Twenty-some years ago I was a newspaper reporter covering the courts in a rural county (population 50,000) in Western New York. People there were politically and socially conservative and had great faith in law enforcement. Defendants who went to trial were usually convicted. I remember one acquittal in four years. Defense attorneys counted themselves fortunate when their clients were allowed to plead guilty to a lesser charge.
Although the pro-law enforcement attitude may have been pronounced in Allegany County, it was not unique for its time. The U.S. attorney general then was Edwin Meese, who said, “If a person is innocent of a crime, then he is not a suspect.” Given the national and local atmosphere, it was difficult to determine the competence of either prosecutors or defense attorneys. Once the police arrested someone, a conviction for something was usually forthcoming. “Go along, get along,” was the unofficial motto of the county bar association.
I imagine things are not all that different today in Windham County, Vermont (population 44,000). The national scene is, if anything, worse than it was in the 1980s. Ed Meese has given way to Alberto Gonzales. Vermont newspapers this week carried the story of a police sting operation carried out on a Windham defense attorney.
The attorney’s client, jailed and awaiting trial on assault charges, spoke to his lawyer on a jailhouse pay phone. The police listened in, as they are allowed to do. The accused man spoke of two witnesses to the alleged assault and asked the attorney what would happen if neither witness showed up to testify. The lawyer answered that without those witnesses the state would not have much of a case. Her declaration, depending on how one looks at it, was either a statement of fact or a professional opinion. Either way, it was a legitimate answer to a legitimate question in an attorney-client colloquy.
That’s not how the police saw it. They theorized the attorney and her client might be conspiring to obstruct justice by preventing testimony by the witnesses, so the police got a warrant from a judge allowing a detective to call the attorney and pretend he was one of the supposed witnesses. The idea was to see if the attorney would try to encourage or intimidate the person she thought was the witness into not testifying.
The attorney did neither. She declined to offer specific advice to the posing policeman, since she was representing someone else in the same case, but she did tell him that if he received a subpoena from the court, he had to answer it.
So, no problem, right? That’s the opinion of Robert Paolini, executive director of the Vermont Bar Association. He said that as long as the cops got the warrant, everything’s OK. “It sounds like the system worked the way it was supposed to work,” Mr. Paolini said. “It doesn’t sound like any abuses occurred here.”
I disagree. Why would a judge sign a warrant authorizing a wiretap sting operation based on the fact that a defense attorney had told her client the truth? We don’t know, but I’ll guess the judge – Katherine Hayes – granted the warrant merely because the police asked for it. She probably didn’t want to get a reputation for being “soft on crime.” Go along, get along; if you’re innocent, you’re not a suspect. That’s a dereliction of the judge’s duty. Judge Hayes gets taxpayer money to provide a check and balance to the executive branch, not a rubber stamp.
Windham County Prosecutor Dan Davis said lawyers should not have any special protection if they break the law. He’s right; they shouldn’t. But Mr. Davis is forgetting an important step. Police and prosecutors need evidence before exercising the extraordinary power the state gives them and in this case, they didn’t have evidence.
I wonder if Windham’s police and prosecutors care about that distinction. Perhaps the point of the sting was not so much to catch one defense attorney obstructing justice as to send a message to all defense attorneys: We don’t arrest people who aren’t guilty, so don’t bother trying to ensure your client’s right to due process is protected.
The advent of DNA testing has freed a number of innocent people who have been wrongly convicted. As they emerge from prison and tell their tales, we learn that it was not merely a lack of DNA analysis that sent them to prison. There was frequent police and prosecutorial misconduct – witness intimidation, evidence destroyed or withheld from defense attorneys. Rarely are prosecutors or cops called to account for these past misdeeds, these obstructions of justice that not only jailed the innocent, but also let the guilty go free.
Policing defense attorneys – when the evidence warrants it – is appropriate. Who’s policing the police and prosecutors?
Go Along, Get Along
Twenty-some years ago I was a newspaper reporter covering the courts in a rural county (population 50,000) in Western New York. People there were politically and socially conservative and had great faith in law enforcement. Defendants who went to trial were usually convicted. I remember one acquittal in four years. Defense attorneys counted themselves fortunate when their clients were allowed to plead guilty to a lesser charge.
Although the pro-law enforcement attitude may have been pronounced in Allegany County, it was not unique for its time. The U.S. attorney general then was Edwin Meese, who said, “If a person is innocent of a crime, then he is not a suspect.” Given the national and local atmosphere, it was difficult to determine the competence of either prosecutors or defense attorneys. Once the police arrested someone, a conviction for something was usually forthcoming. “Go along, get along,” was the unofficial motto of the county bar association.
I imagine things are not all that different today in Windham County, Vermont (population 44,000). The national scene is, if anything, worse than it was in the 1980s. Ed Meese has given way to Alberto Gonzales. Vermont newspapers this week carried the story of a police sting operation carried out on a Windham defense attorney.
The attorney’s client, jailed and awaiting trial on assault charges, spoke to his lawyer on a jailhouse pay phone. The police listened in, as they are allowed to do. The accused man spoke of two witnesses to the alleged assault and asked the attorney what would happen if neither witness showed up to testify. The lawyer answered that without those witnesses the state would not have much of a case. Her declaration, depending on how one looks at it, was either a statement of fact or a professional opinion. Either way, it was a legitimate answer to a legitimate question in an attorney-client colloquy.
That’s not how the police saw it. They theorized the attorney and her client might be conspiring to obstruct justice by preventing testimony by the witnesses, so the police got a warrant from a judge allowing a detective to call the attorney and pretend he was one of the supposed witnesses. The idea was to see if the attorney would try to encourage or intimidate the person she thought was the witness into not testifying.
The attorney did neither. She declined to offer specific advice to the posing policeman, since she was representing someone else in the same case, but she did tell him that if he received a subpoena from the court, he had to answer it.
So, no problem, right? That’s the opinion of Robert Paolini, executive director of the Vermont Bar Association. He said that as long as the cops got the warrant, everything’s OK. “It sounds like the system worked the way it was supposed to work,” Mr. Paolini said. “It doesn’t sound like any abuses occurred here.”
I disagree. Why would a judge sign a warrant authorizing a wiretap sting operation based on the fact that a defense attorney had told her client the truth? We don’t know, but I’ll guess the judge – Katherine Hayes – granted the warrant merely because the police asked for it. She probably didn’t want to get a reputation for being “soft on crime.” Go along, get along; if you’re innocent, you’re not a suspect. That’s a dereliction of the judge’s duty. Judge Hayes gets taxpayer money to provide a check and balance to the executive branch, not a rubber stamp.
Windham County Prosecutor Dan Davis said lawyers should not have any special protection if they break the law. He’s right; they shouldn’t. But Mr. Davis is forgetting an important step. Police and prosecutors need evidence before exercising the extraordinary power the state gives them and in this case, they didn’t have evidence.
I wonder if Windham’s police and prosecutors care about that distinction. Perhaps the point of the sting was not so much to catch one defense attorney obstructing justice as to send a message to all defense attorneys: We don’t arrest people who aren’t guilty, so don’t bother trying to ensure your client’s right to due process is protected.
The advent of DNA testing has freed a number of innocent people who have been wrongly convicted. As they emerge from prison and tell their tales, we learn that it was not merely a lack of DNA analysis that sent them to prison. There was frequent police and prosecutorial misconduct – witness intimidation, evidence destroyed or withheld from defense attorneys. Rarely are prosecutors or cops called to account for these past misdeeds, these obstructions of justice that not only jailed the innocent, but also let the guilty go free.
Policing defense attorneys – when the evidence warrants it – is appropriate. Who’s policing the police and prosecutors?
© Mark Floegel, 2007