02 December 2005

From the "don't leave written evidence of your subornation of perjury" department:

"The Tennessee Bureau of Investigation is now investigating a Tri-Cities attorney for perjury, after he is accused of advising one of his clients to lie under oath" in a DUI case.

How will they prove the case? How 'bout this email from the lawyer to his client:

"they won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with."

Ouch.

10 comments:

martin said...

How did the e-mail get out of the hands of the lawyer/client? What's the deal? Do e-mails fall under privileged communication?

Happy mini-vacation, Ken :)

Windypundit said...

I’m pretty sure the privilege belongs to the client, not the lawyer, and from reading the article, it sounds like his client dropped a dime on him.

You know, I can understand why a defendant would lie. I can even understand how a lawyer looking for a big win might lose sight of his ethics and encourage a defendant to lie. But how desperate does a lawyer have to be to suborn perjury in a DUI? And in a way that puts evidence in the client’s hands? The email makes it sound like this is business-as-usual, so has this guy really been trusting his career to a string of (alleged) petty criminals?

Or am I underestimating the mendacity of criminal lawyers because the only ones I encounter are upstanding pillars of integrity such as Mr. Lammers?

Ken Lammers said...

Yeesh.

My first instinct is to want to believe that was faked by the defendant. Still, I can't see it progessing this far if it was.

How dumb can you be? Even a completely honest defense attorney has to operate under the assumption that anything through the mail, over the internet or over the phone will be (mis)used by clients against him; I've certainly seen myself quoted more than once. If you were going to break the law, you'd think that you'd be even more paranoid about this.

Windypundit said...

I had the "faked by the defendant" thought too, but it seems farfetched. On the other hand, parts of the letter from the defendant to the lawyer read like they were crafted to encourage him to be more explicit. I wonder if it will turn out she was acting as an informant at the time.

martin said...

I guess I forgot that the defense often deals with the most 'intelligent and educated' segment of society.
But still, not being a lawyer I'm curious. What powers does the government have to obtain electronic communication between defendants and their attorney?

Ken Lammers said...

WP,

She probably was not a CI. However, any defense attorney worth his salt should have had alarms wailing in his head over this

"4. Have you thoroughly reviewed the tape when the officer arrested me and did she read me my rights? I know I mentioned it to you before, but in a jury situation I thought I might make a difference to know that she did not. Because from what I remember, she didn't read my rights and she put the handcuffs on so tight that part of my hand was numb for a week.
. . .
6. Are you going to bring up that she gave me no roadside testing that is admissable in court? Again that goes back to the review of the tape."

That just screams of a frequent flyer, jailhouse lawyer, or somone taking advice from either who is trying to set up her attorney on things which everybody in jail swears by (gotta be read Miranda or the arrest isn't valid; use of an uncomfortable amount of force invalidates the arrest; all roadside arrests are videotaped or they are invalid). I'd bet money he had already told her that there was no tape and she was putting it in there to make him write something about it. Usually these sorts of things don't come out until Client files a habeas or bar complaint (another myth among people in jail/prison is that if they file a bar complaint they can use it to leverage a reduced sentence).

We've all dealt with this kind of client before. I know of one man who had been convicted several times before and each time filed bar complaints and habeases and refused to deal with his attorneys except through written correspondence - presumably so that he'd have something to work with.

Anyway, frequent flyers know the system well enough to deal up. Flip on somebody bigger than you and then the prosecutor will forget your little charge. An attorney is definitely a bigger fish than a DUI defendant.

All of this is stuff anyone who has been practicing for a little bit of time knows. Which makes it all the more shocking that he sent those emails.

Ken Lammers said...

Martin,

As long as the conversation is person to person (whatever the medium) the content should be forbidden to the government as long as the client does not approve its release. I'm sure there are exceptions to this (for instance, if the lawyer is part of a conspiracy with his client) but the attorney-client relationship is a pretty big hurdle to get over.

Tom McKenna said...

I don't think, even in our "enlightened" age of ethics in law, that disclosure of a subornation of perjury by an attorney, i.e., a crime, can be thwarted by a claim of attorney client privilege.

Tom Dunson said...

I'm stunned by the naivte of those who here who think this is unusual. The only novel things about this incident are the facts that the attorney was dumb enough to commit this advie to writing, and that he got caught.

Ken Lammers said...

Well, I'd like to think I'm not too terribly naive about criminal law and that "advice" wasn't anything I'd consider routine.