Haworth v. State
Annotate this Case
Haworth v. State
1992 WY 137
840 P.2d 912
Case Number: 90-276
Decided: 10/22/1992
Supreme Court of Wyoming
Steven HAWORTH, Appellant (Defendant),
v.
STATE
of Wyoming, Appellee
(Plaintiff).
Appeal from District Court, NatronaCounty, Harry L. Leimback,
J.
Leonard
Munker, State Public Defender, Cheyenne,
Wyoming, Defender Aid Program, Gerald M.
Gallivan, Director, Timothy F. Marion, Student Intern, Laramie, for appellant.
Joseph
B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Mary B. Guthrie and
Jennifer L. Gimbel, Sr. Asst. Attys. Gen., Cheyenne, for appellee.
Before
MACY, C.J., and THOMAS, CARDINE,
URBIGKIT,* and GOLDEN,
JJ.
* Chief Justice at time of oral
argument.
GOLDEN, Justice.
[¶1.] A jury found appellant
Steven Haworth guilty of aggravated assault and battery1 for his use of a pocketknife during
a fight with Rod Risk on May 23, 1990, outside a bar near Casper, Wyoming. Haworth had claimed he used the knife in
self-defense.
[¶2.] On appeal, Haworth raises one issue:
Whether
the prosecution's deliberate and covert intrusion into appellant's trial
preparations, alerting the prosecution of appellant's defense strategy, violated
appellant's fifth and sixth amendment rights to a fair trial and effective
assistance of counsel, respectively.
[¶3.] We
affirm.
FACTS
[¶4.] The fight in which
Haworth used the knife occurred on May 23,
1990. A few days later, law enforcement authorities arrested and charged
Haworth. Unable to make bail, he remained
incarcerated in the county jail through July 23, 1990, when his trial
began.
[¶5.] For the weekend period
immediately preceding the first day of trial on Monday, Haworth's defense
counsel made arrangements with the county sheriff's office that enabled defense
counsel to spend several hours each weekend day with Haworth in the same courtroom in which the trial was to be
held. Haworth and his defense counsel used these weekend sessions to prepare for
trial.
[¶6.] Since Haworth was
unable to make bail and was in the sheriff's custody, the sheriff required that
one of his deputies remain with Haworth during
these trial preparation sessions. According to Haworth's defense counsel, and this fact is not challenged
by the state, defense counsel paid the deputy sheriff's overtime wage
necessitated by this custodial security arrangement. According to defense
counsel, he expressly told the deputy sheriff who remained with Haworth during these trial preparation sessions that the
deputy sheriff was working for defense counsel and "none of this goes out of
this room."2
[¶7.] During the first day of
trial, when the prosecutor was on the last part of his direct examination of the
state's first witness, Rod Risk, the victim, it became apparent to Haworth's
defense counsel that the prosecutor had learned not only about Haworth's weekend
trial preparation sessions with defense counsel but also about the substance of
some of the conversations between Haworth and defense counsel during those
sessions. During the examination of Rod Risk, the prosecutor, contendably
setting the stage for his later cross-examination of Haworth and his still later
closing argument to the jury, pointedly asked Risk whether he had practiced his
testimony in the courtroom before testifying that day. The victim-witness
answered he had not.
[¶8.] As a result of that
questioning, at the start of the second day of trial the defense counsel and the
prosecutor met with the trial judge in chambers to discuss defense counsel's
concern that the prosecutor intended to cross-examine Haworth about the weekend trial preparation sessions.
During this discussion, the trial judge learned about defense counsel's weekend
trial preparation sessions with Haworth and the
prosecutor's discovery of them. It was clear that the prosecutor had learned
about the sessions, including the substance of some of the conversations between
defense counsel and Haworth, from the deputy sheriff who had provided custodial
security of Haworth during those
sessions.
[¶9.] As a result of the
in-chambers discussion, the trial judge ruled that the prosecutor could not talk
about the defense's "rehearsals in this courtroom." The trial then resumed. The
issue in question did not surface again until the third day of
trial.
[¶10.] On the third day of trial, after the
state had rested and all defense witnesses had testified except Haworth, defense counsel and the prosecutor again met with
the trial judge in chambers. They again discussed defense counsel's concern that
his work product had been compromised by the deputy sheriff's having divulged to
the prosecutor the substance of some of the conversations between defense
counsel and Haworth he had overheard during the weekend trial preparation
sessions. Specifically, it was evident the prosecutor had learned from the
deputy sheriff that defense counsel and the accused had discussed that the
accused should, in his trial testimony, describe his use of the knife in the
fight with the word "cut" instead of the word "stab." The prosecutor's main
concern was that Haworth had been impermissibly
coached; he wanted to expose this on cross-examination.3
[¶11.] During this in-chambers discussion, the
prosecutor disputed the defense counsel's representation to the trial judge that
he had expressly instructed the deputy sheriff at the weekend sessions that
confidentiality attached to all that was said during the sessions. The
prosecutor, however, failed to present the deputy sheriff, place him under oath,
and offer his testimony about what defense counsel had told
him.
[¶12.] As a result of this in-chambers
discussion, the trial judge ruled that the conversations between the defense
counsel and Haworth during the weekend sessions were work product. The trial
judge instructed the prosecutor, "You can't inquire into that area as being
quoted from a lawyer to a client." After further discussion, the trial court
said:
I think there are ways
that the State is protected in their cross examination to get at what you are
getting at. I think in view of the fact that the information of someone telling
him, you know, the play on words, whether it is stabbed or cut, resulted from a
conveyance of information by the deputy that had to be there. In other words,
the defendant has to prepare his case and I suppose that had you called me, I
would have said, shackle him and have the deputy step outside. But nobody called
me. * * * And what we are after here is a fair trial * *
*.
That
just strikes me as being unfair. Not only that, but it strikes me as being a
potential reversible error.
I think you can get at
it in cross-examination without referring to the conversations between counsel
and the Defendant. That would be my ruling.
[¶13.] The prosecutor then proposed that he
would ask Haworth this question on
cross-examination: "You have been specifically instructed to use the word `cut'
versus `stabbed'"? The trial judge declared that that question was
objectionable. On that point, the in-chambers discussion ended and the trial
resumed.
[¶14.] Defense counsel called Haworth to testify on his own behalf. After answering a
few preliminary questions about his background and employment disability,
Haworth answered his own counsel's questions
concerning their previous discussions about the case:
Q. Now,
Steve, you and I have discussed this case a great deal?
A.
Yes.
Q.
Could you give an idea to the Jury what I
have told you to tell them?
A. Just
to tell the truth, just state facts as they are, and tell the truth. (Emphasis
added).
[¶15.] Following this exchange, defense counsel
then conducted direct examination about the facts and circumstances of the
fight. In several of his answers to questions about the fight, Haworth used the word "cut" in describing what happened.
Thus, after describing how he had been knocked down, how the victim Rod Risk had
straddled him and had been swinging his fists and hitting him as he lay on his
back on the ground, Haworth testified, in
relevant part:
A.
Well, Rod was swinging and I just moved up to either block his blow. I wasn't
going to cut him. He was coming down
to hit me again and the next thing I know, blood is going everywhere * *
*.
Q. Did
you know at that time whether you had cut Rod?
A. No,
no, and I don't think that he knew that he had been cut either because he didn't
stop.
* * * *
* *
Q. Then
what happened?
A.
Well, like I said, he didn't stop swinging. He didn't know that he had been
hurt. I didn't know that I cut him
except for I did after that initial cut because blood came all over me, but
that didn't stop him. He kept swinging and kept hitting me. I was just striking
out. (Emphasis added).
[¶16.] Following Haworth's direct examination, the prosecutor conducted his
cross-examination. He asked several questions covering how Haworth, during the
second day of trial while seated in the courtroom and in response to defense
counsel's request, had practiced opening the pocketknife with one hand in order
to be able to demonstrate the maneuver when he testified on direct examination.
Next, the prosecutor asked, without drawing defense counsel's objection, "You
have specifically used the word `cut' versus `stabbed' in your testimony today,
correct?" Haworth answered, "True." The
prosecutor then moved on and covered other aspects of Haworth's direct examination testimony concerning the
facts and circumstances of the fight.
[¶17.] After Haworth's testimony, the defense rested, the prosecution
had no rebuttal, and the evidence was closed.
[¶18.] On the fourth and final day of trial, in
the prosecutor's closing argument, he reviewed the testimony of the various
witnesses. In his review of Haworth's
testimony, the prosecutor said, in relevant part, again without drawing defense
counsel's objection:
He is
the only witness that you heard from who had to practice his presentation to
you. He told you, his testimony was that [defense counsel] wanted me to practice
opening the knife before I actually testified.
You
know, he told you that he deliberately in his testimony used the word "cut"
versus "stabbed."
[¶19.] Following the prosecutor's first phase of
closing argument, defense counsel delivered his closing argument. Then, the
prosecutor completed the final phase of his closing argument, which contained no
further reference to Haworth's having practiced
his presentation or deliberately used the word "cut."
[¶20.] After the jury deliberated, it found
Haworth guilty. Haworth filed no post-trial motions. This appeal
followed.
DISCUSSION
[¶21.] Haworth
asserts the prosecution violated his rights to effective assistance of counsel
and a fair trial as guaranteed by the Federal and Wyoming Constitutions.
U.S. Const. Amends. V, VI; Wyo. Const. art. 1, §§ 6,
10. He avers this occurred when the government deliberately and surreptitiously
invaded the defense camp, learned the nature of the defense strategy which was
to use the word "cut" instead of the word "stabbed" to describe Haworth's
self-defense use of the pocketknife, and used that information to discredit
Haworth on cross-examination and in closing argument by pointing out that
Haworth specifically used the word "cut" instead of "stabbed" in his
testimony.
[¶22.] To support his assertion, Haworth refers this court to respectable authority that
appropriately describes the nature and scope of the attorney-client relationship
in the criminal setting. We agree that "[t]he essence of the sixth amendment
right to effective assistance of counsel is, indeed, privacy of communication
with counsel. Glasser v. United
States, 315 U.S. 60, 62, 62 S. Ct. 457, 461, 86 L. Ed. 680 (1942); United
States v. Rosner, 485 F.2d 1213, 1224 (2d Cir.
1973)." United
States v. Brugman, 655 F.2d 540, 546 (4th Cir.
1981). Like the court in Rosner, "[w]e do not lightly regard so serious a
constitutional claim [as government intrusion into an accused's right privately
and freely to consult his counsel] * * *." Id. at 1224. See also State v. Milligan, 40
Ohio St.3d 341, 533 N.E.2d 724 (Ohio
1988).
[¶23.] We have carefully read the numerous
opinions treating the issue of the government's intrusion into the confidential
relationship between the criminally accused and defense counsel. They present a
variety of fact situations involving undercover agents, government informants,
co-defendants, and law enforcement personnel who have either participated in
attorney-client meetings, engaged in wiretapping or electronic eavesdropping, or
overheard conversations. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977); Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966); Brugman, 655 F.2d 540; United States v. Irwin, 612 F.2d 1182 (9th Cir. 1980); United States v. Levy, 577 F.2d 200 (3rd Cir. 1978);
Caldwell v. United States, 205 F.2d 879 (D.C. Cir. 1953); Coplon v. United
States, 191 F.2d 749 (D.C. Cir. 1951); Blackmon v. State, 653 P.2d 669 (Alaska
Ct. App. 1982); Milligan, 533 N.E.2d 724. See also Annotation, Propriety of
Governmental Eavesdropping on Communications Between Accused and His Attorney,
44 A.L.R.4th 841 (1986). Although these cases are factually distinguishable from
our case at hand, those factual distinctions do not overshadow the important
factors which all have in common and are usually considered "[i]n determining
whether there has been an invasion such as to be violative of the Sixth
Amendment right to effective assistance of counsel * * *." Brugman, 655 F.2d at
546.
[¶24.] The four factors
are:
1.
Whether the government purposely caused the informant's presence in order to
obtain confidential information or whether the informant's presence was a result
of an innocent occurrence;
2.
Whether as a result of the informant's intrusion the government obtained,
directly or indirectly, any evidence which the prosecutor then used at
trial;
3.
Whether as a result of the informant's intrusion the government obtained any
other information which the prosecutor then used in any other manner to the
substantial detriment of the accused; and
4.
Whether the government learned the details about the trial
preparation.
Weatherford,
429 U.S. at 554, 97 S. Ct. at 843, 51 L. Ed. 2d at 39. See also, Brugman, 655 F.2d at 546.
[¶25.] Considering the opinions in the above and
foregoing cases and the nature of the derived factors,
it is
apparent that mere government intrusion into the attorney-client relationship,
although not condoned by the court, is not of itself violative of the Sixth
Amendment right to counsel. Rather, the right is only violated when the
intrusion substantially prejudices the defendant. Prejudice can manifest itself
in several ways. It results when evidence gained through the interference is
used against the defendant at trial. It also can result from the prosecution's
use of confidential information pertaining to the defense plans and strategy,
from government influence which destroys the defendant's confidence in his
attorney, and from other actions designed to give the prosecution an unfair
advantage at trial.
Irwin,
612 F.2d at 1186-87.
[¶26.] Having identified the element of
substantial prejudice to the accused as being the focus of our overriding
concern in this area of the law, we also agree with the authorities that "[t]o
determine the precise degree of prejudice sustained by [an accused] as a result
of the [government's intrusion] is at once difficult and unnecessary. The right
to have the assistance of counsel is too fundamental and absolute to allow
courts to indulge in nice calculations as to the amount of prejudice arising
from its denial." Glasser, 315 U.S. at 75-76, 62 S. Ct. at 467, 86 L. Ed. at 702.
[¶27.] Applying the factors identified above to
our case at hand and keeping in mind that our overriding concern is whether the
accused has been substantially prejudiced, we have determined that, under the
facts of this case, the prosecution's intrusion into the attorney-client
relationship of Haworth and his defense counsel did not substantially prejudice
Haworth's defense. First, the deputy sheriff's
presence at the weekend trial preparation sessions with Haworth and defense counsel was not purposely caused by
the prosecution in order to obtain privileged information. Second, the only
information which the prosecution obtained and used in any manner was that
Haworth would consciously employ the word "cut"
instead of the word "stabbed" to describe his use of the pocketknife during the
fight. The trial judge, however, severely restricted the extent to which the
prosecutor could use that information for the purpose of discrediting Haworth's testimony. The prosecutor obeyed the trial
court's ruling by not inquiring into that matter "as being quoted from a lawyer
to a client." Finally, the only details about trial preparation which the
prosecution learned were those relating to the choice of words just mentioned.
Although the prosecutor asked one question of Haworth about his choice of the
word "cut," and a day later made passing reference about that word choice in
closing argument to the jury, use of the word "cut" was de minimis considering
the nature and amount of the other evidence in the case describing the
fight.
[¶28.] In our consideration of whether Haworth
was substantially prejudiced, we have also taken into account several factors
relating to Haworth's testifying in his own
behalf. He voluntarily took the stand. On direct examination, his own counsel
opened the door to a potentially much broader and more damaging
cross-examination by the prosecutor than actually occurred. His own counsel
raised the very subject of their confidential, privileged conversations and
asked Haworth to tell the jury what defense
counsel told him to say. In answer to that dangerous question, Haworth replied he had only been told to tell the truth.
Fortunately for Haworth, the prosecutor did not seize the opportunity and bore
in on cross-examination to have Haworth testify
fully and completely about the other matter defense counsel told him to say,
namely, use the word "cut" instead of the word "stabbed." A consistent line of
Wyoming
decisions informs us that
a
defendant who has voluntarily testified may be cross-examined the same as any
other witness and the latitude of cross-examination is largely within the
discretion of the court. Porter v. State, Wyo., 440 P.2d 249, 250 (1968).
Cross-examination of a witness is not, however, without its limitations. When
cross-examination is not confined to matters testified to in the examination in
chief, it must be limited to those things which affect the credibility of the
witness. See, Johnson v. State, 8 Wyo. 494, 508, 58 P. 761, 764
(1899).
Roby v.
State, 587 P.2d 641, 644 (Wyo. 1978). And, in a later case we
said:
The credibility of a
defendant in a criminal case may be tested and his testimony impeached like that
of any other witness. When he testifies in his own behalf he has no right to set
forth to the jury facts favorable to him without laying himself open to
cross-examination upon those facts. Brown v. United States, 356 U.S. 148, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958).
MacLaird
v. State, 718 P.2d 41, 47 (Wyo. 1986).
[¶29.] With these principles in mind, we recall
that Haworth testified in his own behalf and,
as part of his effort to establish self-defense, chose the word "cut" to
describe his use of the knife. That testimony on direct examination was properly
subject to cross-examination the same as any other witness' direct testimony
would be. Here, the prosecutor respected the trial judge's in-chambers rulings
in his cross-examination on that specific piece of testimony, making no
reference to Haworth's private conversations
with his defense counsel during their trial preparation sessions. It is,
perhaps, an interesting question whether those judicial rulings continued to
apply in light of defense counsel's subsequent direct examination of Haworth in which he opened the door to the subject of his
conversations with his client.4 We need not comment further on that
point.
[¶30.] After carefully examining the record and
the authorities, we are convinced that the prosecution's one cross-examination
question relating to Haworth's choice of words and one closing argument remark
to the jury about that matter properly related to matters to which Haworth
testified on direct examination. After reviewing the evidence, we do not find
that the nature of the question, the answer to it, and the remark to the jury
could have had any influence on the jury to materially affect its result in
reaching the verdict. Consequently, we hold that the prosecution's intrusion
into the attorney-client relationship of Haworth and his defense counsel, under
the facts of this case, did not substantially prejudice Haworth's defense.
[¶31.] Affirmed.
FOOTNOTES
1 Wyo. Stat. § 6-2-502
(1988):
(a) A person is
guilty of aggravated assault and battery if he:
(i) Causes serious
bodily injury to another intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human
life;
(ii) Attempts to
cause, or intentionally or knowingly causes bodily injury to another with a
deadly weapon;
(iii) Threatens to
use a drawn deadly weapon on another unless reasonably necessary in defense of
his person, property or abode or to prevent serious bodily injury to another;
or
(iv)
Intentionally, knowingly or recklessly causes bodily injury to a woman whom he
knows is pregnant.
(b) Aggravated
assault and battery is a felony punishable by imprisonment for not more than ten
(10) years.
2 The prosecutor challenged the
defense counsel's version of what he told the deputy but failed to present the
deputy sheriff to testify about the matter, infra, p. 3.
3 The subject of "coaching" was
discussed in a United States Supreme Court case where the court held that the
trial court's order preventing the accused from consulting with his counsel
about any subject during a 17-hour overnight recess between the accused's
direct-and-cross-examination violated the accused's sixth amendment right to
counsel. In relevant part, Chief Justice Burger writing for the Court
said:
The opposing
counsel in the adversary system is not without weapons to cope with "coached"
witnesses. A prosecutor may cross-examine a defendant as to the extent of any
"coaching" during a recess, subject, of course, to the control of the court.
Skillful cross-examination could develop a record which the prosecutor in
closing argument might well exploit by raising questions as to the defendant's
credibility, if it developed that defense counsel had in fact coached the
witness as to how to respond on the remaining direct examination and on
cross-examination.
Geders v. United
States, 425 U.S. 80, 89-90, 96 S. Ct. 1330, 1336, 47 L. Ed. 2d 592, 600
(1976).
For a useful and
comprehensive analysis of the witness preparation problem, see John S.
Applegate, Witness Preparation, 68 Texas L.Rev. 277 (1989). Although Professor
Applegate examines the many aspects of the problem in the civil litigation
context, his article is illuminating to the criminal law practitioner as well.
With respect to the specific issue in the case at bar, a lawyer's suggesting
actual language to be used by a witness, Professor Applegate, relying on
District of Columbia Bar, Legal Ethics Comm., Op. No. 79 (1979) (hereinafter Op.
No. 79), notes that that practice "may be appropriate, as long as the ultimate
testimony remains truthful and is not misleading." Applegate, supra note 5 at
279, and accompanying text.
Op. No. 79
specifically concerned a witness' written testimony submitted in an adjudicatory
hearing before a federal regulatory agency. Nevertheless, the opinion
states
that the
particular words in which testimony, whether written or oral, is cast originated
with a lawyer rather than the witness whose testimony it is has no significance
so long as the substance of that testimony is not, so far as the lawyer knows or
ought to know, false or misleading * * *. [T]hat a lawyer suggests particular
language to a witness means only that the lawyer may be affecting the testimony
as respects its clarity and accuracy; and not necessarily that the effect is to
debase rather than improve the testimony in these
respects.
Op. No. 79 at 139
(provided by the Texas Law Review, Austin, Texas).
4 Applegate, supra note 3 at 290 n.
52, points out, "Logically, the [attorney-client] privilege should apply only to
factual communications from the
client to the lawyer. In practice
this distinction is difficult to maintain, because much communication from the
lawyer to the client reveals privileged client
communications."
With respect to the
issue of waiver of the attorney-client privilege, "[a] privilege-holder who
testifies * * * at trial about his privileged communications with his attorney *
* * waives his right to invoke a privilege against cross-examination or
testimony by others with regard to the same matter." Developments in the Law -
Privileged Communications, 98 Harv. L.Rev. 1450, 1633
(1985).
URBIGKIT, Justice,
dissenting.
[¶32.] This appeal tests the basic morality and
integrity of the criminal trial process within Wyoming's judicial system. By this decision, I
perceive Wyoming's courts to come up wanting. This case
portrays hardball lawyering in a most virulent and divisive fashion.1 As a morality case, this appeal
transcends the litigants and, for that matter, their counsel as we examine
standards for Wyoming's practice of
law.
[¶33.] What happened? Counsel for a defendant
involved in a serious assault charge wanted to familiarize his jailed and
nonbailed client with the courtroom atmosphere. The sheriff's officialdom agreed
that they would cooperate by making available deputy sheriffs to insure custody
of the defendant during the courtroom trial preparation if counsel would be
responsible to compensate the deputies for the extra duty. Defense counsel
states, and it is uncontroverted by any countervailing sworn evidence, that he
understood confidentiality would be maintained by the deputies regarding
attorney/client discussions and trial preparations in the courtroom
atmosphere.
[¶34.] What happened next? A deputy sheriff
eavesdropped on the trial preparation session and, thereafter, upon the deputy
prosecutor's request, recited to him everything that had occurred between the
defendant and his attorney. The prosecuting attorney then used his inside
knowledge of the trial preparation session for cross-examination at
trial.
[¶35.] Consequently, the majority blames defense
counsel and excuses the unethical conduct on a substantial prejudice
distillation from the abject violation of everything that is basic to an ethical
and proper judicial institution. I find this approach totally abhorrent.
Standards of both conduct and honesty are clearly dispossessed. This is what we
know, from a high volume of present legal literature, as hardball lawyering,
about which unrelenting criticism flows forth from the bench and bar as well as
the public media.
[¶36.] We establish a result-oriented standard
of conceptualization that nothing is wrong as long as you get by with it. Even
Watergate and its fallout, as well as Arms-for-Iran, should have taught us
something about this standard of legal ethics and
morality.
[¶37.] To provide one partial answer, I would
disabuse as acceptable the "get by with it" syndrome and reverse this conviction
to require a retrial for justice to be insulated from prosecutorial abuse. I
write, strongly, since we may be misperceived as signaling an approval of wired
conference rooms and jail interview locations within the sheriff's control. In
the past professional experience of Wyoming lawyers, this status was certainly not
unknown or not at least unsuspected to seasoned trial counsel who became
involved in representation of an accused lacking the resources to bond out of
the local jail. This attitude should not now be countenanced to achieve either a
disposition affirming at any cost or accepting in "justice delivery" that any
injustice is justified to accomplish a conviction. Competent prosecution is
faced by perhaps one or, at the most, two acquittals with at least every hundred
criminal charges where nine out of ten are resolved by plea and the remaining
trials favor conviction. Within these few cases, fairness, honesty and morality
are not an undue burden on accomplished justice.2
[¶38.] I am concerned that the perspective
provided in the majority opinion is that this is a coached witness case. Any
competent trial attorney prepares his witnesses, including discussion about the
power of words. Tort plaintiffs talk about the "horrible crash" and the blood
and broken bones while defense counsel address the "accident" and the
unavoidable incident resulting from something other than the negligence of their
insured.
[¶39.] Anyone who thinks that jurors are unaware
of emotionally impactful words has little faith in the intelligence of our
citizenry. To demonstrate a contended lack of prejudice from trial error to the
accused could be, linguistically, "a weasel worded concept created to cover up
and hide lies, broken agreements and prosecutorial unethical conduct
constituting hardball lawyering." Alternatively defined, harmless error is,
"only a status that the defendant is entitled to a fair trial and not a perfect
trial and defendant's perception of error was, in any event, only harmless."
Either way, we address the same problem of recognized trial error. The power of
words is applied for a result-oriented conclusion in both cases.3
[¶40.] I doubt that anyone with experience
practicing law in Wyoming will be ethically convinced that the
conduct of the deputy sheriff, followed with the use of the information by the
deputy prosecutor, can provide honor, acclaim or respectability to this state's
judicial system. "Anything goes" is not my criteria of our profession nor will I
accept this standard as the ethical mainline of a great profession which each of
us has a responsibility to maintain.
[¶41.] The tragedy, and likely the travesty, of
this appeal is that again this court determines a case with only half the facts.
The decisional process used broadcasts not only the unanswered but really
unaddressed question - where is the truth - the public defender's claim of
confidentiality, the deputy prosecuting attorney's response, or the hearsay
attributed to the deputy sheriff who became the critical figure in the events
but was never brought before the district court to explain what did happen and
what assurances of confidentiality he provided.
[¶42.] Intrinsic to any adequate analysis of
applicable law would be some recitation of how those issues were factually
created during this litigative process. Unfortunately, like Brown v. State, 816 P.2d 818 (Wyo. 1991); Cooney v. ParkCounty,
792 P.2d 1287 (Wyo. 1990), cert. granted and
judgment vacated ___ U.S.
___, 111 S. Ct. 2820, 115 L. Ed. 2d 965 (1991); and Gale v. State, 792 P.2d 570
(Wyo. 1990),
we again adjudicate in ignorance.
[¶43.] What we do know is Steven Haworth was in
jail, charged with a knife-involved aggravated assault. His participation is not
at issue. The questions are was it self defense or was it inappropriate
aggression?
[¶44.] Unable to post bond, Haworth was appointed a public defender to serve as his
counsel. This was May, 1990 and the public defender had been admitted to
practice law for about two years following graduation from the University of
Wyoming College of Law. Recognizing the difficulty of the case and his somewhat
limited experience, the attorney undertook a program of familiarization with the
courtroom and concurrent trial preparation of his client in order to meet
desired standards of trial preparation. The public defender decided to hold a
preparatory session with his client in the courtroom rather than in the jail.
The sheriff's office was willing to cooperate, provided the public defender's
office would be responsible for paying the deputy sheriffs' off-duty special
compensation for their services and being present during the courtroom
activities so Haworth would not inappropriately
depart. Apparently, there were actually two deputies present, but the second
person was not named or quoted by the prosecution in the succeeding court
comments and statements. And so the trial preparation session was held in the
big courtroom of the Natrona County, Wyoming courthouse.
[¶45.] That is as far as we get in established
facts, except one more item. The deputy prosecutor found out that the public
defender had conducted Haworth's conference and
trial preparation session in the courtroom and called one of the deputy sheriffs
to find out "what had gone on." Obviously, as the subject was explained on the
record, the deputy sheriff, after being employed by the public defender, was
asked by the deputy prosecutor to report on what had occurred. The trial court
accepted the deputy prosecutor's hearsay contention that the deputy sheriff did
just that and described everything he had seen and heard during the extended
attorney/client courtroom trial preparation session. The deputy prosecutor used
the confidential information in both his preparation and trial
examination.
[¶46.] What do we not know? The deputy
prosecutor did not testify under the punitive constraints of disbarment or
felony perjury about what he said to the deputy sheriff regarding the
information obtained or what the deputy sheriff said about requested
confidentiality asked of him by the public defender. The deputy sheriff was not
brought before the trial court, put under oath, or otherwise examined to obtain
a factual recitation of his involvement.
[¶47.] The contradictory statements reveal the
trial court did not have the whole truth. The deputy prosecutor reported to the
trial court that the deputy sheriff told the deputy prosecutor that he, the
deputy sheriff, had told the public defender: "`Yes, I will tell people what is
going on here. I will tell them.'" The trial court accepted this hearsay upon
hearsay statement for the truth of the matter asserted. The public defender
responded: "100 percent opposite, Your Honor.", emphatically and categorically
stating that he had understood confidentiality would be maintained and he had so
stated to the deputy sheriff.
[¶48.] The problem with which we are faced is
that one of the two attorneys, or perhaps also the deputy sheriff, did not tell
the whole truth. The trouble is that the deputy sheriff was not called to
testify under oath to defend the statements attributed to
him.
[¶49.] Either, we have egregious incompetency of
defense counsel in deliberately exposing his client to prejudicial repercussions
at trial, or, competent, well-intended and entirely proper efforts aborted and
prostituted by the prosecutorial invasion of attorney/client confidentiality.
This record does not preclusively establish, which scenario is correct?4 This question should be tested by
partial remand for a fact finding hearing with sworn testimony. People v. Boone,
51 A.D.2d 25, 379 N.Y.S.2d 181 (1976); State v. Milligan, 40 Ohio St.3d 341, 533 N.E.2d 724 (1988). If not that, then formal disciplinary review by the Wyoming
Board of Professional Responsibility seems imperative. SeeBrooks v.
Zebre, 792 P.2d 196 (Wyo. 1990).
[¶50.] One does have to recognize the improper
witness coaching counterattack is a not unusual response to Haworth's contentions about prosecutorial misconduct. I
doubt that any prosecutor would want trial preparation conferences of police
officers with prosecuting attorneys to be recorded for pretrial review and
opposition strategy planning by defense counsel.
[¶51.] This record establishes that the trial
court was appalled with the communication between the deputy sheriff and the
deputy prosecutor and the deputy prosecutor's intended use for trial benefit.
The part of the record where the subject was considered
reflects:
THE
COURT: I have ruled on that.
I want
to know about this conversation with the deputy.
[PUBLIC
DEFENDER]: Your Honor, I told both those deputies flat out, I said you realize
that you are working for me and none of this goes out of this room. I had no
-
I don't
have any options, Your Honor. I get him in there or -
THE
COURT: That is not a question in my mind. I think that that deputy should not be
conveying -
[PUBLIC
DEFENDER]: I agree wholeheartedly.
THE
COURT: But now counsel says, you mean I can't ask him if anybody told him what
words to use in his testimony?
[PUBLIC
DEFENDER]: Your Honor, any time that you sit down and prepare a witness, I think
if an attorney is doing a good and proper job, if my client is kind of gnarly
and wants to say profanities all through his prosecution, what we are going to
have is have my client being basically prejudiced by his own language. In
telling him, sir, when you testify, try not to use profanity, I am not
objectively altering his testimony. When I say, sir, instead of the word cut,
try to think about the word stab -
THE
COURT: Well -
[PUBLIC
DEFENDER]: - I am not altering his testimony because it is very obvious that the
individual did that. What we are trying to do is basically give him the language
skills that he needs to move forward.
THE
COURT: I think there are ways that the State is protected in their cross
examination to get at what you are getting at. I think in view of the fact that
the information of someone telling him, you know, the play on words, whether it
is stabbed or cut, resulted from a conveyance of information by the deputy that
had to be there. In other words, the Defendant has to prepare his case and I
suppose that had you called me, I would have said, shackle him and have the
deputy step outside. But nobody called me. I don't know whether you would be
aware that that possibility existed, but anyhow, I can see that that is not -
And what we are after here is a fair trial, and whether it be the State or the
Defendant.
That just strikes me as being unfair. Not
only that, but it strikes me as being a potential reversible
error.
I think you
can get at it in cross examination without referring to the conversations
between counsel and the Defendant. That would be my
ruling.
[PROSECUTOR]:
My question will be, Your Honor, and I'll give it to you now because I don't
want to - You have been specifically instructed to use the word "cut" versus
"stabbed?"
[PUBLIC
DEFENDER]: That comes straight out of my work product.
THE
COURT: That, I find, is objectionable.
[OTHER
DEFENSE COUNSEL]: Judge, for purposes of the record and as the Senior Assistant
Public Defender, the Natrona County Sheriff would not allow a jailer to come
down in to the Courtroom with Mr. Haworth because he can't make bond, and we
made arrangements through our fiscal officer in Cheyenne, the Public Defender Fiscal Office.
The Public Defender's office is paying Deputy [sheriff] for his overtime in
coming down here during that period of time and that is -
THE
COURT: Well, like I say, it just strikes
me as unfair.
(Emphasis
added.)
[¶52.] The confidentiality requirements of an
attorney and his employees is not only established by ethical prohibitions and
obligations, see, e.g., Wyoming Rules of Professional Conduct for Attorneys at
Law, Rule 1.6, but also from a long history of privilege against use in
evidence. Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582
(1934). In this case, the deputy sheriff, when accepting the separate
employment, should have been subject to the ethical responsibilities and the
legal obligations attendant an employee of the attorney. If the deputy
prosecutor provided legal advice in contravention of that obligation, a further
serious ethical violation by the deputy prosecutor would additionally have
occurred under the requirements of Wyoming Rules of Professional Conduct, Rule
3.3, "mak[ing] a false statement of material fact * * * to a tribunal." This
constraint of the standards of responsibility of practicing attorneys
unfavorably addresses counsel lying to the court. See also Wyoming Rules of
Professional Conduct, Rule 3.4, involving fairness to the opposing party and
litigant counsel, among other things, offering an inducement that is prohibited
by law. Candor and fairness are not inconsequential responsibilities. See also
The National District Attorneys Association, National Prosecution Standards §
6.5 (2d ed. 1991).
[¶53.] The law review article regarding
privileged communications quoted in the majority opinion manages to encumber 216
pages of text without significantly or even directly considering a legal
profession standard of honesty or basic ethical foundations for the practice of
law. Developments in the Law, Privileged Communications, 98 Harv.L.Rev. 1450
(1985). Unfortunately, that omission of morality concerns and disposition of
ethical responsibilities is recreated in its logically absurd and moral vacuity
by this court's opinion citation. Incredibly, in the pristine absence of reason
or logic, the law review stated, without a single citation of authority for
substantiation, a concept that violated confidences of the lawyer lacked
significance unless occurring within the courtroom.5 This is worse than the law of the
jungle. It is an invitation to debase morality. Even worse is the present
epidemic of hardball lawyering, pervasive if not constituting a terminal
disease. Evil, of course, debases the procurer most of
all.
[¶54.] In his recent dissent, Justice Stevens
stated in United States v. Williams, ___ U.S. ___, 112 S. Ct. 1735, 1749, 118 L. Ed. 2d 352 (1992):
Like the Hydra slain
by Hercules, prosecutorial misconduct has many heads. Some are cataloged in
Justice Sutherland's classic opinion for the Court in Berger v.
United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314
(1935):
"That the
United
States prosecuting attorney overstepped the
bounds of that propriety and fairness which should characterize the conduct of
such an officer in the prosecution of a criminal offense is clearly shown by the
record. He was guilty of misstating the facts in his cross-examination of
witnesses; of putting into the mouths of such witnesses things which they had
not said; of suggesting by his questions that statements had been made to him
personally out of court, in respect of which no proof was offered; of pretending
to understand that a witness had said something which he had not said and
persistently cross-examining the witness upon that basis; of assuming
prejudicial facts not in evidence; of bullying and arguing with witnesses; and
in general, of conducting himself in a thoroughly indecorous and improper
manner. . . .
"The prosecuting attorney's
argument to the jury was undignified and intemperate, containing improper
insinuations and assertions calculated to mislead the jury." Id., at 84-85, 55 S.Ct.,
at 631-632.
This, of course, is
not an exhaustive list of the kinds of improper tactics that over-zealous or
misguided prosecutors have adopted in judicial proceedings. The reported cases
of this Court alone contain examples of the knowing use of perjured testimony,
Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791
(1935), the suppression of evidence favorable to an accused person, Brady v.
Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215 (1963), and
misstatements of the law in argument to the jury, Caldwell v. Mississippi, 472 U.S. 320, 336, 105 S. Ct. 2633, 2643, 86 L. Ed. 2d 231 (1985), to name just a
few.
[¶55.] It is noteworthy that the quotation of
Justice Sutherland and his long list of tactics of misconduct fall far short of
what we have here which is intervention to disrupt attorney/client
confidentiality in trial preparation.
[¶56.] It is sad, when writing as a state
Supreme Court jurist, that the United States Supreme Court is so
frequently called as the arbiter to justice to understand and enforce due
process, fairness and morality as concepts equally involved in both state
criminal court proceedings and the federal court prosecutions. As constitutional
law under the United States Constitution has matured and solidified, the general
dedication to due process in criminal prosecutions has remained unquestioned. A
consistency in delineation, however, may not be necessarily
demonstrable.
[¶57.] A quick search to see how courts are
required to define and provide constitutional rights to the criminally charged
in this context of prosecutorial overreaching is surely informative, and
tragically relevant. "[O]ne of the primary or core functions of [the state
Supreme Court] is to ensure that each criminal defendant receives a fair trial."
State v. Olson, 482 N.W.2d 212, 21592048917 (Minn. 1992).
[¶58.] In Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935), the federal conviction was reversed where the
United States attorney misstated the facts in cross-examination, put words in
the mouth of the witnesses which were unsaid, of pretending, suggesting,
bullying and arguing with the witness. This case followed Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791
(1935), where the state court permitted knowing use of perjured testimony which
was found to be an actionable due process injury.6
[¶59.] These cases were followed by Glasser v.
United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), recognizing that a right to counsel was
eviscerated by a conflict of interest disability; Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), where the prosecutor failed to
correct perjured testimony; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the state court denied assistance of counsel to the indigent
defendant; Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), involving the bugged automobile and alleged incriminating
statements "deliberately elicited [by federal agents] from [the defendant] after
he had been indicted and in the absence of his counsel;" Black v. United States,
385 U.S. 26, 87 S. Ct. 190, 17 L. Ed. 2d 26 (1966), surreptitiously intercepting
conversations between counsel and defendant by concealed jail monitoring device;
Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966), law
enforcement officers induced a friend of the defendant to insinuate himself into
the defendant's entourage in order to spy for the prosecutors;7 O'Brien v. United States, 386 U.S. 345, 87 S. Ct. 1158, 18 L. Ed. 2d 94 (1967), electronic eavesdropping installed
without a warrant in the commercial establishment of defendant's acquaintance;
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967),
post-indictment lineup conducted in the absence of counsel; Santobello v.
New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), state court plea agreement breached by the
prosecuting attorney; Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975), due process denial of right of defense counsel to make final
argument as justified by state statute; and Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976), trial court order denying defendant's
counsel right to confer during the overnight recess. Cf. Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989), fifteen minute recess during the day.
[¶60.] These introductory cases then brought the
court to Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30
(1977), where a confederate informer as a spy provided informational access into
attorney/client conferences with the case arising as a 42 U.S.C. § 1983 civil
rights proceeding; Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424
(1977), cert. denied 440 U.S. 919, 99 S. Ct. 1242, 59 L. Ed. 2d 471 (1979),
represented defendant identified by the victim at a preliminary hearing when
defendant's counsel was not present; United States v. Morrison, 449 U.S. 361,
101 S. Ct. 665, 66 L. Ed. 2d 564 (1981), federal agent meeting with represented
defendant in absence of attorney seeking "cooperation;" and Maine v. Moulton,
474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985), wired agent of police seeks
inculpatory statement of co-defendant as a violation to right of counsel after
indictment. Conversely, prosecutors in federal courts have no obligation in
presentations to the grand jury to fairly present favorable as well as
unfavorable evidence. Williams, ___ U.S. ___, 112 S. Ct. 1735.
[¶61.] The character of activities recognized in
case law where law enforcement officials or prosecutors seek to acquire leverage
in litigative advantage is almost endless, even if we exclude accidental
exposures to conference contacts or telephone calls between attorneys and
clients. I ask, in deep concern, where do we choose to draw the line? To which
of the following will the judiciary emphatically "just say no" as permitted
prosecutorial conduct: telephone tap on calls from client to attorney, Coplon v.
United States, 191 F.2d 749
(D.C. Cir. 1951), cert. denied 342 U.S. 926, 72 S. Ct. 363, 96 L. Ed. 690
(1952); recording courtroom communications at the desk between the attorney and
his client by pointing a microphone in the direction of opposing litigant, South
Dakota v. Long, 465 F.2d 65 (8th Cir. 1972), cert. denied 409 U.S. 1130, 93 S. Ct. 951, 35 L. Ed. 2d 263 (1973); bugging the attorney's place of conference,
his office or the client's home or business, Black, 385 U.S. 26, 87 S. Ct. 190;
O'Brien, 386 U.S. 345, 87 S. Ct. 1158; listening to confidential discussions by
moving within earshot when the client talks to his attorney, Mastrian v.
McManus, 554 F.2d 813 (8th Cir.), cert. denied 433 U.S. 913, 97 S. Ct. 2985, 53 L. Ed. 2d 1099 (1977); requesting that the defendant, without contact with his
counsel, become an undercover informer for other contended crimes involving the
same course of activities, Morrison, 449 U.S. 361, 101 S. Ct. 665, 66 L. Ed. 2d 564; United States v. Irwin, 612 F.2d 1182 (9th Cir. 1980); United States v.
Walker, 839 F.2d 1483 (11th Cir. 1988); planted spy in the conferences between
defendant and counsel with identity revealed, listening to strategy sessions
between the defendant and his attorney, Weatherford, 429 U.S. 545, 97 S. Ct. 837;
Moulton, 474 U.S. 159, 106 S. Ct. 477; Caldwell v. United States, 205 F.2d 879
(D.C. Cir. 1953); United States v. Zarzour, 432 F.2d 1 (5th Cir. 1970); United
States v. Mastroianni, 749 F.2d 900 (1st Cir. 1984); co-defendant turns and
communicates defense strategy to prosecutor, United States v. Levy, 577 F.2d 200
(3rd Cir. 1978); cf. United States v. Brugman, 655 F.2d 540 (4th Cir. 1981);
happenstance monitoring effort which intercepts calls with attorney, United
States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied 415 U.S. 960, 94 S. Ct. 1490, 39 L. Ed. 2d 575 (1974); and informant with recorder hides in the
closet while attorney and client discuss trial strategy, United States v.
Gartner, 518 F.2d 633 (2d Cir.), cert. denied 423 U.S. 915, 96 S. Ct. 222, 46 L. Ed. 2d 144 (1975).
[¶62.] These prosecutorial overreaching cases
are not confined to the federal forum. Denial of the right for defendant in
custody to confer in private with his counsel required the conviction to be set
aside in State v. Holland, 147 Ariz. 453, 711 P.2d 592 (1985); admission of
confidential trial site attorney/client discussion by eavesdropping police
witness required conviction reversal in Blackmon v. State, 653 P.2d 669 (Alaska
App. 1982); frequently used jail conference room bugged, Fajeriak v. State, 520 P.2d 795 (Alaska 1974) (remanded for proper evidentiary hearing to determine
what occurred, if confidentiality breached, retrial to be required with
information and benefit from information to be excluded); jail conference room
for attorney/client meetings had two-way search mirrors enabling use of
information obtained in the conference required case reversal in People v.
Harfmann, 38 Colo. App. 19, 555 P.2d 187 (1976); agreement regarding use of
video tape breached, evidence suppressed, People v. Fisher, 657 P.2d 922 (Colo.
1983); among a group of protest arrestees, there were undercover police officers
who attended joint strategy sessions of defendant after arrest resulting in
charges dismissed in strong analysis of the right to counsel and the importance
of confidentiality, Barber v. Municipal Court For San Luis Obispo County
Judicial Dist. of San Luis Obispo County, 24 Cal. 3d 742, 157 Cal. Rptr. 658, 598 P.2d 818 (1979); taped discussion between attorney and client in jail conference
room, Wilson v. Superior Court, In and For Los Angeles County, 70 Cal. App. 3d 751, 139 Cal. Rptr. 61 (1977) (where an interesting remedy was provided that no
cross-examination of the defendant was permitted, no rebuttal testimony
authorized, no use of the information justified directly or indirectly);
tampering with the attorney requiring the defendant fire his attorney to be
considered for a plea bargain, Boulas v. Superior Court, 188 Cal. App. 3d 422, 233 Cal. Rptr. 487 (1986); microphone in jail conference room freely used to listen
to attorney and defendant, State v. Cory, 62 Wn.2d 371, 382 P.2d 1019 (1963);
see also State v. Grant, 9 Wn. App. 260, 511 P.2d 1013 (1973), cert. denied 419 U.S. 849, 95 S. Ct. 87, 42 L. Ed. 2d 78 (1974) (where tainted evidence carefully
excluded from trial) and State v. Baker, 78 Wn.2d 327, 474 P.2d 254 (1970);
state would have the burden of providing evidence for conviction not found from
that evidence which was obtained as a result of the illegally monitored
conversations, Holland, 711 P.2d 592; counsel denied right to talk to client in
private, In re Rider, 50 Cal. App. 797, 195 P. 965 (1920); State ex rel. Tucker
v. Davis, 9 Okla. Cr. 94, 130 P. 962 (1913).8
[¶63.] Tape recording of conference between the
defendant and his counsel was permitted in State v. Sugar, 100 N.J. 214, 495 A.2d 90 (1985), cert. denied 122 N.J. 187, 584 A.2d 247 (1990). See also State
v. Sugar, 84 N.J. 1, 417 A.2d 474 (1980), cert. denied 122 N.J. 187, 584 A.2d 247 (1990). The remedy provided in the second appeal where the conviction was
reversed was to exclude the offending police officer as a witness at the trial.
As a tainted witness, he became ineligible to testify.
[¶64.] Connecticut was similarly faced with an eavesdropping case
in State v. Ferrell, 191 Conn. 37, 463 A.2d 573 (1983). A Miranda
violation occurred and the resulting conviction was reversed. People v.
Knippenberg, 66 Ill. 2d 276, 6 Ill.Dec. 46, 362 N.E.2d 681 (1977) involved the
impeachment use of confidential communication between defendant and defendant's
investigator. The written summary of the investigator's conference report was
"somehow" obtained by the prosecution without the knowledge of either the
defendant or his counsel which resulted in the reversal of the
conviction.
[¶65.] In an Ohio case, a deputy sheriff stood close to a
defendant who was talking to his attorney on the telephone and "secretly taped
his remarks" - a constitutional violation resulted. Anything learned was
suppressed. The court discerned that neither mere suppression nor dismissal was
appropriate in every case irrespective of the circumstances. The state's burden
was to demonstrate that there was no prejudice to the defendant. Milligan, 533 N.E.2d 724. The use of an undisclosed police agent to attend attorney/client
conference to obtain information required dismissal of the criminal charge in
Graddick v. State, 408 So. 2d 533 (Ala.Cr.App. 1981), cert. denied 458 U.S. 1106, 102 S. Ct. 3483, 73 L. Ed. 2d 1366 (1982). The taint could not be neutralized. Surreptitious electronic
interception by police of attorney/client communication and defense strategy was
discussed in Matter of Kozak, 256 N.W.2d 717 (S.D. 1977). The case provided a
curious distinction between use of electronics or informants, but the pretrial
remedy was an extensive disclosure and rights of suppression thereafter.
Likewise, surreptitious taping of telephone calls between attorney and client in
jail was present in Milligan, 533 N.E.2d 724.
[¶66.] An undercover agent was wired to obtain
information at defendant/counsel conferences - a federal constitutional
violation - in People v. Squitieri, 49 A.D.2d 374, 375 N.Y.S.2d 124 (1975). The
conviction was reversed for retrial and a suppression motion granted. General
business office telephones were bugged and telephone calls were recorded in
People v. Morhouse, 21 N.Y.2d 66, 286 N.Y.S.2d 657, 233 N.E.2d 705 (1967).
Telephone calls were overheard by police and a hearing was required to consider
depravation of opportunity for private conversation in Boone, 379 N.Y.S.2d 181.
Cf. People v. Harris, 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205 (1982),
cert. denied 460 U.S. 1047, 103 S. Ct. 1448, 75 L. Ed. 2d 803 (1983), overheard telephone call to attorney, considered defendant's choice
to speak in presence of the police.
[¶67.] There is a strong and clearly
identifiable connection and trend among this illustrative example of cases.
First, strongly condemned prosecutorial misconduct had occurred. Additionally,
and not secondly, action was required which included reversal or suppression or
a fact finding hearing for most cases.
[¶68.] No extended search was required to
develop this sample of cases reflecting prosecutorial efforts, in one way or
another, that invade the confidentiality between the defendant and his attorney;
the listed cases are only illustrative and not exhaustive. No less illustrative
and even more so persuasive or decisive should be the strong and effective
retributive action taken by the judiciary to do two things: (a) assure justice
in the instant case; and (b) teach a lesson of the improvidence of any continued
practice. I absolutely rebel at the prospect of returning to bugged conference
rooms in Wyoming county jails. No less offensive to me
is the conduct of the kind represented in this case where the deputy
prosecutor's direction of activity was to surreptitiously obtain "leverage"
rather than use the established adjudicatory processes and submit the issue for
jury resolution for a fair determination of guilt or innocence. "Anything goes"
should not be the tenant by which we obtain criminal convictions. It is more
than a matter of passing concern that those among our citizenry who are first to
criticize the operational jury system are the last to condemn overreaching and
prosecutorial dissection of the Bill of Rights protections provided in the state
and federal constitutions.
[¶69.] I am disturbed because surely anyone who
has modest experience in the current practice knows that what the deputy
prosecutor did in this case was totally inappropriate. Moral, efficient and
highly successful prosecutors, of which the number are many in the Wyoming adjudicatory
system, need not resort to tactics of this character. I write in concern because
we may, by opinions such as this in justifying conviction, also demean the
morality and the honor of the system dedicated to justice. National District
Attorneys Association, supra, at 21, commentary, states it
well:
The prosecutor's
obligation to comply with the ethical code and rules of his jurisdiction is a
fundamental and minimal requirement. When the prosecutor falls below that
standard, he may expect sanctions impacting upon a particular case or on the
individual prosecutor.
However, the dignity
and honor of the profession call for compliance with a higher standard of
conduct, one of professionalism. This standard requires the prosecutor to bring
integrity, fairness, and courtesy into all interactions, be they with opposing
counsel, the court, jurors, or the defendants.
The
present American societal discord between rational and historical standards of
ethical conduct which come into conflict with desired efficiencies and
effectiveness for prosecution is not unnoticed as a major battle of contemporary
American criminal law. See Symposium, 53 U.Pitt.L.Rev. 271 (1992).9 For those of us who recall the
explosive growth and pervasive encroachment of the totalitarian approach to
judicial rights of fifty or sixty years ago, we cannot view with anything but
horror and extreme consternation academic analyses such as provided in the
University of Pittsburgh Law Review Symposium.
[¶70.] Whatever may be the functionality or
factor of the new mode of federal law prosecution and immoral counsel conduct,
we need not overlay the Wyoming judicial system with an equal
character of result-oriented disregard of fairness, ethics and constitutional
rights. It would be well to take heed of what Bennett L. Gershman concluded in
his contribution to the University of Pittsburgh Law
Review Symposium:
This article attempted
to describe the recent accretion of power by prosecutors, the effect it has had
on the adversary system, and the failure of judicial or disciplinary bodies to
restrain prosecutorial excesses. Given the well-documented existence of
misconduct, the current laisez-faire attitude of the courts, and the
disappointing response of professional grievance committees, there is a
potential for even greater misuse of "the awful instruments of the criminal
law."
Bennett
L. Gershman, The New Prosecutors, 53 U.Pitt.L.Rev. 393, 458 (1992) (quoting
McNabb v. United States, 318 U.S. 332, 343, 63 S. Ct. 608, 614, 87 L. Ed. 819 (1943)).
[¶71.] I dissent in supposition that the best
place to start in Wyoming is reversal and remand of a conviction
where prosecutorial misconduct is not just apparent, but undeniable. Harmless
error escapes are not an appropriate way to address abject failures in ethics
and integrity. Even before that occurs, I would like to have the testimony of
the attorneys and law enforcement personnel on the record, under oath, and within
felony conviction exposure if perjury is committed by the
participants.
[¶72.] The more academic problem with the
majority decision as it considers deliberate prosecutorial intrusion into the
confidentiality of defense counsel and his client is that no rule is provided
whether prophylactic or per se. Furthermore, no consideration is given to excuse
or justify motivation. Even more emphatically, I am concerned about a failure to
analyze and apply specific provisions of Wyoming's Code of Professional Conduct and the
due process guarantees of our state constitution. To put the topic in
perspective, if we rely wholly on federal law precepts, 2 Wayne R. LaFave and
Jerold H. Israel, Criminal Procedure § 11.8, at 74-76 (1984) (footnotes omitted)
would provide some thoughtful perspective:
The basic issue
presented in Weatherford v. Bursey was whether the Supreme Court would adopt
what it described as a "per se" or "prophylactic rule." The lower court had
adopted such a rule. Relying on Supreme Court precedent, it had held that
"whenever the prosecution knowingly arranges or permits intrusions into the
attorney-client relationship the right to counsel is sufficiently endangered to
require reversal and a new trial." A divided Supreme Court held that the lower
court had misread the relevant precedent and had adopted a rule that failed to
give sufficient weight to the "necessity of undercover work and the value it
often is to effective law enforcement." * * *
Weatherford's
conclusion that a state invasion of the lawyer-client relationship does not
violate the Sixth Amendment unless there is at least a realistic likelihood of a
governmental advantage arguably was limited to cases in which there was a
significant justification for the invasion. In United States v.
Morrison, the Court dealt with an invasion that lacked any significant
justification. In that case, D.E.A. agents, although aware that the defendant
had been indicted and had retained counsel, met with her without defense
counsel's knowledge or permission, and while seeking her cooperation, disparaged
her retained attorney. The court of appeals held that defendant's right to
counsel was violated irrespective of allegation or proof of prejudice to her
case, and that the only appropriate remedy was a dismissal of the prosecution
with prejudice. The Supreme Court unanimously reversed. * *
*
* * * *
* *
In declining to reach
the government's contention that a showing of prejudice would be needed to
establish a Sixth Amendment violation, the Morrison opinion left open the
possibility that the Court might adopt a per se standard for those state
invasions of the lawyer-client relationship that are not supported by any
legitimate state motivation.
[¶73.] I find here neither cogent case law
analysis justifying the confidentiality intrusion nor abiding principles upon
which the justice delivery system, including investigative officers,
prosecutors, defense counsel and our courts, can rely to provide the standard of
morality and fairness we are directed to require. That is the "support, obey and
defend" responsibilities of Wyo.Const. art. 6, § 20. My particular problem with
the majority decision is the absence of a discussion of ethics and legal
morality.
[¶74.] I respectfully dissent - with anguish and
concern.
FOOTNOTES
1 For current law
journal review, see Timothy P. Terrell & James H. Wildman, Essay, Rethinking
"Professionalism", 41 Emory L.J. 403 (1992); Richard C. Baldwin, Essay,
"Rethinking Professionalism" - And Then Living It!, 41 Emory L.J. 433 (1992);
Jennifer Gerarda Brown, Essay, Rethinking "The Practice of Law", 41 Emory L.J.
451 (1992); Monroe H. Freedman, Essay, Professionalism in the American Adversary
System, 41 Emory L.J. 467 (1992); Kenneth L. Penegar, Essay, The Professional
Project: A Response to Terrell and Wildman, 41 Emory L.J. 473 (1992); Robert E.
Rodes, Jr., Essay, Professionalism and Community: A Response to Terrell and
Wildman, 41 Emory L.J. 485 (1992); Jack L. Sammons, Jr. & Linda H. Edwards,
Essay, Honoring the Law in Communities of Force: Terrell and Wildman's Teleology
of Practice, 41 Emory L.J. 489 (1992); Gary L. Monserud, Essay, A View of Law
From a Transplanted South Dakotan, 37 S.D.L.Rev. 1 (1992); M.A. Cunningham,
Comment, The Professional Image Standard: An Untold Standard of Admission to the
Bar, 66 Tul. L.Rev. 1015 (1992); Laura K. Thomas, Comment, Professional Conduct
- Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C.: The Code of
Professional Responsibility as a Basis for Attorney Liability, 22
Mem.St.U.L.Rev. 169 (1991); Steven Lubet, Short Story, Civility: A Tale of
Deconstruction and Constraint, 1992 Wis.L.Rev. 157 (1992); and Timothy W. Floyd,
Realism, Responsibility, and the Good Lawyer: Niebuhrian Perspectives on Legal
Ethics, 67 Notre Dame L.Rev. 587 (1992).
2 General statistics by competent and
scholarly journal analyses reveal that on average, at least ninety percent of
all criminal charges filed are resolved without trial. Total acquittals for
those few cases tried from district courts in Wyoming run somewhere around one
to two in ten trials and particularly so where competently prepared prosecutors
are involved, no matter what the expertise of defense counsel may
be.
3 There is a tone touching
incredulity if not incredibility regarding adverse connotations when competent
counsel adequately prepares for trial. The scapegoat that appears in the appeal
about inappropriate counsel preparation of the principal witness is nothing less
than a patent absurdity. Experienced trial counsel are expected to do no less
than to provide support, direction and assistance to witnesses, provided only
that a direction of what may be said is not suggested or required. A significant
and well-edited publication carries a thoughtful and comprehensive guide for
attorneys. The publication itself provides guidance and by it, it is
demonstrable that here, defense counsel was trying to properly do his job as
counsel. Suborning perjury is different from education of the witness about the
power of words, whether "cut", "stab," or "accidentally strike in self
defense."
The author of the
trial publication text first instructs regarding preparing your
witness:
Do not expect the
checklist and the video to do your work for you. They merely supplement the
fundamental and critical face-to-face witness preparation, which should include
the following steps, in whatever sequence best suits the personal style of the
lawyer and the witness.
Orient the witness to
the nature of deposition or trial testimony, describing who will be there, the
physical arrangements, the personality and style of opposing counsel, and the
importance of the preparation which is about to begin. Review the checklist
guidelines for the first time, expanding them with both general and
case-specific examples. Analyze the issues, claims, and defenses with which the
witness is concerned, the witness's knowledge of the facts, and ask him or her
to identify expected problem areas about which he feels uncomfortable
testifying. The witness then views the videotape and hears the guidelines for
the second time. Counsel and the witness then review together all his prior
statements and discovery responses, all relevant documents, and any relevant
physical evidence, including, as necessary, inspection of a product or the scene
of an event.
If the witness has
previously given testimony in other cases, review those transcripts, if
available, with the witness to note his or her adherence to the testimony
guidelines. If he is to appear with documents pursuant to a subpoena or a notice
to produce, review that request and the proposed response.
The next phase is a
practice session of question-and-answer direct and cross examination. This is
interrupted and disjointed for clarification of the answers, reminders of
guidelines violated, and discovery of areas where the witness must volunteer
explanations in addition to simple yes or no answers to make the testimony
accurate and truthful.
The witness then goes
through a formal mock examination, sometimes with participation by another
attorney for direct or cross. Keep a scorecard of guideline violations, without
interrupting the examination. During the formal mock examination, always include
some questions not previously discussed and, if possible, introduce a document
not previously reviewed, relevant or otherwise, to test the witness's ability to
deal with new matters. [Following further recommendations, the author then
provided thirty-four suggestions for giving accurate testimony with his
checklist for the witness.]
William B.
Fitzgerald, Preparing Your Witness, 34 For the Defense 16, 16-17 (July
1992).
We should not need
this excellent guidance to recognize that comprehensive, careful and detailed
preparatory work and advance examination with any important witness is just not
significant, it is the essence of competency in the practice of law. That
careful effort by defense counsel provides no moral or ethical opportunity for
justification of what the deputy prosecutor did in this case by invading the
attorney/client privilege.
4 There is a rule of reliability of
fact called probabilities analysis. What is probable is likely true, what is
improbable is most likely untrue. The more improbable a contention may be, the
more likely the determiner can establish between two contentions of conflicting
factual witnesses which one is not telling the truth since what is probably
true, will normally be true. That the defense counsel did not seek or expect
trial preparation session confidentiality belies belief. That the deputy sheriff
was coached and cajoled into a breach of that confidentiality is highly
probable, since the deputy sheriff was "available" and within the control of the
prosecution. His absence can be accorded the missing witness presumption of
unfavorable testimony. Hildebrand v. Chicago, B. & Q.R.R., 45 Wyo. 175, 17 P.2d 651
(1933).
5 Among many infinitely questionable
statements contained in the "anything goes" precept of the Harvard Law Review
article, there are two sentences that reach Orwellian
logic:
When disclosure
occurs [of communications between attorney and client] and confidentiality is to
some degree compromised, it does not necessarily follow that the values promoted
and protected by confidentiality are correspondingly undermined. For example,
the effective assistance of counsel is virtually never undermined except by
breach of confidentiality in court, because no disclosure short of evidentiary
use of the communication against the communicant in a court of law will chill
attorney-client communications.
Developments in
the Law, supra, 98 Harv.L.Rev. at 1644 (footnote omitted).
6 The Mooney opinion really defined
due process as a irreplaceable ingredient of ordered
justice:
Without attempting at
this time to deal with the question at length, we deem it sufficient for the
present purpose to say that we are unable to approve this narrow view of the
requirement of due process. That requirement, in safeguarding the liberty of the
citizen against deprivation through the action of the State, embodies the
fundamental conceptions of justice which lie at the base of our civil and
political institutions. Hebert v. Louisiana,
272 U.S. 312, 316, 317 [47 S. Ct. 103,
104, 71 L. Ed. 270]. It is a requirement that cannot be deemed to be satisfied by
mere notice and hearing if a State has contrived a conviction through the
pretense of a trial which in truth is but used as a means of depriving a
defendant of liberty through a deliberate deception of court and jury by the
presentation of testimony known to be perjured. Such a contrivance by a State to
procure the conviction and imprisonment of a defendant is as inconsistent with
the rudimentary demands of justice as is the obtaining of a like result by
intimidation.
Mooney, 294 U.S. at 112, 55 S. Ct. at
341-342.
7 Justice Douglas, responding in
appeal dismissal concurrence in Hoffa and dissenting in Osborn v. United States,
385 U.S. 323, 87 S. Ct. 429, 439, 17 L. Ed. 2d 394 (1966) and Lewis v. United
States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966), perceptively
worried:
These examples and
many others demonstrate an alarming trend whereby the privacy and dignity of our
citizens is being whittled away by sometimes imperceptible steps. Taken
individually, each step may be of little consequence. But when viewed as a
whole, there begins to emerge a society quite unlike any we have seen - a
society in which government may intrude into the secret regions of man's life at
will.
Osborn, 385 U.S. at 343, 87 S. Ct. at
440.
8 In In re Rider, the court quoted
from the earlier Oklahoma decision in Davis:
"It would be a cheap
subterfuge of and a shameless mockery upon justice for the state to put a man on
trial in its courts, charged with an offense which involved his life, liberty,
or character, and then place him in such a position that he could not prepare to
make his defense. It would be just as reasonable to place shackles upon a man's
limbs, and then tell him that it is his right and duty to defend himself against
an impending physical assault. If the right of defense exists, it includes and
carries with it the right of such freedom of action as is essential and
necessary to make such defense complete. In fact, there can be no such thing as
a legal trial, unless both parties are allowed a reasonable opportunity to
prepare to vindicate their rights. * * * It therefore necessarily follows that
it is the absolute right of parties charged with crime to consult privately with
their attorneys, and that it is an illegal abridgment of this right for a
sheriff, jailer, or other officer to deny to a defendant the right to consult
his attorneys, except in the presence of such officer. * * * It is the duty of
officers having the custody of persons charged with crime to afford them a
reasonable opportunity to privately consult with their attorneys, without having
other persons present, taking such precautions as may be necessary, according to
the circumstances of each case, to prevent the escape of such prisoner." State
ex rel. Tucker v. Davis, 9 Okla. Cr. 94, 130 P. 962, 44 L.R.A. (N.S.)
1083.
In re Rider, 195 P. at 965-66.
9 The articles in the Symposium
include: John M. Burkoff, Prosecutorial Ethics: The Duty Not "To Strike Foul
Blows", 53 U.Pitt.L.Rev. 271 (1992); Roger C. Cramton & Lisa K. Udell, State
Ethics Rules and Federal Prosecutors: The Controversies Over the Anti-Contact
and Subpoena Rules, 53 U.Pitt.L.Rev. 291 (1992); Bennett L. Gershman, The New
Prosecutors, 53 U.Pitt.L.Rev. 393 (1992); F. Dennis Saylor, IV & J. Douglas
Wilson, Putting a Square Peg in a Round Hole: The Application of Model Rule 4.2
to Federal Prosecutors, 53 U.Pitt.L.Rev. 459 (1992); Andrea F. McKenna, A
Prosecutor's Reconsideration of Rule 3.10, 53 U.Pitt.L.Rev. 489 (1992); and
Nancy J. Moore, Intra-Professional Warfare Between Prosecutors and Defense
Attorneys: A Plea for an End to the Current Hostilities, 53 U.Pitt.L.Rev. 515
(1992).
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