Friday, July 18, 2008

Collin County judge approves search warrant for defense lawyer's files

Maybe the Texas Court of Criminal Appeals will finally find a use for that 1856 attorney client privilege rule after all!

The CCA earlier this year postponed proposed changes to attorney-client privilege rules for criminal defense lawyers after a largely blog-generated outcry. The court had proposed getting rid of provisions that Judge Cathy Cochran in a guest post on Grits called a "vestigial tail" with "no wag," arguing that because no evidence had been excluded based on the rule in many moons, it could be safely deleted without troubling attorneys' historic protections.

Defenders of the rule argued that even though the rule had not been interpreted by the courts in many years, it still contained "sympathetic magic" which prevented judges from crossing so clearly drawn a threshold. In other words, judges knew they could never get away with violating privilege, so there were no cases telling them they couldn't do so.

That recent episode made me doubly interested to learn via Bill Baumbach at the Collin County Oberver that "Judge Mark Rusch of the 401st District Court in Collin County apparently issued a search warrant at the request of the DA's office for defense attorney files in a murder case before his court." KRLD Radio reported the search warrant "may be a first in Texas."

This'll be one to watch. It's also another moment that makes me wonder what's the matter with the Collin County justice system?

UPDATE: According to an email from the Texas Criminal Defense Lawyers Association, "A motion to recuse the judge who signed the search warrant is currently scheduled for August 5, 2008, at 10:30 am in District Courthouse of Collin County, Texas. The Strike Force Committees of TCDLA and NACDL are involved." From NBC Channel 5 in Dallas, here's a little more information on the case:
Police said Mark Bell fired the shots that killed Craig Nail in his home a day after Christmas 2007.

While in jail, Bell wrote letters to his wife asked her to hang on to certain items in their home.

Bell's wife ended up turning all the items and the letters over to her husband's attorney.

A few days before a scheduled hearing to determine whether detectives were entitled to any of the items, Frisco police served a search warrant and seized the documents from the attorney's office.

The attorney has now hired another attorney who calls the search "illegal" and a violation of attorney client privilege.
See prior Grits coverage of the attorney-client privilege rule:
BLOGVERSATION: Read more lawyerly discussion on the topic from Simple Justice.

32 comments:

Anonymous said...

Grits:

Any chance you can find out some more info on this case? Call the clerk's office, sweet talk a copy of the affidavit? Post it online for the world?

Thanks!

doran williams said...

This is not the first time.

About 15-20 years back, Terry Keel, then an Assistant Travis County District Attorney, whose most recent starring role was that of the Parliamentarian in the hit of last year or two years back --- "The Texas Legislature Takes A Prat Fall" --- talked a Texas Supreme Court Judge into signing a warrant to search the office of a young criminal defense attorney. The ADA was looking for a map, which purportedly showed the location of the grave of a supposedly murdered child. The attorney had obtained the map in the course of her representation of the alleged perp, as I recall. Given the attorney-client relationship, and no probable cause at all to think the attorney was involved in the murder, Mr. Keel -- in an amazing display of creativity -- alleged in the affidavit that the crime of abuse of a corpse was being committed and the map was necessary in order to stop that crime from happening.

There was a stink.

I don't know how the criminal case turned out, but the unfortunate defense attorney fled Austin. The Supreme Court Judge retired not long after the scandal had run its course.

I hope to see the day when a judge will allow searches through a district attorney's office for evidence of a crime. Or through the offices, home and business, of some well known Texas Legislators.

Bill Baumbach said...

More detailed information was posted by NBC Channel 5 in Dallas and posted on the Collin County Observer.
here

Anonymous said...

Bill and Grits, I don't know why you continue to ask the question as to what is wrong with Collin County's Justice System. There isn't one. Collin County consists of rednecks, fakes and debt and the justice system out there is for them to say they have one. In following alot of the commentaries now, me and some friends had to do research. House member Jerry Madden operates that corrupt county and he is corrupt. Look into his financials...the insurance firm...out of Plano...and look at his received contributions and by who...a majority of Collin County former sheet wearers. He does absolutely nothing. I have researched this county out of curiousity because of all the issues it is presenting but NOW this~!!!??? This Judge is foul and the defense attorney needs his/her ass kicked. The attorney and Judges are jokes. They don't know the law and the people of that county are cloned idiots. How in the world does this shit happen in this county and nothing be done about it? I would hate for someone to look at their conviction rate...that's right...their probation revocations went up...Is anyone listenting to the blog cries?! Someone QUICKLY INVESTIGATE THE JUDGES, THE COURT DOCKETS AND THE DA AND ADA's. That will be some interesting findings.

Anonymous said...

Collin County operates in their own little world and their blatant disregard for the law shouldn't be shocking. The prosecutors and DAs in Collin County work together. They manipulate cases exacting their own personal vendettas against unsuspecting innocent people. Regardless if it is fair, just or even legal.

Someone or something should bring Collin County to its humble knees and have them realize that their interpretations of the law are incorrect and are long gone when the sheets, nooses and burning crosses in the front lawn were found to be illegal.

Yes, I know the suspects in this crime are white....but let's compare Nail (white) to the suspects and cross reference Collin County's dictionary for the suspects.... probably under "trash". Therefore, seize the letters and shoe box. And just to top this cake off the Frisco PD are notorious for dealing illegally and padding police reports and pretty much for being liars. So, I would agree...can we get a copy of the search warrant posted?

Eric Ogunbase said...

I've lived my life with minimal police involvement. However my blood ran cold when I read this. A search warrant for a defense lawyer's files is the same kind of kangaroo court stunt we'd see ADA Jack McCoy pull in the interest of "justice". But Jack is portrayed a hero. He, like this judge are no better than the redcoats in the 1760s and 1770s, or the Nazis in the 1940s. Land of the free indeed...

Anonymous said...

This is absolutely ridiculous. Your blood ran cold, mine ran hot! I am fed up with the stories on this county and want this judge and the other stuff revealed. What petition do we need to sign, what riot needs to happen, what protest needs to happen before this criminal county gets their just do's?

TxBluesMan said...

Do you know if the warrant was executed or if the attorney was able to get it quashed before this travesty took place?

For a change, Doran and I see eye-to-eye on this one.

doran williams said...

Here are some things we can deduce from your update.

The cops were reading the Defendant's mail which he wrote to his wife while in custody. Does the spousal communication privilege still exist?

The cops therefore knew the wife had the letters and the items.

The cops could have acquired a search warrant for the wife's house, before she gave the goods to the defense attorney. They did not.

Now, the cops have god only knows what kinds of communications and notes between client and attorney, as a result of their search. Maybe there is a note about Defendant's expression of remorse, or even that he did the deed, made to his attorney.

Conclusion: This is an abuse of the search warrant provisions of the CCP; a fraud on the court; probably an indictable offense by the cops and maybe by the DA. The cops were not looking for the letters and the items; they could have had those already. They are looking for incriminating statements by Defendant made to his attorney, either in writing to the attorney or memorialized by the attorney in notes.

These cops, the DA, and that jug-head of a judge need to be nailed to the wall.

TxBluesMan said...

OK, this is where Doran and I part company (again).

Yes, the judge was wrong to issue the search warrant.

The sheriff's office had a right to open and censor the Defendant's mail, regardless of whether it was from his wife or his attorney. See Frye v. Henderson, 474 F.2d 1263 (5th Cir. 1973) and Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993).

What, pray tell, are you going to indict them for?

The whole judicial process depends on the judge having enough sense to deny an invalid application for a search warrant - that's why the officers are supposed to go to them in the first place. The officers aren't supposed to be the legal experts.

The judge should be hammered, but to 'indict' the officers is as silly as trying to prosecute Leal following his Garrity statement.

Anonymous said...

on your list of Collin County peculiarities you omitted the case of Vasilas v. State where defense attorney (openly gay) prosecuted for false entry in government record (felony) for filing an expunction petition with factual misstatement. Trial Court quashies, Dallas COA affirms, CCA reverses and says yes it is a crime. So now, any time a lawyer files a pleading with a mistake, its going to be seen as intended to harm the other side and instead of allowing them to amend or seeking frivilous pleading sanctions we lock them up? This is scary.

Anonymous said...

This judge has done the DA office a huge favour in the cause of justice. In light of the recent move to eliminate defence attorney privilege due to it not being used, this case should kill that argument. He is either a hero taking one for the team, or a Judas that just scored on his own goal. Most likely the latter, but still, the effect is the same.

doran williams said...

tx, the sheriff was opening and reading the Defendant's mail, and therefore knew early on about the letters and items but made no effort to seize them. After they find out the letters (which they've already read and may have copied) and the items (which they already knew about but had no interest in seizing) being in the attorney's files, THEN they go get a search warrant to rummage through the attorney's file on the case. Why not fraud (PC 32.46(a); perjury or aggravated perjury (37.02, 37.03); tampering with evidence (37.09); tampering with governmental record (37.10); abuse of official capacity (39.02); official oppression(39.03)? Most of these are misdeameanors, so indict was not the correct word to use.

Dee said...

Being near Collin County myself I would place the problem in the category of a smallish city having to grow up too fast and politics haven't quite stopped controlling the judicial system. It is at these crisis points where its good citizens will need to use that voting booth to clean up both politics and justice - well, at least make it less corrupt.

TxBluesMan said...

Doran,

The Sheriff is allowed to open the mail, especially from relatives. See the cases I cited.

Second, they have discretion - they don't have to go and seize something immediately.

Third, Fraud doesn't fit - there is no pecuniary interest or property, nor is it an order of a fictitious court.

Fourth, you can't meet the elements of the other offenses either.

Why is it that the ACLU types always want to throw police in jail, but never the criminals?

In any event, why don't we just agree that the judge was an idiot?

We have enough other things to argue about...

doran williams said...

Why is it people like you "always" try to find some justification for corrupt police conduct?

Gritsforbreakfast said...

Doran, I'm going to mostly agree with Bluesy on the broad outlines of this dispute.

Definitely the Sheriff has authority to look at the correspondence on its way in or out of the jail. That's a well established practice.

I also agree that charges of "fraud," etc., would be unwarranted. This is the fault of DA John Roach and the judge, not so much the Sheriff (except to the extent they failed to gather evidence in a timely fashion and missed an opportunity for the prosecution).

More questionable is bluesy's assertion, "they have discretion - they don't have to go and seize something immediately." That may be true but if they wait until it's out of their control and part of defense counsel's files, IMO they've waited beyond the limits of their "discretion."

And of course, the foolishness about wanting to arrest cops instead of criminals, etc., is verbal and ideological diahrrea ... but it's a blog comment so such hyperbole is generally tolerated, though it shouldn't be taken seriously.

On your response, Doran, asking "why people like you 'always' try to find some justification for corrupt police conduct?," I would consider that equally unfair except for one thing: In bluesy's case there is a good reason he consistently looks for "justification for corrupt police conduct" - he makes his living defending cops accused of misconduct; it's actually his day job. best,

doran williams said...

Grits, let's get a look at the affidavit in support of the search warrant, and let's find out if the cops had really read all the letters and made copies. I'm willing to tentatively hold the opinion that the cops fudged on this, made misleading and perhaps dishonest statements in the affidavit, and thereby made a fraudulent entry in an official document. I'll apologize to one and all when I'm shown to be in error.

As for the "always" remark, you are right. It was my way of highlighting tx's enthusiasm for over-statement.

Legal Beagle said...

Look, it is abvious the sheriff's office was reading the letters. There was an entirely less obtrusive manner to get these letters than going through the defense attorney's file. First, you cannot tell me whoever was opening and reading the letters the defendant wrote to his wife did not have a copier sitting beside him to make copies. I have had dozens of cases where my clients wrote letters to friends and family and the copies of those letters hung them so to speak.

This was a directed and concious effort to chill the attorney-client relationship and weaken the defense attorney's ability to effectively defend his client in murder case.

I think a motion to dismiss based upon prosecutorial misconduct and under Gigglio v. U.S. - state action denying the defendant his 5th and 6th amendment right to a fair trial and effective assistance of counsel.

Anonymous said...

Doran, I agree with you. And yes, TX I know you are a defender of the police. I give respect to anyone who puts their life on the line but I draw the line when the abuse of the badge is extended. From my research Collin County really can't land honest convictions without fudging or manipulating procedure. Pleae feel free to research their adult and juvenile records. My other assertion would be to have someone open a line to review testimonies of the past and you will uncover statements from the ADA during a trial like "this mexican killed a white woman"...falsiying hearing records and let's not even talk about how the police reports read from McKinney and Frisco....so understandably...I will agree that the Judge is a jug head and the DA is a complete legal joke with the court jesters affectionately known as ADA. However, mail coming and going from jails...always been checked. The timeline could have executed better but to violate the attorney/client privilege....I don't think this judge "took one for the team"....his team is commonly known as "MY WAY" regardless of justice nad the law. And Dee this isn't smallish city is and has always been misjustice, personal vendettas and whatever way they want it. These folks have law degrees...and don't use them. They use whatever convicts for the time and they relentlessly and with egregious error continue to function that way. This case should be a huge sign for the CCA and yet ANOTHER sign of how wrong the judicial system in Collin County is functioning.

Stephen said...

a motion to dismiss based upon prosecutorial misconduct and under Gigglio v. U.S. - state action denying the defendant his 5th and 6th amendment right to a fair trial and effective assistance of counsel.

That was my question, does this search blow up the prosecutions of everyone whose files were touched?

kbp said...

WOW! They'll do whatever they want in Texas it sounds like.

TxBluesMan said...

Doran,

If (and that is a big IF) they knowingly made false entries on the affidavit, the appropriate charge would be perjury, not tampering with a government document.

Grits was right - if they waited until the papers were in the defense attorney's hands, they waited too long, but the judge should have been the one responsible for shutting that down, not the officers.

Anonymous said...

I do agree that the Judge should have stopped whatever activity there was there...but we have to see what and how the affadavit works. I am not confident that it will be in truth and justice but some fudging along the way. But, we still need to see it. Any chance pending that we can get it online Grits??? But either way, Collin County as a whole is suspect to me and alot of other people. If this judge did sign it...which apparently he did....that reveals alot of truth in what alot of people have been saying...and they are mostly behind bars...poor and miniority....and I am sure...affadavits, police records, judges signatures...will and have played a huge, huge role in the faulty convictions.

The Local Crank said...

On a related but slightly different note: a local atty here gives out business cards with a Miranda warning printed on the back. You may have seen similar cards. One fine day, he got a call from the DA who was attempting to question a suspect who had one of the atty's cards (but was not a client) and was refusing to cooperate. The DA threatened the atty with obstruction of justice unless he instructed this non-client to talk to the police. Yes, that's right, informing people of their Constitutional rights now apparently constitutes obstruction of justice. To his credit, the local atty replied, "I'll see you before the grand jury" and hung up.

Anonymous said...

Local Crank - what city and state? OMG, I hope that he pro bonoed that person?! That is excellent and I am sooooo glad that the attorney didn't fall scared and victim to whoever called him and said that. Hooray, for that attorney. What's his name and number - I would like to interview that guy.

Anonymous said...

From Bill at the Collin County Observers blog.....I am almost thinking the defense attorney is part of this mess.


Judge Mark Rusch finds himself at the center of a legal storm over his issuing a search warrant on the office of defense attorney Keith Gore.

Judge Rusch had appointed the well regarded attorney as second chair in the capital murder trial of Mark Bell.

According to news reports, both the state and national criminal defense associations have mobilized task teams to probe the possible violation of attorney client privilege.

Attorneys for Bell have meanwhile filed motions to recuse Judge Rusch and to return and suppress any evidence gained by the search warrants. The defense team, lead by Steven Miears have issued subpoenas duces tecum to Texas Ranger AP Davidson, and Frisco detectives Clay Anderson and Bryan Sartain. Also served with subpoenas duces tecum were Collin County prosecutors Ben Smith and Christopher Milner.

A subpoena duces tecum is a subpoena that requires the witness to bring documents to the court.

Perverted Justice
This incident isn't Judge Rusch's first controversial search warrant. Last year, at the request of the Murphy police department, Rusch issued a search warrant for the home of Kaufman County prosecutor Bill Conradt.


That warrant was served on television as part of Dateline NBC's "To Catch a Predator" series with Perverted Justice and the Murphy Police Department. While executing the warrant in the glare of television lights, Bill Conradt committed suicide.

In June, NBC agreed to a settlement on behalf of Conradt's family.

The warrant itself contained several factual errors, including the date, the city and the county where it was to be served.

According to Esquire Magazine, Judge Rusch was angry after he learned that Dateline had been at Conradt's home when the warrant was executed. Esquire reported that Rusch called the Murphy police to vent his ire.

The Gore warrant affidavit
According to an article published Sunday by the McKinney Courier-Gazette, the search warrant affidavit contains a statement that a "Frisco police detective spoke to a friend of Mrs. Bell’s identified in the affidavit as “Shawna” in late February. She accompanied Mrs. Bell to the Collin County Courthouse on Feb. 21 for Mr. Bell’s grand jury appearance."

“[Shawna] told the affiant (the Frisco police detective) that in the parking lot, among other things, Linda Bell stated to her that the ‘dumb bastards’ think they have the shoes that her husband Mark Bell was wearing at the time of the murder,” the affidavit stated, “but that she (Linda Bell) has given the boots he (Linda Bell’s husband) was wearing to ‘Gore’ along with letters her husband had sent to her from jail.”

In February, Judge Robert Dry of the 199th District Court served Gore with a subpoena to testify before the grand jury in the case against his client. Gore was ordered to bring any items sent to him by Mrs. Bell. Gore refused and filed a motion to quash the subpoena. Judge Dry then scheduled a hearing on Gore's motion.

The Courier-Gazette article says that, "Gore allegedly told the judge “he would not produce the items even if Judge Dry held him in contempt and fined him,” according to a motion filed last Thursday by the DA’s office to dismiss Gore as Mr. Bell’s defense attorney."

Four days before Judge Dry's scheduled meeting, the DA's office went to Judge Rusch and obtained a search warrant for Gore's office, which was executed in February. Attorney Eric Higgins was tasked to monitor the search “to ensure that the attorney-client privilege and attorney work product were protected during the search.”

No boots or shoes were found - only documents.

The Collin county DA has filed a motion to remove Keith Gore from the defense team, and to require that he testify as a witness in the case. Austin attorney David Schulman, who has been brought into the case for the defense, described the DA's motion as nothing more than a publicity stunt. The Courier-Gazette quotes Schulman as saying, “You have to understand the motion filed yesterday (Thursday) is really not about getting Gore disqualified. It was nothing more than a press release by the DA justifying what is in reality an unconscionable, illegal warrant.”

Anonymous said...

Any chance the DA and the court know they can't convict but they want to leave the blame on him so they commit a travesty of justice such that he can't be tried?

TXBluesman: Why does the ACLU want cops in jail? Probably because they know police can usually commit perjury in court and not be prosecuted and the temptation to do that has gotten some of them on more than one occasion to perjure themselves. I'm certain many of them do it out of good intentions. Power corrupts people and good intentions are the road to hell.

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Anonymous said...

THE COLLIN COUNTY DA'S OFFICE STINKS! THE SON OF THE COLLIN COUNTY DA IS NO DIFFERENT! HE IS RUDE, CURT and NASTY!! HE WILL PROBABLY BE A ONE TERM JUDGE! THE ONLY WAY TO STOP THESE BLATANT INJUSTICES ARE TO COMPLAIN TO THOSE OVER THEM, HAVE THEM INVESTIGATED, MOBOLIZE AND GET THE MEDIA INVOLVED!!!!!!!!!!

Anonymous said...

I have personal experiences with Judge Dry and what amazes me is that I see Eric Higgins involved with this illegal search as keeping the integrity of the search. These two have been doing shady things for quite sometime. It is common knowledge of the relationship of the two. Just ask attorney Marilyn Landon who defended my case.

Anonymous said...

I agree. We should complain to those who are over a judge and talk to the media about the the Collin County unethical and injust justices who abuse their power. My question is who are over the judges and who do we talk to in the media who would like to do something about this? It seems to me it takes a lot of time, a lot of money, community engagement, and power to do anything against our courts. Suggestions?