Gov. Jay Nixon, public defender

The bastardized adage “those who can’t do, delegate” is usually reserved to express contempt and derision toward those in power who are incompetent to do the job that they’ve been given and instead choose to appoint others to do their work.

The phrase takes a different meaning in Missouri, though, becoming quite literal. There is a crippling lack of funding for indigent defense in that state and public defenders literally cannot do their jobs. Their governor has vetoed bills that would lighten public defender caseloads and passed bills cutting their budget disproportionately.

So chief Public Defender Michael Barrett, when faced with the inability to do, decided to delegate: employing a never used provision in a state statute, he delegated the job of representing an indigent client to that very same governor:

As of yet, I have not utilized this provision because it is my sincere belief that it is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis. However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it.

Therefore, pursuant to Section 600.042.5 and as Director of the Missouri State Public Defender System tasked with carrying out the State’s obligation to ensure that poor people who face incarceration are afforded competent counsel in their defense, I hereby appoint you, Jeremiah W. (Jay) Nixon, Bar No. 29603, to enter your appearance as counsel of record in the attached case.

While on the one hand, this is a masterful joke by Barrett, on the other, it is a frustrated plea by a man who sees before him the continued failure of the Constitutional guarantee of effective assistance of counsel.

The workload causes them to spend far less time on each case than is recommended by the American Bar Association. For example, the association recommends attorneys spend about 12 hours on each misdemeanor case. On average, Missouri public defenders spend two.

Low-income people charged with crimes — who are disproportionately people of color — bear the brunt of the problem when public defenders are forced to do more with less, according to a study by the Justice Policy Institute.

When court-appointed lawyers don’t have enough time to spend on with cases, those who can’t afford a private lawyerwait longer for trial and get longer prison sentences and harsher plea deals.

The hope is that this appointment forces Gov. Nixon to reasses his obstructionist stance to indigent defense and maybe, for the first time, start acting like a public servant.

Remedies for prosecutorial intrusion in attorney-client privilege

Communications between a client and his attorney are regarded as privileged, which means that they are “permanently protected from disclosure,” unless waived by the client. The strong public policy rationale behind keeping communications confidential is to ensure full disclosure between an individual and his attorney. The importance of this privilege is why we sometimes tolerate uneasy outcomes.

But what happens when that privilege is pierced in a criminal case and that too, by the prosecution? What happens when the prosecution gains access to confidential documents and conversations between a criminal defendant and his lawyer in a pending case?

While most courts agree that invasion of this attorney-client privilege is “reprehensible” and “abhorrent”, three cases highlight the difficulty courts have in deciding what the appropriate remedy should be.

In State v. Taylor, a recent Indiana Supreme Court case:

The body of Brian Taylor’s girlfriend, Simone Bush, was found on March 14, 2014, just a few hours after Taylor was dropped off at a police station. Taylor’s attorney arrived shortly thereafter and began meeting with his client. Police told the attorney to flip a switch if he didn’t want the police listening to his conversation, but when he did he piped his conversation with his client into another room where many officers were listening. They heard the location of a handgun, among other details. Two days later, Taylor was charged with murder.

A prosecutor was also present and overheard the conversation between the two.

In State v. Winkler, a case out of Missouri, Jennifer Winkler was charged with manslaughter in the shaking death of an infant she was taking care of. Both she and her husband were represented by the same lawyer:

According to available court documents, defense attorneys alleged that prosecutors met with Steven Winkler and discussed trial strategy for his former wife’s defense that should have been protected by attorney-client privilege.

Steven Winkler knew the strategy because lawyer Neil Bruntrager not only represented Jennifer Winkler in the murder case but also represented both, before they were divorced, in an effort to retain custody of their children. Bruntrager remains Jennifer Winkler’s attorney but no longer represents her ex-husband.

Finally, in State v. Lenarz, a Connecticut case from 2011:

During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy…The state laboratory read and copied much of this material and transmitted it to the police department along with its report. In turn, the police department forwarded the materials and the report to the prosecutor…Although it is unclear from the record how long the prosecutor had been in possession of the privileged communications before the September, 2005 meeting, defense counsel represented at a hearing on a motion to suppress the materials seized under the search warrant that the prosecutor had had the materials for six weeks, and the prosecutor did not dispute this claim.


Rebuttable Presumption. The similaries in these cases go beyond the facts: all courts agree that when a governmental agency has committed such an intrusion, there is a strong presumption of prejudice and it is up to the government to prove that the prejudice can be overcome:

We agree with the courts that have held that the burden is not on the defendant to establish that he was prejudiced when the prosecutor has intruded on attorney-client communications that contain information concerning the defendant’s trial strategy. Rather, because the disclosure of such information is inherently prejudicial, prejudice should be presumed, regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on that question.

State v. Lenarz. What differs among the courts is the standard by which the prosecution must overcome this presumption of prejudice. In Connecticut, the prosecution need only show by “clear and convincing evidence,” a burden higher than the civil “preponderance of evidence” but less demanding than “beyond a reasonable doubt”. The latter, which also applies to harmless error analysis is required by the Indiana Supreme Court in Taylor. So prosecutors in Indiana need to overcome a higher burden than prosecutors in Connecticut in proving that the defendant was not prejudiced by their intrusion in attorney-client privilege.

Remedy. Thus we get to the question of remedy. How is this violation of Constitutional rights to be vindicated? Most criminal defendants would want a dismissal of charges, but courts are loathe to sanction such a drastic remedy barring exceptional circumstances. The remedy also depends on the posture of a case. In Winkler above, the appeals court rejected her request for a dismissal, but granted her request to disqualify the prosecutor’s office. In Taylor, the trial judge ordered that the testimony of the police officers be suppressed and the physical evidence obtained as a result of the eavesdropping be suppressed as well. The Indiana Supreme Court reversed, stating that the prosecution had to have the opportunity to prove that the tainted evidence could have and would have been obtained in non-tainted ways. In Lenarz, the charges were dismissed, but only because it had been over a year and a half since the conviction and there was no way to effectively remedy the violation short of dismissal.

The problem with a lot of the remedies short of dismissal is that it is almost impossible to know the impact of the confidential information on police investigations and prosecution strategy. Even if a prosecutor swears that the information did not impact her decisions in any way, there is no reliable way to know that – information seeps into our brain and we can end up relying on it even subconsciously. If total dismissal is not the preferred remedy, then one could envision a regime where attorney-client communications are routinely monitored and the information gained therein is used to obtain other evidence through legal means. The privileged information would also drive trial strategy and provide the prosecution with access to the defenses that it ordinarily should not have.

If the attorney-client privilege is so sacrosanct and the cases above represent reprehensible violations of the right to counsel, then it should operate as does the exclusionary rule: a categorial bar that serves as a reminder to police and prosecutors that violations of the right to counsel cannot and will not be tolerated.