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Univ. of South Carolina School of Law

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Tuesday, July 12, 2011

Tried And Prejudice: Supreme Court Of Connecticut Finds Presumed Prejudice When Prosector Invades A-C Privilege

A prosecutor invades a defendant's attorney-client privilege by reading privileged materials containing trial strategy. Even assuming that the invasion was not intentional, should the court presume prejudice? And assuming that the court does presume prejudice, should there be a presumption in favor of dismissal? According to the recent opinion of the Supreme Court of Connecticut in State v. Lenarz, 2011 WL 2638158 (Conn. 2011), the answer to both questions is "yes."

In Lenarz, Patrick Lenarz

was charged in two informations, each alleging two counts of risk of injury to a child and one count of sexual assault in the fourth degree, in connection with the defendant's alleged conduct toward two children at a karate school in the town of Granby, where the defendant was an instructor....

Police later conducted a search of Lenarz's residence pursuant to a search warrant, and 

The next day, at the defendant's arraignment, defense counsel advised the trial court...that certain materials in the computer were subject to the attorney-client privilege and asked the court to fashion orders to protect the defendant's rights. The court ordered that "any communications from [defense counsel] to [the defendant] or from [the defendant] to [defense counsel] remain unpublished [and] unread." 

Thereafter,

During its examination of the defendant's computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant's trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department.

Defense counsel then moved to dismiss the information, but the trial court ultimately denied the motions, and Lenarz convicted of risk of injury to a child. Lenarz's appeal eventually reached the Supreme Court of Connecticut, which held three things. According to the court,

we conclude generally that prejudice may be presumed when the prosecutor has invaded the attorney-client privilege by reading privileged materials containing trial strategy, regardless of whether the invasion of the attorney-client privilege was intentional. We further conclude that the state may rebut that presumption by clear and convincing evidence. Finally, we conclude that, when a prosecutor has intruded into privileged communications containing a defendant's trial strategy and the state has failed to rebut the presumption of prejudice, the court, sua sponte, must immediately provide appropriate relief to prevent prejudice to the defendant.

In reaching this conclusion, the court agreed with "[a] number of courts have held that, when the privileged communication contains details of the defendant's trial strategy, the defendant is not required to prove he was prejudiced by the governmental intrusion, but prejudice may be presumed." The court specifically held that

because the disclosure of such information is inherently prejudicial, prejudice should be presumed, regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on that question

And while the court acknowledged that the State could rebut this presumption, it concluded that

In the present case, even a cursory review of the materials reveals that the defendant was presumptively prejudiced by the prosecutor's intrusion into the privileged communications taken from the defendant's computer because the privileged materials contained a highly specific and detailed trial strategy. Moreover, because the state's case in Docket No. H12MCR–03–128673 was based entirely on the complainant's account of the defendant's conduct, and because the privileged communications contained highly specific facts relating to the credibility of the complainant and the adequacy of the police investigation in that case, the communications went to the heart of the defense. Finally, the communications contained statements by the defendant of how best to defend the case, as opposed to general trial strategy being conveyed by an attorney to the client

Finally, while the court also acknowledged that the State could rebut the presumption that the action against Lenarz had to be dismissed, it determined, inter alia,

that a remand is not appropriate. Even if we were to assume that the state could have proved before trial that a less drastic remedy than dismissal would have been an adequate remedy, now that the case has been tried by the prosecutor who read the privileged communications, it clearly would be impossible to eliminate the potential for prejudice to the defendant with any other sanction. The prosecutor had had knowledge of the defendant's trial strategy during the one and one-half years preceding trial and, therefore, could use the information in preparing for trial. Indeed, the record strongly suggests that the prosecutor may have revealed the defendant's trial strategy to witnesses and investigators. In addition, consciously or unconsciously, the prosecutor's knowledge of the defendant's trial strategy may have affected his selection and examination of witnesses during trial, which is now a matter of public record

(Hat tip to Ann Murphy for the link)

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/07/a-prosecutor-invades-a-defendants-attorney-client-privilege-by-reading-privileged-materials-containing-trial-strategy-even-a.html

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