Troubling Prosecutorial Misconduct Shows it Hand in South Florida

“This verdict restored my faith in our justice system,” said David O. Markus, one of Shaygan’s attorneys. “It shows win-at-all costs takes a back seat to justice.”

Here in South Florida, start a life as a legal blawger, and every other case is the feds or state reaching into the private conversations of lawyers with their clients. Or so it seems.

Last month this led to the now famous eavesdropping case in Broward with Judge Lebow throwing the Broward County State Attorney off the case. Prosecutors should have known better than to listen to the conversations of lawyers and their clients. They should have had the facts to convict before the indictment, not after the defendants began meeting with their lawyers. I don't care what the hell the jail says about warning you the conversations are taped. There is no rule which requires you to listen when you knew or should have known better.

Then trial attorney David O, Marcus, who publishes one of the top three Dade law blogs, the Justice Building Blog, undercovered similar activity while trying the case of Dr. Ali Shaygan, acquitted last week of medicaid fraud. The 'other' blogger in Miami, South Florida Lawyer, who rides a White Horse and wears a mask, and carries silver bullets, writes today that U.S. District Judge Alan S. Gold, held two days of hearings this week on the matter. Judge Gold said there were "flagrant violations" of basic rules by prosecutors and indicated he would likely order the U.S. government to pay the defense lawyers thousands of dollars in fees and costs.

"It's more than just mistakes. Important safeguards were not met," Gold said. "It doesn't seem like any facts were verified." U.S. Attorney R. Alexander Acosta on Wednesday called the situation "regrettable" and said the allegations have been referred to the U.S. Justice Department for possible disciplinary action. Sad that is necessary because it was unnecessary. What were they trying to win, a ticket to their disbarment?

Dr. Ali Shaygan was accused in a 141-count indictment of writing illegal prescriptions including one that led to a patient's death from a methadone overdose. But you don't sell out a legal career for one victory or one case. And that message should go to the female prosecutor in Broward who won a critical continuance in a drug trafficking case when she foolishly misled a circuit court jurist that her star witness was being detained in a Slovakian jail. Yeah, the jail was called a hotel, and he was having a fine old time while not appearing for court.

Shaygan attorney David O. Markus only found out by chance during questioning of a witness that his prior telephone conversation with that witness had been recorded. It later turned out that prosecutors authorized the recording. What were they thinking? If that was not enough, one of those witnesses, arguably agents of the government, may have solicited Markus for a bribe. Well, more than 'may have' since one of the recordings has Mr. Markus defiantly stating: "I am not paying any money for anything." To boot, the government failed to disclose the bias of these witnesses, since they were paid informants. As a defense lawyer, you say, Wow!

It is hard to write too much about the cases you handle without being self aggrandizing or inadvertently revealing a client communication you have to shut up about. Thus, Markus, blogger though he is, may be limited in what he can say. But the case is monumental. So it falls upon us, as fellow law bloggers, to speak up for him. What we have to say has to be necessarily critical of the United States Attorney's office. It leaves you dumbfounded.

Few government agencies have at their disposal the power, the reach, the capacity, the legal talent and skills as that of a US attorney. Few offices would ever need to compromise a case or claim by misguided directives. You have at your disposal the FBI, the DEA, the Justice Department, local law enforcement teams, multi jurisdictional task forces, Homeland Security, ICE, and legal rules which favor the government and limit the defendant, from grand juries to diminished discovery. You have time and money and so much more on your side already, why would you ever sell out to win a single case. Why?

Is winning so important? Sadly, we know the answer to that question, and it explains why United States taxpayers are probably now going to pay the law firm of David O. Markus hundreds of thousands of dollars and why some of the government's prosecutors may wind up getting prosecuted or disciplined. Below, links worth linking to:

http://www.markuslaw.com/userimages/956139.pdf
http://sdfla.blogspot.com/
http://www.markuslaw.com/page.asp?id=19

Howes Rebukes State Re-Hash Omelette in Martinez Case

The State of Florida has filed a motion for rehearing in the lawyer eavesdropping case of State vs. Martinez, but attorney John Howes wil not abide by it. He says reports of the 4th amendment's death is premature.

As you may remember, this is the newsworthy case involving misconduct on the part of the State of Florida for violations of the attorney-client privilege when the Assistant State Attorneys sought copies of a defendant’s telephone calls with his attorney.

Judge Susan Lebow threw the entire staff of the state attorney off the case when she discovered that its staff had not only listened to the calls despite specific assertions of the attorney-client privilege, but then shared the contents with other lawyers in the office.

Here are the links to our previous blogitorial and articles about the dispute.

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

Howes claims in his reply brief opposing a rehearing that the State is trying to simply rehash its rejected arguments on one hand, and not owning up to the gravity of their violation in the other:
“What the State still fails to grasp is the seriousness of its misconduct and the fact that it has been sanctioned for its illegal actions.”

And you do have to wonder where the State is going with this appeal. I think nowhere. Howes note in his argument that in its finding, the DCA concluded that Judge Lebow entered a “thoughtful” and well-founded order,” and that it was “solely the egregious misconduct of the state which brought upon the sanctions.”

As a matter of fact the State Attorney should not be appealing this case. His office should be apologizing for it, and simultaneously issuing a statement that no such further transgressions will ever again occur in the future.

4th DCA Affirms Judge Lebow

The headline reads that the 'Fourth DCA has affirmed Judge Lebow.' Those new to this blog or this issue may know not of which we speak.

Simply, here in County Broward, a cataclysmic error of seismic proportion was made by the Office of the State Attorney. In their zeal to prosecute, maybe even a guilty man, some of their own chose to listen in furtively on taped conversations of inmates with their lawyers as they strategized for trial. As you can see from the tape above, way back in 1963, a folksy sheriff named Andy Griffith even knew better.

The prosecution justified their arguments on the grounds that public notice had been given to the incarcerated that their conversations may be eavesdropped upon. They warned, they contend, that anything anyone said could be used against them, and we gave you notice. To do so, the forces of law surrendered their badge of righteousness and chose to become elements of injustice, invading the sanctity of the attorney client privilege for the expediency of the moment; to score a victory on a particular case whilst shattering the integrity of the criminal justice process.

Their incursions into privacy so discovered, atttorneys for the accused sought a mistrial. Judge Lebow declined to go so far, concluding instead that the sanction warranted for the prosecutorial malfeasance of a few was to exclude as prosecutors the entire State Attorneys' office, the voices of incursion having echoed throughout their chambers. So Judge Lebow declared. Today, she was affirmed by appellate powers greater than she.

What follows is the DCA decision, as first posted this afternoon on the JAABLOG website, once again ahead of the courthouse curve. When does Bill have time for court?http://jaablog.jaablaw.com/2009/02/24/4th-dca-backs-lebow.aspx?ref=rss

State v. Martinez
"Even if we were to conclude that Weir and Gaines are not controlling and that extraordinary writ jurisdiction may be invoked to review an order entered after a criminal trial commences, we would deny the petition in this case because the trial court did not depart from the essential requirements of law. See Pettis, 520 So. 2d 250; see also State v. Smith, 951 So. 2d 954, 958 (Fla. 1st DCA 2007) (recognizing that the standard for certiorari review “pertains to the seriousness of the error, not the impact of the ruling”). The trial court entered a thoughtful order after an extensive evidentiary hearing.

The State has provided the transcripts of the hearing, which we have reviewed. The record supports the trial court’s findings that the case law cited is distinguishable and that there was no waiver of the attorney-client privilege based on the circumstances in this case. Although the order states that the trial court did not need to consider the contents of the calls in making its ruling, the recordings were played during the hearing, the contents were discussed at length, and the trial court expressly found that the calls contained trial strategy. The order also recognizes that the conversations included privileged information that has been discussed throughout the State Attorney’s Office.

The failure to address the contents of the conversation in the order and expressly find actual prejudice is not “a violation of a clearly established principle of law resulting in a miscarriage of justice.” See Pettis, 520 So. 2d at 254. Even if we had jurisdiction, we would conclude that the State has not shown a preliminary basis for relief, and a response from the defendant would not be necessary. Fla. R. App. P. 9.100(h)."

Here is the previous Broward Law Blog piece on the subject, calling for the 4th DCA to affirm. It is great that they have.

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

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.