Friday, December 07, 2007

Bassett: Headphones for All Prosecutors

For an eye-opener, go have a listen to yesterday's oral argument in Bassett v. State. (RealPlayer required).

Maybe I've drunk too much defense Kool Aid, but I was fairly shocked to see the Indiana Attorney General's Office argue with a straight face that it's just fine for a prosecutor to listen to nine pretrial jail tapes of telephone conversations between a lawyer and his client--and in an LWOP case--without disclosing the fact to the defense or the court . That he had done so just happened to pop out at a bench conference toward the end of the trial.

At about 34 minutes into the argument the deputy A.G. actually says it would be just fine for a prosecutor to listen to such calls with the intent of discovering the defense's strategy or other information that would be useful at trial. A defendant should have to show harm, according to the DAG.

That said, having sobered up from the Kool Aid a bit by taking a tour of a number of cases, I am shocked that the authority on whether one has to show prejudice in such circumstances is remarkably split. The leading U.S. Supreme Court case relied upon by Basset during the argument is Weatherford v. Bursey, 429 U.S. 545 (1977). That was a § 1983 case. It says that once there is an intentional invasion of the attorney-client relationship, a Sixth Amendment violation is established if there is a realistic possibility of benefit to the State or harm to the defendant. This has been watered down in many circuits in various ways.

The best description of the split comes from Justice White's dissenting opinion from the denial of cert. in Cutillo v. Cinelli, 485 U.S. 1037 (1988):

In Weatherford v. Bursey, 429 U.S. 545, 558 (1977), we held that establishing a violation of a defendant's Sixth Amendment right to counsel requires a showing of “at least a realistic possibility” of prejudice to the defendant or benefit to the prosecution. See also United States v. Morrison, 449 U.S. 361, 365-366 (1981). This case presents the issue of who bears the burden of persuasion for establishing prejudice or lack thereof when the Sixth Amendment violation involves the transmission of confidential defense strategy information. The First Circuit held that where confidential defense strategy information is transmitted to the prosecution and the defendant makes a prima facie showing of prejudice, the burden then shifts to the prosecution to prove that there was no prejudice to the defendant from the disclosure. Cinelli v. City of Revere, 820 F.2d 474, 478, 480 (1987); accord, United States v. Mastroianni, 749 F.2d 900, 907-908 (CA1 1984). This position conflicts with the approach of other Circuits of requiring the defendant to prove prejudice. United States v. Steele, 727 F.2d 580, 586-587 (CA6); United States v. Irwin, 612 F.2d 1182, 1186-1189 (CA9 1980). It also conflicts with a third position that once a defendant shows that the prosecution has improperly obtained confidential defense strategy information or has intentionally placed an informer in the defense camp then no showing of prejudice is required, for those acts constitute a per se violation of the Sixth Amendment. United States v. Costanzo, 740 F.2d 251, 254-255 (CA3 1984). Because of these conflicting approaches among the Circuits, I would grant certiorari.

I don't know what a "prima facie showing of prejudice" would look like in the circumstances of Bassett's case. During the argument, Justice Boehm made the point that to get into the question of prejudice, the privileged communications would have to be further revealed. I don't think that is much of a problem. Once the prosecutor had listened to the conversations, the privilege was blown--though maybe not.

More difficult would be trying to figure out what use was made of the information. You'd have to listen to the tapes, read the trial record, talk with the prosecutor, and then somehow figure it all out. If the phone conversations were just about the weather, then maybe the process would be easy. The actual usefulness to the State of any discussion between client and lawyer of trial strategy, witnesses, etc., would be extremely hard to parse out, I should think.

And all of this gets away from the exact words of Weatherford: "the realistic possibility of injury to Bursey or benefit to the State . . . ." Eavesdropping, albeit after the fact, though before trial, on nine phone conversations would seem to create quite a realistic possibility of benefit to the State without having to get into all the ugly details and assessments.

Given Weatherford's explicit language, even with the AEDPA, the case seems pretty well teed up for habeas.

I certainly hope the Indiana Supreme Court does not come up with the idea that phone calls to jails and prisons are not privileged, because everyone knows they may be recorded. The rule should be that they are privileged even though they may be recorded. Any other rule will make criminal defense practice almost impossible--as Joe Cleary pointed out today in the argument. I haven't looked up fed law on that subject. Maybe someone else knows what it is.


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