Friday, August 29, 2008

UPDATE: Judge recused who ordered search of attorney's files

Via Texas Lawyer's Tex Parte blog , we learn that "Collin County District Judge Mark Rusch has been recused from hearing a capital murder case" in which he ordered police to search a defense attorney's files. (See prior Grits coverage.) Bill Baumbach has more at the Collin County Observer, which profiles this case along with the Charles Dean Hood fiasco, in which a Collin County judge and prosecutor who allegedly had an affair during Hood's capital murder trial want to put off answering questions about it until after he's executed.

It can't be stated often enough: Collin County justice is really something!

20 comments:

TxBluesMan said...

About time - how could any judge authorize such a warrant? That is beyond inane.

On the Hood case, the judge on the civil side has separated himself completely from the criminal side of the case, and (legally correct, but not especially welcome to Hood's attorneys) noted that the "Estate" of Charles Hood would still have a claim even if Hood was executed.

Somehow I don't think that is what his attorneys had in mind when they tried this end run.

Gritsforbreakfast said...

Re: "I don't think that is what his attorneys had in mind when they tried this end run."

Very true, bluesy. But this game of chicken is bigger than Charles Hood. Now we know the affair is still likely to be exposed even if it happens posthumously on behalf of Hood's estate.

So the question becomes: Do Holland and Curry want to wait until the deed is done to reveal a conflict which would have easily granted Charles Hood a mistrial if true? My guess is they'd be disbarred over it. If the affair occurred, and if it didn't one can't help but believe they'd deny it, the pair will be doubly disgraced, both as adulterers and unethical barristers. Even more importantly in the big picture, they'll have done more to harm the cause of pro-death penalty advocates than any abolitionist ever could.

One other aside: A lot of people, not just Charles Hood, got convicted in her court during the six-year period the DA was allegedly bedding the judge. These allegations open up many, many cans of worms.

TxBluesMan said...

Good point Grits.

I'm not sure over the disbarment, although I'm sure that there would be sanctions.

deputylastrites said...

Actually, I can see the appeal to criminals of dumping physical evidence at a defense attorney's office. Hey, if I was a stone cold killer and I wanted to get rid of a knife or a gun, why not give it to a defense attorney? Hell, why not unload a few kilos of meth while I'm at it.

Physical evidence is not privileged under Texas law specifically because of the reasons and situations I wrote about above. The defense attorney's actions in accepting the physical evidence without notifying the government was and remains unethical and if he tampered or altered the physical evidence in any way he is guilty of a third degree felony under Texas Law! The defense attorney could have just as easily refused the evidence and remained an ethical attorney. What was the government to do, just let the evidence be tampered with or destroyed?

Now, I don't know about any affair or anything like that, but the fact is and was is that the police provided the judge that signed the warrant probable cause to believe that there was physical evidence being held by the defense! I read the probable cause affidavit and the police provided ample probable cause under oath. This was something that the prosecutor did not have anything to do with. A detective was notified of where important evidence was being held and he applied for a search warrant in order to obtain that evidence. This application was made to a judge with competent jurisdiction over the area to be searched and the things to be seized. It was only incidental that it happened to be in a law office. A detective has no choice but to seek out evidence of illegality and he/she has to trust that the judge who he/she makes a search application to is an honorable magistrate.

I can see what would happen if a private law office becomes a king's X when it comes to crime. Perhaps criminals could store drugs in a defense attorney's law office if that attorney is on his payroll. I can see endless possibilities of what can happen if we hold law offices above the law.

Think about this one grits....

Gritsforbreakfast said...

deputylastrides - if they'd found the evidence in the defense counsel's possession, maybe you'd have a better case to make. Not only did they NOT find such evidence, after they saw the files the judge was recused against his will.

As it stands, nothing about this particular case supports the interpretation you're offering. Or am I missing something?

deputylastrites said...

Well Grits,

I read the search warrant affidavit and apparently a witness in this case, actually the wife of the defendant in this case delivered crucial evidence to a defense attorney's law office. The defense attorney accepted this evidence which I must admit, I have never met any defense attorney which has, to my knowledge done this.

That evidence was Letters, Cards, Envelopes, and their contents, sent from the Collin County Jail by inmate Mark Bell, to his spouse Linda Bell at 7013 Bountiful Grove McKinney Collin County Texas.
A shoe box and a pair of mens boots.

Now I could understand holding on to jail letters, but now one of the witnesses, namely the wife is cooperating with the police. Marital loyalty, it just isn't what it used to be. What I cannot understand is why a defense attorney would accept a pair of boots that could have been worn by his client during a murder. I mean isn't that the legal equivalent to a "hot potato?"

What I am saying is that accepting physical evidence from a client is sooooo irregular that I am not even sure what the defense attorney could have been thinking. Especially in a capital crime no less! That irregular and perhaps unethical act, would have prompted at the very least a subpoena and at most a search warrant for those items that I listed. I suppose the police chose the latter.

What I am saying is the slippery slope can go too far left, and too far right. Too far left and you have anarchy, and too far right you have torture. If I may make a supposition based on your previous writings, I believe that you tend to lean a little to the left. I enjoy playing the devil's advocate in many of these cases and presenting an alternative opinion. It does make your job sporting does it not?

Gritsforbreakfast said...

What does any of this have to do with left wing or right wing politics, deputylastrites?

Is favoring attorney client privilege conservative or liberal? What do those labels have to do with anything?

deputylastrites said...

Grits,

There is no attorney client privilege with physical evidence. None. Nada. Zip. Zilch. Zero.

You can't just dump your bloody boots or a knife onto your defense attorney.

Allow me to explain attorney client privilege to you.

Attorney/client privilege pertains to communications between an attorney and his/her client. That is all. Your defense attorney cannot dispose of evidence for you or even store it. This case has NOTHING to do with attorney client privilege.

So, I do understand that you are not a lawyer, but to lump this case in with attorney client privilege is folly. There was no communication between the attorney and client that was authorized for seizure in this case.

To expand attorney client privilege to illicit items or physical evidence seems to be a liberal endeavor to me.

So to answer your question favoring attorney/client privilege is neither liberal or conservative. However attempting to expand attorney client privilege to physical evidence or regarding that as a type of "communication" between a defense attorney and a client seems to be more of (and in my opinion is!) a left wing perversion of American jurisprudence.

hwzee said...

oh noes! not de libruls!

haha u cops r so dum!

if u rite a lettr is it communication or evidence?

Gritsforbreakfast said...

Deputylastrites, if the attorney did what you said, it would be a perversion. He didn't. The affidavit was false. I don't know what else to tell you. Your complaint is based on actions the lawyer never took, the search warrant based on fiction.

Yes, you can misrepresent the truth and manufacture a situtation where this might be justified. But in the real world, that was all fantasy and what happened was a violation of attorney client privilege, which is why the judge is now recused.

TxBluesMan said...

Deputylastrites,

You are correct that physical evidence is not protected by the attorney / client privilege. There are other ways to address this without going to the level of a search warrant. A defense attorney, as an officer of the court, is required to respond to orders of the court.

If the DA had reliable information that the defense attorney had physical evidence, the court could have obtained by other means.

A search of an attorney's office, including correspondence between the defendant and the attorney, is overreaching, and damages the justice system. A client must have the assurance that what he tells his lawyer will remain confidential, whether the client is a murder suspect or a police officer in a civil service action or 1983 lawsuit.

The judge was wrong.

deputylastrites said...

Grits,

Well I don't think what was said in the affidavit was false. I think that 2 out of the three items of interest were found. I wonder what the defense attorney did with the boots? I believe that the detective took a statement, and applied that statement to the search warrant. If the person that made the statement was false, then it is the fault of witness. Obviously most of the evidence was found of course, but the most crucial was perhaps destroyed, thrown away, Lord knows. I just think that defense attorneys should not be allowed to possess evidence like that.

In no way did I misrepresent the truth. I created a slippery slope scenario which is the literary embellishment that Grits for Breakfast is known for.

Oh, and I should point out the reason for the judge being recused was the fact that the judge ordered the search warrant and in doing so became a witness in a criminal case. If you are a witness then you cannot be the defense counsel, the prosecutor, or the judge. This is not uncommon for judges to be disqualified from ONE TRIAL because they are witnesses of fact.

Txbluesman: I agree that a defense attorney is an officer of the court but accepting evidence like this law office did is HIGHLY IRREGULAR. If a defense attorney makes one mistake and tarnishes evidence that could be used by the state, he/she is actually guilty of a felony. My point is, the police MAY have had reason to believe that the defense may have attempted to destroy evidence out of self interest. My additional point is that no one is immune from evidenciary law. No one. Not cops, not judges, no one. Okay, maybe military tribunals....

Oh and hwzee, at least I can use vowels in my sentences. Yes a letter is communication very good. But the communication has to be between the defendant and his attorney. Then it is a privileged communication. Can you say privileged? I knew you could.... I can't believe they let you play on the internet in kindergarten.. Write to me when you can string more than a few broken words together little fella'. Tssk. Tssk.

bart said...

If the DA had reliable information that the defense attorney had physical evidence, the court could have obtained by other means.

funny you should mention this since there was a hearing on the evidence already on the docket to occur only a few days after the office was searched... so along with everything else the search was unnecessary. somebody needs to be fired.

TxBluesMan said...

Deputy,

There are many times that an attorney will have evidence, and if the DA doesn't ask for it, they will keep it. It is not irregular, it happens all of the time.

There is no law that states that the only evidence that can be admitted must come from the police property room or the DA's Office.

I have stored evidence numerous times for use in defending officers, be they tapes, video, or physical evidence. Granted, this is typically in civil service proceedings, but the same holds true for court cases. If the court ever wanted the evidence, all they have to do is ask.

All attorneys will collect and store some type of evidence - and it is not incumbent on them to notify the DA or other agency of what they have, nor notify them of it so that they can prepare an argument against the evidence.

Believe me, I understand your position on this, and while I know where you are coming from, from a justice standpoint it was wrong. There had already been a hearing scheduled on the evidence that the defense attorney had - there was no need for the warrant.

As for the recusal? Merely issuing a search warrant does not make a judge a witness, and mandate recusal. Far more damaging is the judges breach of attorney-client privilege, since he read the case file.

The warrant was not in the best interests of justice.

deputylastrites said...

txbluesman:

You present a very convincing explanation. Yes I did know that all kinds of civil evidence is stored in civil cases but I thought it to be quite rare for physical evidence such a boots et cetera to be held by the defense in criminal cases.

Your explanation brings up one more question from me. Are attorneys (in general) allowed to practice law when they have felonies on their record or other serious criminal offenses. The reason why I ask is because I would like to know if the defense attorneys can be held to be as honorable in court proceedings as peace officers, prosecutors, or judges are in a court of law. If lawyers are not allowed to practice after being convicted of felonies or high grade misdemeanors I would have to say that the search warrant was totally unnecessary. However, if each defense attorney has to be evaluated individually for law abiding behavior I would say that it would not be good for a convicted felon to be in possession of physical evidence for obvious reasons.

I would really like to know, just out of my own curiosity. All of the defense attorneys that I know seem to be honorable/ethical people who are doing a difficult job in offering a legal defense to sometimes disreputable or dangerous people which is a difficult job.

Well you are a wealth of knowledge, and I enjoy these correspondences thank you so much for the info.

TxBluesMan said...

Deputy,

The question on lawyers with felonies or certain misdemeanors still practicing varies from state to state.

In Texas, as I am sure you are aware, there is the possibility of Deferred Adjudication for most offenses (which doesn't mean that he would skate on discipline). If the lawyer gets this, then there is no conviction on his record. Also note that the lawyer must commit a "serious crime", which basically means felony involving moral turpitude, theft, barratry, misappropriation of funds, etc. Some felony offenses may not trigger disciplinary procedures - for example, a lawyer convicted of Unlawful Bingo (3rd degree felony) when he set up a bingo night for a charity would probably not be disbarred or suspended.

deputylastrites said...

txbluesman,

Actually I did not know what offense could preclude a person from practicing law, but thanks for the info!

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