Now in Legal Rebels:
Posted Jul 06, 2011 07:18 pm CDT
An email from a husband to his wife discussing trial strategy in his criminal case has won a reversal of his conviction in a divided ruling from the Connecticut Supreme Court.
Because the email was forwarded by the defendant to his attorney, it was privileged. And, although a prosecutor apparently had no intention to violate the attorney-client privilege when he read the email after receiving it amidst the contents from a search of the defendant’s computer, trying the case to verdict thereafter created a “taint” that is “irremediable” on retrial and requires reversal, the court says in an opinion (PDF) that is to be officially released later this month.
“We conclude generally that prejudice may be presumed when the prosecutor has invaded the attorney-client privilege by reading privileged materials containing trial strategy, regardless of whether the invasion of the attorney-client privilege was intentional,” the majority says.
“We further conclude that the state may rebut that presumption by clear and convincing evidence. Finally, we conclude that, when a prosecutor has intruded into privileged communications containing a defendant’s trial strategy and the state has failed to rebut the presumption of prejudice, the court, sua sponte, must immediately provide appropriate relief to prevent prejudice to the defendant.”
A dissenting opinion (PDF) argues that the majority took “a radical and wholly unjustifiable departure from settled Sixth Amendment principles” in dismissing the case against Patrick Lenarz.
‘Until today, no federal or state court in this country ever has presumed a sixth amendment violation on the basis of a government’s unintentional breach of the attorney-client relationship, and no federal or state court ever has dismissed criminal charges due to such a breach. Indeed, until today, this court never has ordered the dismissal of criminal charges as a remedial measure,” Justice Richard N. Palmer wrote in the dissent.
Hat tip: Legal Profession Blog.