TheAgitator.com
Pretty Sure This Isn’t How It’s Supposed To Work
Friday, October 10th, 2008A Texas judge has been removed from a criminal case for signing a warrant allowing police to search the home office of a defense attorney for evidence that might have incriminated his client, the defendant. The judge then met with prosecutors at his private home to review the evidence.
Good to hear the judge was taken off the case, but shouldn’t this guy be removed from the bench?
Jailed and disbarred as well.
If defense counsel had attempted to arrange an ex parte hearing with the judge, how fast do you think he would have jailed them on contempt charges?
Wow.
As usual, the press account leaves a lot of questions, but it seems clear that the judge was properly removed from the case. What’s less clear is whether there was probable cause to search the attorney’s home, and the judge’s purpose in looking at the evidence that was seized.
There are plenty of examples of attorneys’ homes and offices being searched, although in the federal system, doing so requires very high approval within the Department of Justice for the obvious dangers such a search presents to the target’s right to counsel. The search should be viewed skeptically, but it’s not per se unreasonable just because it was an attorney’s home.
Having the judge review the evidence might also be justified: when a search will likely result in the seizure of privileged communications, it’s not uncommon for investigators to establish a “taint team” of agents who are tasked with reviewing the evidence and segregating the privileged communications out. The agents involved in that process are subsequently viewed as “tainted,” and play no further role (except, perhaps to review additional documents for privilege); they’re also forbidden to communicate with other agents regarding what they saw.
On occasion, judges have performed the same role. But even so, it is reasonable thereafter to recuse the judge from participating in the case, because he’s been “tainted” by exposure to attorney/client privileged evidence. This is all a bit controversial, and some courts expressly disapprove of the taint team process, but it’s undeniably hard to come up with a system that works in circumstances in which the defense attorney can’t be trusted to turn over evidence voluntarily.
Needless to say, I have no idea if this was justified in this case, just adding my perspective as a former prosecutor and current defense attorney.
Only three letter suffice.
WTF
Question for you legal scholars:
I know prisoner’s have their mail opened and read, but since this man has technically not been convicted of anything yet, have his rights been violated by the opening and reading of correspondence related to his defense?
The article says it was the office that was raided, not the home. Which probably makes it worse because wouldn’t ANYTHING in the office be subject to attorney-client privilege?
“wouldn’t ANYTHING in the office be subject to attorney-client privilege?”
Not if the attorney is under suspicion of being a part of the crime.
I understand trying to see both sides of an issue, and I appreciate the points made by Jim and Ben, but only one line of this article needs to be read for this judge to be disbarred:
According to court documents, the evidence seized from Gore’s office was taken to Rusch’s home instead of a crime lab.
Even the appearance of an impropriety so great in a capital murder case, where the defendant’s life is on the line, is absolutely unacceptable in a free society under a constitutional government.
Law enforcement has been babystepping into “the ends justify the means” for too long. It’s just becoming more obvious now.
Question for you legal scholars:
I know prisoner’s have their mail opened and read, but since this man has technically not been convicted of anything yet, have his rights been violated by the opening and reading of correspondence related to his defense?
AFAIK, mail between a defendant and his attorney are still privileged and are not opened and read by jail/prison staff.
I don’t know about disbarring him (the judge isn’t supposed to be an adversary of either side, and having a judge examine documents in camera is very common on the civil side of things, where I usually live) but he certainly needs a good talking to about the chain of custody, and due respect to officers of his court (which the defense attorney is.)
Not if the attorney is under suspicion of being a part of the crime.
I’m pretty sure that the standard is pretty high on the crime-fraud exception, and well beyond mere suspicion.
But then wouldn’t the evidence taken be related to the attorney’s crime and not the on-going murder trial? Are you suggesting the attorney and his client should be co-defendants?
Brandon: I don’t see the fact that the evidence was taken to the judge’s home to be particularly significant, nor the fact that it was not taken to a crime lab.
Assuming the evidence seized were documents, they would not normally be taken to a crime lab unless there were some reason to believe that a forensic examination was necessary; that’s almost never the case with documents.
As for the judge’s home, it’s not clear from the article, but one could imagine that if the police needed to vet the documents for privilege, and the judge agreed to perform that task, then his home would be as good a place as any to do it, and might be most convenient if the search warrant is performed in the evening or on a weekend. I’ve met with numerous judges at the homes, when an after-hours warrant was needed and they were on-call.
Again, I’m not vouching for this judge’s behavior (or the police’s), but I think that there are still plausible explanations that the story doesn’t rule out.
I’m not concerned about the evidence being taken to the judge’s home (kind of like what Ben said).
The defense attorney had been subpoenaed to testify and bring that evidence to court. The attorney then filed a motion to quash the subpoena, which was set for hearing. THEN the prosecution went to a judge that would give them what they wanted without icky due process getting in the way.
It’s hard to say whether the judge that signed the warrant was aware that a subpoena had already been issued and was set for hearing. If the state really was judge shopping, they certainly wouldn’t have disclosed it and the judge can’t go find out on his own. Making the prosecution extremely sleazy and the judge an unwitting participant.
I’m ashamed to say that I had to suppress a rather unladylike guffaw at the phrase, “taint team”.
Clearly, I’ve been hanging around the agitator and hit and run fellas too long.
Not only the judge. Why arent the prosecutors also being investigated for discipline and disbarring? The conflict of interest is so great here that I cannot see any fair solution short of letting the acused go free.