ABA Journal


Criminal Justice

DA indicts opposing counsel in criminal case, says lawyer took Fifth over subpoenaed letter

Aug 14, 2013, 03:55 pm CDT


Normally, when the prosecutor desires something in the the defense' possession and believes it discoverable, the Government seeks an order to compel production. The issue its then litigated to determine if it is privileged or not.

So, why is the DA in this case avoiding the Court's usual process in obtaining discoverable documents withheld by the defense? Must be a young DA burning bridges.

By Adel on 2013 08 14, 5:10 pm CDT

@1 Per the underlying article, "A subpoena was filed to obtain the letter, but Schowalter refused to produce it and asserted his Fifth Amendment rights, Risberg said" The article is silent on whether a motion to compel was filed - which does not rule out the possibility or likelihood that it was.

By pablo on 2013 08 14, 6:19 pm CDT

Criminal defendants do not have an obligation to cooperate in a prosecution, but they also do not have a right to destroy evidence to thwart it. Good for Risburg for not buying into the good old boy network that Williamson seems to think is s.o.p. in Durango. Maybe he can bring Williamson's skill up to the level of his "experience."

By Pushkin on 2013 08 14, 7:39 pm CDT

It doesn't sound like the Defense are in the right this time. This article doesn't tell us much about the letter, but if it is evidence of a crime and it is not privileged, then it has to be turned over. Refusing to turn it over should, and has, resulted in prosecution.

Also, this comment makes me think these guys are jerks: Williamson said. “Perhaps Mr. Risberg’s lack of litigation experience explains his decision to proceed in this manner.”

By Island Attorney on 2013 08 14, 10:21 pm CDT

I don't think I have ever been so upset over a letter that I took a whole fifth over it.

By B. McLeod on 2013 08 15, 5:55 am CDT

With regard to the comments in 1 and 2, while defense attorneys don't have an obligation to produce evidence unless asked (and probably have an obligation not to unless compelled) here there was a subpeona that was ignored, so there would be no point, at least in Pennsylvania, to file a motion to compel. Perhaps Colorado law is different, but here in Pennsylvania the defense attorney should file a motion to quash the subpeona or file for a protective order. Then a Judge makes the call and both attorneys are protected from this sort of craziness. It's not clear from the article, but it sounds like the defense attorney must have been in court over this and taken the Fifth. Interesting case. For more interesting cases check out

By Steve Fairlie on 2013 08 15, 1:09 pm CDT

A lot missing here and a lot of speculation here. DA files criminal charges after a party takes the fifth that speaks to an inexperienced headline seeker. Contrary to the DA supportive comments This looks more like an intimidation practice to violate constitutional rights and should be called such

By Todd on 2013 08 15, 3:27 pm CDT

If all of the prosecutors who hid evidence were charged with a crime, there wouldn't be anybody left to prosecute defense attorneys. I'm exaggerating, of course, but the fact of the matter is that the DA is most likely overreacting. If the defense attorney disregards the subpoena, the most I can see is a misdemeanor contempt conviction.

I'm predicting now that the charge is dismissed or the defense attorney is acquitted after a trial. I hope I don't have to eat my words.

By Daniel on 2013 08 16, 5:02 am CDT

I have had prosecutors hide material evidence on numerous occasions. There are never any consequences to them but plenty of negative consequences for my clients. In those instances I wish I had the power to initiate criminal proceedings against them.Quis custodiet ipsos custodes?

By Madloophole on 2013 08 16, 10:32 am CDT

This seems "over the top." There must be a prescribed manner under the rules of criminal procedure in this jurisdiction to seek the letter upon motion. This episode is the symptom of a wider problem: There is a view among prosecutorial officials, especially at the federal level, that the defense bar is "part of the problem", and that defense counsel should just shut up, and eat out of the government's hand, as if we were tame deer in a zoo. And too many defense are attorneys are buying into this!

By John Smith on 2013 08 16, 12:04 pm CDT

Thanks, B. McLeod. That made me laugh.

By Dan Fultz on 2013 08 16, 1:25 pm CDT

Todd @7: "A lot missing here and a lot of speculation here....".

True (e.g., did Schowalter move to quash the grand jury subpoena?) . Yet you had no qualms about weighing in with your own, "looks like" speculation.

By PortiaOH on 2013 08 16, 1:29 pm CDT

PortiaOh. The speculation was in regards to the subpoena. But there is no speculation as to the watermelon comment. Clear for you now? Critical thinking means the ability to separate different parts of a discussion

By Todd on 2013 08 16, 1:49 pm CDT

As this is a conservative jurisdiction, I think the defense attorney gets to :"stand his ground" and put the DA under it. Just sayin'.

By rosslaw on 2013 08 16, 2:42 pm CDT

The article is deficient in not making clear whether the DA had or had not exhausted legal options to compel discovery.

By John on 2013 08 16, 3:30 pm CDT

My first day of law school our criminal law professor told us that the most important rule for us to remember is that if somebody must go to jail in a case, make sure that it's the client and not you. Looks like Mr. Schowalter forgot that rule.

By Dave on 2013 08 16, 4:03 pm CDT

That's an interesting tactic to win a murder conviction - just convict and jail the lawyer of the accused when there's a discovery dispute, then the defendant won't have a leg to stand on! . . . Could even make for an interesting trend in American justice.

By Boggster on 2013 08 16, 4:14 pm CDT

Don't they have contempt proceedings in Colorado so hearings concerning discovery disputes can be resolved in the Court where they are pending?

By lawsailor on 2013 08 16, 4:30 pm CDT

Definitely not enough info, and hence speculation abounds.
I agree with previous comment that a simple solicitation of a contempt ruling would have sufficed for any alleged misconduct.
What evidence, I wonder, is there that the document sought actually exists?

By G A.Graham on 2013 08 16, 4:31 pm CDT

As many of the comments have noted, knowing the procedural history of this case is virtually essential to evaluating whether this prosecutor's actions were justified or merely politically motivated grandstanding. For example, while I'm usually on the defense side of most of these things, the fact that the defense attorney simply refused to turn over subpoenaed materials is puzzling. While I don't practice there, I'm pretty sure Colorado has a procedure for quashing subpoenas, at which the attorney could've asserted any legitimate reason he had for not complying. And, I'm sure they have provisions for an in camera procedure to prevent any confidential information from being revealed. More information is needed

By EB Esq. on 2013 08 16, 5:18 pm CDT

Is this a true litigation-related problem or could there be some personal issue(s) between these two colleagues that should be resolved outside the well of the courtroom?

By Mendy on 2013 08 16, 6:50 pm CDT

too much 'lawyering' ! ... first question - was the letter that important to either side ?
'over the top' maybe, maybe not ...

By Ross Scaccia on 2013 08 16, 11:21 pm CDT

I don't even get why there's any right to "discovery" of defense evidence by the prosecution.

Yes, the defense must give notice if they're going to claim an alibi, etc. etc. But producing defense evidence? It's tough enough just to get the prosecution to produce evidence, even though that's a Constitutional right.

The article is admirably clear and explanatory in most ways, but it doesn't say what sort of "tampering" was alleged (Pushkin #3 is obviously going too far in saying "destroy"), or what law says a simple failure to produce is a crime, or even whose letter it is. The judge should've been asked to enforce the subpoena, or not, on pain of contempt penalties; then, these questions would have arisen and been answered.

As things stand, this prosecutor is what defense attorneys in my town, who are less courtly than Williamson, would call a putz.

By Avon on 2013 08 17, 12:35 am CDT

For a great read on the topic of defence lawyers holding real evidence see the Ontario (Canada) case of R. v Murray 2000 CanLii 22378 reported free of charge at:

By Josh Arnold on 2013 08 17, 12:37 pm CDT

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