Recent Broward Law Blog Features

Tuesday, March 3, 2009

Now Dade: Feds Accused of Listening in on Attorney Conversations

Shades of State vs. Martinez, here in Broward County.

Jay Weaver is reporting in today's Miami Herald that defense lawyers representing an accused physician are seeking a dismissal of his charges, alleging that the government illegally and secretly authorized witnesses to record phone calls -- but didn't tell the defense lawyer before trial.

Defense lawyer David O. Markus -- representing Dr. Ali Shaygan -- said he only learned about the questionable phone recordings after cross-examining one of the government witnesses during trial last month. Markus found out he was recorded in two phone conversations. David publishes the well respected Dade County Justice Blog.

''Dr. Shaygan respectfully submits that the government's conduct in this case is so outrageous and was undertaken with such flagrant disregard for Dr. Shaygan's constitutional rights that dismissal is the appropriate remedy,'' Markus and his trial partner, Marc Seitles, wrote in a motion filed Monday and reported in the Herald this morning.

They filed it with U.S. District Judge Alan Gold, who is presiding over the Shaygan trial, now in its third week.

At issue is not only an apparent violation of policy in the U.S. attorney's office, but, more significant, possible breaches of attorney-client privilege under the Constitution's Sixth Amendment.

Gold has the authority to dismiss the indictment, declare a mistrial or allow the trial to be completed.

The U.S. attorney's office admitted it made a ''mistake'' by failing to follow policy. The case supervisor should have sought approval from senior officials to have two government witnesses place recording devices on their phones.

''We regret the policy was not followed,'' said U.S. Attorney R. Alexander Acosta, indicating the matter was referred to the Office of Professional Responsibility in his office.

Faced with a similar fact situation in Broward County, Judge Susan Lebow recused the Broward County State Attorney's office but declined to dismiss the case. The Fourth District Court of Appeals affirmed her ruling, and though one is a state court, and another federal, it provides some guidance on what the courts might do here. Dismissal of all charges, of course, is the most serious sanction, and would be a tremendous victory for defense attorneys everywhere.
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