No need for blanket ban on testimony by cops who took Fifth in attorney-client eavesdrop, court says
The Indiana Statehouse, which houses the Supreme Court of Indiana. Image from Shutterstock.
There is no need for a blanket ban on testimony by police officers accused of secretly listening to a conversation between a murder suspect and his lawyer, the Indiana Supreme Court has ruled.
The officers, who cited the Fifth Amendment when questioned about the eavesdropping, may testify at the defendant’s trial, if the state can rebut a presumption that the testimony is prejudicial, the state supreme court said. The Indiana Lawyer covered the March 30 decision (PDF).
The suspect, Brian Taylor, spoke with lawyer David Payne at the Michigan City, Indiana, police station on March 14, 2014. A police officer told Payne he should flip a toggle switch on the wall “unless you want us listening to your conversation.”
Payne flipped the switch, but his conversation was nonetheless transmitted to a large conference room next door where police detectives were listening, along with LaPorte County Chief Deputy Prosecutor Robert Neary, according to the Indiana Supreme Court opinion.
The group listened to the conversation for 30 to 40 minutes until Taylor revealed the location of a handgun. Police retrieved the gun, though Neary says he “sternly told” those present not to do it.
Taylor was charged with murder a few days later, and Neary disclosed the eavesdropping in a letter to one of Taylor’s attorneys a few days after that. Neary said he was present in the room and overheard part of the conversation. He also said he had self-reported himself to the Indiana Disciplinary Commission.
The state stipulated to suppression of the handgun but claimed that all other evidence had an independent, untainted source. The trial judge allowed evidence recovered before the eavesdropping and evidence discovered as part of a standard homicide investigation. But she ordered suppression of all testimony by officers who asserted a Fifth Amendment right not to testify about the eavesdropping.
The Indiana Supreme Court said the eavesdropping was “shameful,” but the blanket ban went too far. The court acknowledged that the officers had “stolen Taylor’s strategic ‘playbook’ ” and could potentially shade their testimony to undercut his defense. But the officers may be able to give “limited foundational testimony without significantly implicating their credibility—or their Fifth Amendment privilege—as to those matters,” the court said.
As a safeguard, the supreme court said, the state will be required “to disprove taint beyond a reasonable doubt.”
Neary is facing a December 2015 disciplinary complaint. It accuses him of listening to Taylor’s conversation in violation of his legal rights. He is also accused of viewing a videotaped statement of a suspect in a different case;that included the suspect’s conversation with his lawyer during a break. Neary’s lawyer in the disciplinary case, Frank Sullivan, declined to comment.
Hat tip to the Marshall Project.
Related article:
ABAJournal.com: “Judge axed evidence when cops took Fifth in lawyer-client eavesdropping; will she dismiss 2nd case?”
