606. 615).” Id. at 432.
The Boulas Court distinguished itself from the Supreme Court’s
decision in Morrison, by stating:
It
is important to note that, in United States v. Morrison, 449 U.S. 361,
the Supreme Court did not rule out the possibility of ordering the dismissal of
a case upon a proper showing of prejudice.
The court, in Morrison, found that the record tendered by the
defendant failed to "reveal a pattern of recurring violations by
investigative officers that might warrant the imposition of a more extreme
remedy in order to deter further lawlessness." (Id. at pp. 365-366, fn.
2, italics added.)
There
exist factual distinctions between Morrison and the present case. The defendant in Morrison was twice
contacted by police officers. During
these visits, the officers berated her attorney's competence and sought her
cooperation in another case. She
declined to cooperate, did not supply any information pertinent to her case,
and kept her attorney. (Id. at pp.
362-363).
There
is no suggestion in Morrison that the prosecutor's office participated
in the decision of the police officers to speak with the defendant outside of
the presence of her attorney. In
contrast, the record before this court contains substantial evidence of such
participation on the part of a deputy district attorney.
Boulas, 188 Cal. App. 3d at
431-432. The Court dismissed the case
(though one judge dissented in Boulas, citing Morrison, stating
that the conduct was indefensible but there wasn’t a showing of prejudice that
warranted dismissal). The Court also gave
the following note of hope at the end of the opinion:
It is the hope of this court that this opinion
will serve to discourage government officials from interfering with the
constitutional right of an accused to be assisted by counsel of his own
choosing. "In a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent
teacher. For good or for ill, it teaches
the whole people by its example." (citing Olmstead v. United States
(1928) 277 U.S. 438, 485 (Brandeis, J., dis.)).
Id. at 434.
Boulas is still the law
in California. (See People v. Uribe, 199 Cal. App. 4th 836, 868
(Cal. App. 6th Dist. 2011), "Boulas has no application. There, ‘the grave sanction of dismissal’ was
found to be warranted ‘to discourage government officials from interfering with
the constitutional right of an accused to be assisted by counsel of his own
choosing.’ Here the misconduct did not involve in any way an interference with
defendant's relationship with counsel").
But the Boulas’ Court’s warning may not have had much effect, as
the practice continues.
So, the law in California is that if (a) government agents
intentionally seek to have a represented party terminate her lawyer; and (b)
prejudice arises; then a dismissal can be issued. And will more likely be issued if (c) the
prosecutor is aware of, or complicit in, the misconduct.
So how can you establish complicity?
And how can you establish prejudice?
Consider writing a letter to the District Attorney identifying the
officer or agent and the misconduct.
This could help to establish notice and complicity, and be a starting
point for a resolution. And as far as
prejudice, consider having the client fire you, and letting a friend take
over. Or at least have the client write
down what it felt like to have government agents come speak to him knowing he
was represented, and after you told them that it would not happen, and that it
would be unlawful for them to do so. If
your matter is not yet filed, you may wish to talk about this with the
prosecutor’s office, rather than write about it, in hopes of using the
prosecutor’s desire to protect the officer to your advantage (ideally, in the
form of a non-filing or informal disposition).
If the case is filed, then taking the steps above can give a tiny chance
of a dismissal, and a stronger position to negotiate for lenient resolution.
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