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.

See also:

http://browardlawblog.blogspot.com/search/label/Judge%20Lebow

Here is the body of the Herald article:
http://www.miamiherald.com/news/miami-dade/story/929644.html

WSJ Blog Addresses 'Testalying'

Since The Broward Law Blog has only made its debut this month, we have to catch up on two hundred years of legal history, or at least the two hundred years of setbacks the George Bush Supreme Court has helped create in the past eight years.

Earlier this month, in a month that will live in Fourth Amendment infamy, the Supreme Court granted an exception to the exclusionary rule by holding that the prosecution of an Alabama man for drug- and firearm-possession charges was valid, even though the contraband was found after the man was wrongly arrested and searched, and for all I know, waterboarded. Anyway, police officers had mistakenly thought he was subject to an arrest warrant. So they said.

Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts. Oh, man, that is not what the Fourth Amendment says. It says people SHALL be free in their homes and on their person from illegal searches and seizures, and the remedy for that has been and has got to be the exclusion of evidence. One other remedy might be picking better judges.

One of the useful legal blogs I post on the sidebar for your reading perusal is the Wall Street Journal Blog. In a column authored by Amir Efrati, numerous legal sources express their views on the truthfulness of law enforcement officers while testifying, as well as the Exclusionary Rule, and its diminution in recent years.

It's a good read, and here is the link:
http://online.wsj.com/article/SB123319367364627211.html

Judge Lebow's Ruling Must Be Affirmed

Appellate Courts Should Back Judge Lebow’s Ruling
By Norm Kent

In an emergency relief motion filed late last week, the Florida Attorney General's Office claims Circuit Judge Susan Lebow overstepped her bounds when she punished two prosecutors for listening to taped phone conversations between murder defendant Luis O. Martinez and his attorney. How did this day come about?

About two years ago, local papers ran a story that law enforcement, with all its spare time, wanted to have its staff spend their evenings listen to phone calls from inmates at the county jail. Apparently, COPS and Larry King were not enough for them. Notices were dutifully posted and the cruel process of intervention and invasion into the sanctity of attorney client privilege was commenced under lawful pretenses.

The right column sidebar of this blog features an eye-popping video of Andy Griffith and Opie. Let me tell you why it is there. The episode was about a bank robbery in Mayberry. The suspect was in custody. Opie tried to help out Andy. Thus, before the defendant’s attorney met with his client in the jail, Opie secretly placed a tape recorder to listen in on the conversation. After the lawyer left, Opie retrieved the tape recorder to play it for Andy. Watch what happens when this Sheriff is presented with that evidence.

Ladies and gentlemen of the law, of this courthouse, there are few things as sacred as the nature of the attorney client privilege. When I showed this tape to Chris Grillo, the defense attorney in this case, he remarked that he wished he had it to display for Judge Lebow during his closing arguments on this sorry episode.

We are talking about a fundamental right of jurisprudence, an essential ingredient of the adversary system, a cornerstone of justice. Too many years of Ronald Reagans and forfeiture acts have jaded us. We need to return to the Zen of truth.

Martinez, 43, is on trial for the slaying of a Lighthouse Pointe man in 2003. The trial was near completion when the judge halted it in October. She acted after Grillo claimed state attorneys had listened to privileged conversations mistakenly taped at the Broward jail during the trial. The conversations were between Grillo and Martinez.

The defense sought a dismissal, the most serious sanction. Judge Lebow said no, that is too much. Instead, she chastised the prosecutors for inappropriate conduct and disqualified the entire State Attorney's Office from trying the case. It is nicer than I would have been. I would have flogged the prosecutors and one used to share space with me in my law office.

I have not followed the case so closely as to understand whether the discovered evidence was consequential or immaterial. While that is relevant in fashioning an appropriate judicial remedy, I am more concerned in those procedures which set into motion the techniques that now 'inadvertently' but invariably invade the privacy of inmates and their attorneys. Think about it. There must already be some probable cause and proof of guilt to detain them; some credible evidence which warranted their incarceration. Otherwise, theoretically, they would not be in jail

Let the State of Florida then prove their case with the evidence which warranted that detention in the first place. You see, the incarceration is already a penalty that is being exacted by the State. Seek not to enrich your prosecution by using the tools of chicanery and deception. Seek to find ways instead to protect the integrity of those first ten amendments we call the Bill of Rights.

If I were on the appellate court that would be the message I would send to the State Attorney, the Sheriff, and law enforcement. In doing so, I would affirm Judge Lebow’s ruling, which is the least innocuous penalty that should be exacted for ‘inadvertently’ trespassing on the Constitution of the United States of America.

Supreme Court OKs Passenger Frisks

The US Supreme Court has just ruled unanimously in a case which sustains the expanding rights of law enforcement officers. It has determined that a police officer who has a reasonable suspicion that a car passenger is armed and dangerous may conduct a pat-down search without violating the Fourth Amendment.

Writing for a unanimous court, Justice Ruth Bader Ginsburg said police officers involved in lawful traffic stops need not have a belief that the passenger is involved in criminal activity before conducting a search. The frisk is permissible if the police "harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public," according to the opinion (PDF).

Defense attorneys had argued that the reasonable suspicion standard could support just about any pat-down and limit a citizen’s rights. The court thought otherwise. The Supreme Court, now apparently firmly titled to the conservative side when it comes to Fourth Amendment matters, has struck another blow against our constitution protections. This decision comes on the heels of one a week before, where the Supremes ruled that the exclusionary rule does not apply when the police accidentally violate your Fourth Amendment rights. Not a good thing. So all they have to do is say, 'Sorry, my bad' and your goose is cooked.