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.See prior Grits coverage of the attorney-client privilege rule:
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.
- CCA backs off changes to attorney client privilege rule
- Read memo spawning proposed CCA changes to privilege rule
- View from the Piney Woods on proposed deletion of privilege rule
- Hampton defends privilege rule: 'The vestigial tail you save may be your own"
- CCA Judge Cathy Cochran: Privilege rule proposed for deletion a "vestigial tail" with "no wag"
- CCA could weaken attorney client privilege rule in place since 1856