Failed Attempt to Get Incriminating Evidence on a Defense Attorney

Police cannot find witnesses they need to prosecute a case (including the victim). They then listen to tapes of the defendant talking to his girlfriend and mother while in jail.

An officer swears out an affidavit for a search warrant to recover evidence tending to show that the defendant's lawyer is obstructing justice. The warrant is based on an affidavit stating that the jail tapes "discuss comments [the defendant, girlfriend, and mother] attribute to [the defense attorney] in which she said prosecutors would have to dismiss the charges if their witnesses fail to come to court."

Holy crud! If that's all it takes every defense attorney in the world can have a search warrant sworn out against him. Everyone who has done defense work has had a conversation go something like this:

Client: If my old lady doesn't come to court they can't make this charge stick can they?

Attorney: Probably not, but they'll subpoena her to be in court.

Client: I'll just tell her not to come.

Attorney: If you do that you'll be obstructing justice and catch another charge. And probably all it'd accomplish is cause the judge to grant a continuance, issue a capias, and make her testify or go to jail for contempt.

Client: What if she comes but refuses to testify?

Attorney: She'd go to jail. So would you if you told her not to. Joe, you can't tell her not to come to court or not to testify. Now let's discuss the police officer's statement . . .

Client: What if she never gets the subpoena?

Attorney: C'mon Joe, we have to assume she's going to be in court. And if you do anything to keep her out you have to assume you'll catch another charge on top of this one. It's not worth it. Now, we need to talk about what this officer says he saw . . .

Variations on that discussion happen every day between an attorney and his client. There's no way that this alone is enough to justify a search warrant.

The officer then calls the defense attorney and pretends to be one of the people whom the police cannot find. Assuming she tell him something wrong, he asks if he should avoid court. The only problem is, the defense attorney does the right thing: she tells him she's not his attorney and that if he has a subpoena he must come to court.

Oops.

I've had real versions of those conversations too. I can remember several times when a witness was so persistent that I told her, "Look, I'm not going to tell you to break the law. In fact, I'm obligated to tell you that if you have a subpoena you have to come to court. You are required to come to court."

The Vermont Defense Bar is outraged. On top of that, unless there's a lot more here than this article lays out (and anyone who has seen one of his trials described in the news knows that is entirely possible), the judge and investigating officer have a lot of egg on their faces.

link via: Law of Criminal Defense