Due Process

Attorney Rich Meehan on Due Process

Archive for 2011

Attorney-Client Confidentiality in the Tech Age

Wednesday, October 19, 2011 by:Rich Meehan

There is no greater privilege of confidentiality than that accorded the communications between an attorney and a client. No one, not even the Supreme Court, can invade that privilege without the express consent of the client. The rule appears in every state’s Codes of Professional Responsibility and Evidence. The only true exception is when an attorney has reason to believe the client is about to commit a crime.

The privilege goes to the core of the attorney-client relationship. We are the guardians of secrets. Unless a client can safely confide in us we are rendered ineffective. The privilege is broken when we permit a third party to be part of the communication. That third party is free of the constraints of the privilege and may broadcast the most private information learned, to the client’s eventual detriment. Protecting that privilege is the responsibility of the attorney. Too often a client will appear for a conference accompanied by a companion or spouse for moral support. The smart lawyer politely excuses the companion, understanding the significance of allowing that person to share the confidential discussion that is to ensue.

A controversy is brewing in our courts with the recent disclosure that a fellow defendant was wired by law enforcement and sent into a private conference between an attorney and client. Apparently, this egregious practice is longstanding in New York state, but foreign to Connecticut; however, that is a column for another day.

There is now another landmine for the lawyer and client: electronic communications. Writing this I feel like my grandfather, who was born in the era of horse and buggy and saw us land on the moon before his death. When I started to practice we sent letters, typed with carbon copies for the file (for the very young you can read about Carbon Copies on Wikipedia). We were careful to destroy the carbon paper lest someone happen upon it and read a privileged communique. Now we are in the age of social media, twitter, texting, and emails.

We have all had the experience of trying to reach a busy person–who answers the phone these days? The most direct method to get that person’s attention: text or email. Smartphones have taken our email accounts off our desktop and put them in our pocket. This has now become the fastest method of attorney-client communications. There are even billing programs that will track the times spent on these exchanges so no second is missing from the invoice. For the busy young lawyer on the go this is a godsend; or is it?

A recent opinion from the American Bar Association advises about the potential pitfalls in using emails and text messaging to transmit confidential communications, particularly where the communications are over work place devices or systems. Lawyers can no longer guarantee that your employer or others within your home will not have access to personal email communications and text messages. Before permitting this as a means of communication with your lawyer you should make an inquiry as to the level of privacy protection that any such communications will have.

For example, although many employees may be aware that accessing their personal email via a work computer might potentially allow the employer to view their personal email, you may not be aware that accessing your personal electronic messages via an employer-provided smartphone might raise similar issues. Text messaging may raise comparable concerns.

Employer-provided computers, systems and smartphones are not the only concern here. Even where you access personal email on a personal smartphone or home computer, there may be access by others, such as family members, particularly in cases such as divorces or will contests. Other problems may arise with the use of hotel or library computers as well.

You should discuss this with your attorney and investigate whether there are any potential privacy leaks that could affect you before communicating by electronic means.

The Supremes ain’t just a singing group!

Thursday, October 13, 2011 by:Rich Meehan

The first Monday in October marks the traditional opening of the new term of the United States Supreme Court. The Court term extends to the following October. The Court was created by the Judiciary Act of 1789, and has annually reconvened since its organization in 1790. The nine justices are lifetime Presidential appointees, confirmed by the Congress and only removable by impeachment. Since only death or voluntary retirement of a Justice can impact the court’s conservative/liberal composition, serendipity plays a large part in the “political” composition of the Court.

Decisions are rendered either by a majority of the Court (5-4 at the least) or by plurality (where a majority of the Justices concur in the result but not the legal reasoning supporting it). One member of the Court is charged with writing the majority opinion, if it is a majority ruling. Dissenters will pen their own opinions. While not having the force of law, dissenting opinions can later reshape precedent if the composition of the Court changes and the issue appears before them again.
In a plurality ruling one member will pen the plurality decision, and the others concurring in the result may write concurring opinions.

With the hottest topic in this election cycle being the constitutionality of ObamaCare, the watch is on for this issue to reach the Court. Recently, the Obama Administration elected not to seek a rehearing of the 11th Circuit Court of Appeals ruling that the law exceeded the constitutional powers of Congress. As as result the case will be argued this term. A decision could come in time to impact the 2012 election.

The Court’s jurisdiction stems from the Constitution. It has both original jurisdiction and discretionary appellate jurisdiction. Article III, sec. 2 provides: “”In all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

The Court’s appellate jurisdiction is created by statute (28 United States Code, Section 1251). The Court will review decisions from the United States Circuit Courts of Appeals, and final decisions by the state courts of highest appellate jurisdiction. It is limited to cases raising federal statutory or constitutional issues. Unlike the state appellate courts, the Supreme Court does not have the authority to issue advisory rulings. Original jurisdiction is generally limited to disputes between states, and is exceedingly rare.

Petitioners seeking review must do so by filing a petition for a Writ of Certiorari (shorthand: Cert.). Supreme Court Rule 10 provides that Cert. will only be granted for “compelling reasons.” They are: “(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”

The 11th Circuit decision conflicts with an opinion upholding ObamaCare by the 6th Circuit. Thus, the battle lines are drawn and healthcare now has a date with the Supremes.

GPS Tracking: Is Big Brother Violating the 4th Amendment?

Thursday, October 6, 2011 by:Rich Meehan

In high school many of us read the classic 1984, in which George Orwell posited a society where citizens were subject to constant surveillance by the omni-present Big Brother. Advocates of civil liberty often pointed to Orwell’s classic as the end result of a society where individual privacy rights were subordinated to the public “good.” In 1967 the United States Supreme Court issued its landmark privacy decision in U.S. v. Katz, ruling that the Fourth Amendment to the Constitution grants each of us an expectation of privacy in certain aspects of our lives. That expectation triggers the need for a judicial warrant to justify police or governmental intrusion into those private areas.

Technology has evolved and in its evolution law enforcement has been provided with multiple investigative tools. In November of this year the Supreme Court will once again consider the extent of the Fourth Amendment’s expectation of privacy when it reviews a decision from the Circuit Court of Appeals for the District of Columbia, United States v. Jones. The issue is the extended surreptitious use of a GPS tracking device to track the movements of Jones’ automobile 24 hours per day for a month. A court had previously granted agents the use of the device but for a limited period of time. The agents continued the tracking after the expiration of the court order. The information gleaned aided the Government’s proof in Jones’ trial for conspiracy to distribute narcotics.

To trigger the Fourth Amendment’s warrant requirement the first issue for that court was whether the use of a GPS tracking device on a vehicle that is traversing the public streets is a search within the meaning of the Amendment. Other Courts of Appeals have ruled that this does not constitute a search. An exception to the Amendment’s expectation of privacy right exists when citizens do not act in a manner suggesting that they do not expect government intrusion. A person in his home clearly has this expectation of privacy. When that same person places his garbage on the street he has abandoned that expectation of privacy in the contents of the garbage bag. Thus police seizures of trash and subsequent discovery of evidence hidden within does not violate the Fourth Amendment.

In Jones case the Government argued that there is no expectation of privacy in tracking a vehicle moving on the public streets as that can be observed by anyone at any time. Despite the public nature of such movement the court in Jones ruled that no one would anticipate that their movements would be tracked constantly, for a month. Video surveillance cameras are everywhere in our cities. Inspection of these videos has become an important tool for law enforcement investigating street crime. Defense lawyers as well have learned to seek information from street surveillance cameras. In a highly notorious case I defended of a man accused of being a serial stalker, video surveillance from a gas station’s camera actually demonstrated that the “victim” had set up my client, and, was actually the stalker, not him, leading to the dismissal of all charges.

The Fourth Amendment does not apply to private citizens or merchants utilizing video surveillance to protect their property and its surrounding curtilage. The Amendment is only applicable to those situations where there is government involvement. Private citizens violating another’s expectation of privacy may lead to a civil lawsuit for the invasion but may also provide the fruits of that surveillance to the police. Use of these cameras on a public street, since they are limited in what they view does not constitute the wholesale invasion of the expectation of privacy that concerned the Jones‘ court

Increased vigilance since September 11th and the advances in surveillance technology continue to challenge courts. Yes, George Orwell, Big Brother is watching.

Death at Neverland, is it Manslaughter?

Wednesday, September 28, 2011 by:Rich Meehan

Evidence began this week in the trial of Dr. Conrad Murray, the embattled former personal physician for pop icon, Michael Jackson. Jackson died from an overdose of an anesthetic, propofol, prescribed by Murray. What is not in dispute is that Murray had been administering propofol to Jackson to treat his chronic insomnia. What is disputed is whether it was medically appropriate to administer a drug normally intended for a hospital operating room. In his opening statement, lead prosecutor referred to Murray’s actions as not comporting with the applicable medical standards of care.

In medical malpractice actions a claimant has the burden to prove that a doctor deviated from accepted medical standards of care. Such a deviation that causes injury is the basis for a malpractice damages award. But the question posed in this case is whether the basis for civil tort liability should also expose a doctor to criminal penalties. Malpractice claims for wrongful death are not uncommon in our courts. Manslaughter prosecutions for standard of care deviations are extremely unique, but not unheard of.

In February of this year Dr. Roberto Bonilla was convicted in a Los Angeles courtroom of manslaughter for the death of a 33 year old man during attempted gall bladder surgery preformed in a home based health clinic. Rather than admit the patient to a hospital and perform the surgery under general anesthesia, Bonilla administered the local anesthetic, lidocaine, in such a dose that the patient immediately went into cardiac arrest and succumbed. The physician was convicted of involuntary manslaughter, the very charge that Murray faces. For his wrong, Bonilla received 6 months in jail (to be served over 30 consecutive weekends) and five years probation.

Under California law involuntary manslaughter is a lesser form of homicide. Unlike murder, which generally requires an intent to kill, involuntary manslaughter can occur without such a guilty intent. In that state it is defined as an unlawful killing that takes place during the commission of an unlawful act (not amounting to a felony), or during the commission of a lawful act which involves a high risk of death or great bodily harm that is committed without due caution or circumspection. The charging document in Murray’s case alleges that Murray acted without malice and killed Jackson in the manner described in the statute.

Every felony requires proof of some form of state of mind. Acts are either intentional, reckless or criminally negligent. In the case of involuntary manslaughter the very name describes the mental state required. The actor is not alleged to have intended death. In our state the equivalent charge would be Manslaughter in the Second Degree, a Class C felony punishable up to 10 years in prison: “Sec. 53a-56. (a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .” Recklessness requires proof that the actor was aware of and consciously disregarded a substantial and unjustifiable risk of death. “The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

Here, more than a deviation from accepted medical standards of care would be needed. In a malpractice case that deviation is proven by showing that it departed from what a reasonably prudent similar practitioner would do under the same or similar circumstances. This is a clear distinction from the “gross deviation” and conscious disregard needed to prove criminal responsibility

Preparing for Trial

Wednesday, September 21, 2011 by:Rich Meehan

Trial lawyers are like directors of live TV or theater productions. When a case is finally reached for trial there are a number of tasks to be completed to set the stage for the final presentation. Civil jury cases have a definite shelf life in Connecticut, having already gone through a number of stages. Depending on the complexity of the issues and the Judicial District in which the case is pending, from inception of suit to the first day of trial can take 1-4 years. In recent years our judges have endeavored to shorten that time span.

Once discovery is complete and all relevant depositions of fact witnesses and experts have been accomplished the lawyer’s task is to start to collate vast amounts of information, catalog those diffuse facts and begin to assemble the theme of the case. In the past cases were placed on a printed trial list. Periodically, the presiding judge would publish the list and have a jury call. Lawyers would attend this cattle call and inform the court whether a case was ready for trial or needed reassignment. The lawyer had to monitor the progress of prior “ready” cases on the list to gauge when a case was going to be called in to start.

In complex cases, requiring expert testimony, this system was a nightmare. It was difficult to project when the case would actually commence and thus lining up experts was constantly problematic. In recent years, the courts have gone to definite assignment dates. Lawyers confer with each other in a court mandated scheduling conference and agree to a schedule for completion of discovery and dates for trial. When your date arrives you have to be ready.

So what does that entail for the busy trial lawyer with a stable of cases? First, it requires an experienced support staff to keep us to the schedule. Due dates have to be calendared and care taken to make sure that the other side has received all prospective exhibits and expert opinions. Prior to the actual trial date the court sets a Trial Management Conference. Attendance is mandatory, coupled with a Trial Management Report (TMR). The Judicial Department website provides the format for the TMR (http://jud.ct.gov/external/super/Standorders/Civil/TMC_Order_Court.pdf).

Preparing the TMR is a useful organizational tool for counsel and support staff. First, the court requires all sides cooperate in the preparation of the report. It begins with a simple, non-argumentative statement of the issues in the case which the presiding judge will read at the inception of jury selection. It must include the names and proposed order of presentation of ALL trial witnesses. Failure to include a witness on the list will lead to the witness’s exclusion.

All proposed trial exhibits must be identified and pre-marked with appropriate plaintiff or defendant exhibit stickers. Counsel have to indicate whether there will be objections to particular exhibits and the basis, as well as whether there are outstanding legal issues. Typically, when lawyers anticipate a battle about the admission of an exhibit or testimony they will prepare a Motion in Limine which seeks a ruling from the court before the evidence is actually proffered. This allows the judge the chance to research the issue and thus minimize the chance for an erroneous ruling.

While forcing the trial lawyer to be organized in advance, the TMR and the resulting Trial Management Conference allow for the seamless presentation of evidence. When done correctly they minimize the intrusion that a trial is in the lives of jurors and save lawyers from developing ulcers. Cooperation among adversaries lets the court and jury focus on the real issues. To insure compliance courts will sanction offending lawyers. The more egregious the breach, the deeper into that lawyer’s checkbook a judge will go, sometimes ordering the payment of thousands of dollars to the other side. The lesson for counsel is be prepared and get it right!

Miranda Warnings Given More Teeth

Wednesday, August 31, 2011 by:Rich Meehan

In 1966 the U. S. Supreme Court issued its landmark decision in Miranda v. Arizona, acknowledging that a person in police custody may not be interrogated without being warned of certain of his 5th and 6th Amendment rights. Principally, those rights are the right to remain silent; to be informed that anything said will be used against him; that he is entitled to an attorney and if he cannot afford an attorney one will be provided for him; and last, if he does decide to answer questions he can stop at any time. In the decades since there have been a myriad number of decisions by appellate courts on all levels further clarifying or distinguishing instances where the so-called Miranda warnings are needed (not advice about how to dance the Meringue with Carmen Miranda).

The linchpin of Miranda is the existence of custodial interrogation. Thus, if a person is detained, but under circumstances where he is free to leave, the courts have uniformly permitted the admission of inculpatory statements made in the absence of the Miranda warnings. What constitutes “custody” and what constitutes “interrogation” have prompted numerous appeals. The real teeth to Miranda, however, is not the warning requirement but the remedy for a violation of those rights. That remedy is suppression or exclusion of the damning statements.

At trial a defendant has the right to challenge the admission of such statements by filing a Motion to Suppress Evidence. The trial judge will conduct an evidentiary hearing outside the presence of the jury to elicit facts necessary to determine if the there has been a Miranda violation. If found the court then invokes what is known as the Exclusionary Rule (announced in Mapp v Ohio in 1961), prohibiting the use of the illegally obtained statements in evidence.

This week our state Supreme Court reviewed a ruling by a trial judge in Stamford and ordered a new trial for Harry Gonzalez. Gonzalez had been convicted of felony murder and robbery in the first degree in the brutal slaying of a 75 year-old woman in her home. The trial judge had been persuaded that the Miranda warnings were not given in a timely fashion and had excluded some statements by Gonzalez but segmented the police interview and determined that other statements could be admitted. Gonzalez did not confess to the crime; rather, he admitted knowledge of the deceased and that he had been at her home. At the core was whether the accused was being interrogated and whether his invocation of his right to an attorney had been artfully overborne by the investigating officers.

This is the type of decision that sparks outrage at our courts. Staunch law and order supporters view such rulings as handcuffing police and allowing guilty people freedom on legal loopholes. That is not the case here. First, you should understand that in keeping with its staid, conservative Yankee tradition, our appellate courts rarely reverse convictions, particularly where the evidence of guilt is overwhelming. Our judges will strive to uphold jury verdicts unless the legal errors are substantial and harmful. In the Gonzalez case the police did violate his Miranda rights. But the inquiry did not end there. It was necessary for the Court to determine whether the error by the trial judge in failing to suppress the statements was harmful; that is, did it unfairly impact the result in this case. The Court examined the balance of the prosecution’s case and concluded that the evidence, exclusive of the tainted statements, would not support the conviction. The balance of the state’s proof depended on testimony from a turn-coat “accomplice” who had a history of drug abuse and criminal convictions. Two other witnesses offered by the state gave descriptions of the assailant that did not match the defendant.

The Court did not open the jail doors and free Gonzalez. Instead it remanded the case for a new trial without the illegally obtained statements. The remedy for the Stamford Police in the future is simple: if you want to avoid this type of result pay careful heed to the rules or your efforts will be undone.

Rich Meehan is a nationally certified civil and criminal trial specialist and a Fellow of the International Academy of Trial Lawyers. Rich is the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Eyewitness Identification: The Rules are Changing

Tuesday, August 30, 2011 by:Rich Meehan

In criminal jury trials jurors may rely on two types of evidence: direct and circumstantial. Circumstantial evidence allows a factual conclusion to be reached based on inferences built from other indirect facts. Direct evidence, by contrast, is direct proof of a fact, usually based upon testimony from a witness as to what that person saw or heard or did. There are no inferences or presumptions that aid this proof, and if believed it is damning evidence.

The traditional example of direct evidence is the account of an eyewitness. To the uninitiated, it will generally appear that eyewitness testimony is the most reliable. After all, a witness takes an oath to tell the truth and then recounts in detail his recollection. That recollection is then forced to withstand the crucible of cross examination. Witnesses often recount in graphic detail what they recall from an event. Many times there are additional facts that serve to corroborate the witness’ recollection. In “whodunit” type cases the identification of the accused as the perpetrator is the central issue for the jury to resolve. Eyewitness testimony accounts for the overwhelming percentage of evidence of an identification. Where that testimony is corroborated by other facts, such as fingerprints or DNA, the result is a conviction that will generally withstand appellate review.

But what of the cases where the only evidence to tie an accused to a crime is the recollection of one eyewitness? Is that sufficient and is it reliable? These are questions that have been repeatedly debated in our jurisprudence. There is a traditional jury instruction given in criminal cases in Connecticut, jurors are told they: “. . . should take into account whether the witness had adequate opportunity and ability to observe the perpetrator on the date in question. This will be affected by such considerations as the length of time available to make the observation; the distance between the witness and the perpetrator; the lighting conditions at the time of the offense; whether the witness had known or seen the person in the past; the history, if any, between them, including any degree of animosity; and whether anything distracted the attention of the witness during the incident. You should also consider the witness’s physical and emotional condition at the time of the incident, and the witness’s powers of observation in general.”

In cases where the witness’ recollection is uncertain, unclear or inconsistent the court must inform the jury that there are dangers inherent in eyewitness identification. The failure of a judge to give these special instructions will lead to a reversal on appeal. Defense lawyers and social scientists have argued that these same dangers should be discussed in all disputed identification cases, even when the witness is adamant. Courts have consistently rejected these arguments, until now. Recently the New Jersey Supreme Court, in a landmark decision which will resonate nationally, State v. Henderson, has ruled that, “[t]he current legal standard for assessing eyewitness identification evidence must be revised because it does not offer an adequate measure for reliability; does not sufficiently deter inappropriate police conduct; and overstates the jury’s ability to evaluate identification evidence.” This court acknowledged the vast amount of modern research on the frailties of human memory, noting that misidentification has accounted for the vast percentage of wrongful convictions that have been overturned based on newly utilized DNA evidence. One author reports that of the 273 exonerations obtained by the Innocence Project, 3 out of 4 were based on eyewitness identifications, a chilling statistic.

In November the U. S. Supreme Court will reconsider the standard that emerged in 1977 from its seminal case of Manson v. Brathwaite, a Connecticut conviction based on a challenged police identification procedure. Social science, which was once roundly rejected by trial courts, will now play a decisive role in the resolution of this troubling issue.

Retrying the Rocket, Roger Clemens

Monday, August 22, 2011 by:Rich Meehan

September has always been a defining month for major league baseball. Rosters expand from 25 to 40 as teams either begin their tuneups for the ensuing playoffs or expose their youngsters to the big league, looking to the future. September was also the month that Roger Clemens would focus on another World Series ring or the Cy Young chase.

This September the Rocket isn’t unleashing his devastating fastball. This is the month that will define not only his baseball legacy but also his liberty. On September 2nd a federal judge will entertain arguments on the issue of whether the Government gets another chance to put the Rocket in a different set of pinstripes, those of a federal prisoner.

Clemens dodged a high, hard inside pitch by the Government when the prosecution, either from an over-zealous abuse of the rules or just plain stupidity, displayed a portion of a video to the Clemens trial jury that had been previously ruled out of the case by the judge. In their recent filing the Government called it inadvertent and the result of being over-burdened by the remainder of their trial preparation. From a trial lawyer’s perspective, this is not a simple, honest mistake. Trial Practice 101 teaches law students that you should always fully review any potential trial exhibit. It’s hard to accept that the prohibited portion of this video was inadvertently included.

The Double Jeopardy Clause of the Fifth Amendment prohibits the Government from twice exposing a citizen to a loss of liberty. The classic example is the person acquitted of a crime, arrested once again and forced to endure a second trial. The Clause requires the Government to take their best shot once, and only once.

In a lesser-known situation, multiple charges that seek to punish what is essentially a single crime by multiple counts is not allowed. For example, take someone who is accused of the crime of possession of narcotics and who has both cocaine and heroin. The state cannot charge separate counts with separate penalties for possession of each substance. The crime is possession of narcotics no matter how many different types of narcotics are possessed.

Within a single prosecution some instances of double jeopardy, claimed for multiple charges arising from the same incident, are cured by the imposition of concurrent jail terms rather than those terms running consecutively. The Clause may allow the multiple convictions but not permit piling on the penalties, because it protects liberty. Different as well is the declaration of a mistrial because a jury is unable to reach a verdict. There is a manifest necessity that justifies the mistrial but jeopardy does not attach and a retrial most often results in convictions with no Fifth Amendment violation.

This mistrial situation is not as clearly defined as in the instance of a prior acquittal. The issue whether jeopardy attaches clearly focuses on the Government’s intention. The standard established by the U.S. Supreme Court is set forth in the 1982 decision, Oregon v. Kennedy: “The general rule is said to be that the double jeopardy clause does not bar reprosecution, ‘. . . where circumstances develop not attributable to prosecutorial or judicial overreaching, . . . even if defendant’s motion is necessitated by a prosecutorial error.’ . . . However, retrial is barred where the error that prompted the mistrial is intended to provoke a mistrial or is ‘motivated by bad faith or undertaken to harass or prejudice’ the defendant.”

When a pitcher is ejected for throwing at a batter’s head, the umpire has to determine the intent of the pitch. On September 2nd we will learn whether the Government gets ejected like the head hunting pitcher.