June 21, 2010
Public Defender Contempt Reversed; Prosecution Lacked Imagination
The Kansas Supreme Court reversed a finding of criminal contempt against a county chief public defender who had refused to testify in response to the prosecutor's subpoena.
The public defender had represented a defendant in a first degree murder case. A client represented by the public defender's office in an unrelated case was incarcerated with the defendant. That client advised a public defender attorney of an intent to commit perjury at defendant's trial. The public defender advised the court of this (but did not identify the potential perjurer) and was granted leave to withdraw.
The prosecutor then dropped the charges. When charges were refiled, the prosecutor issued a subpoena to the public defender seeking to compel the disclosure of the other client's identity. There were seven public defender clients who were locked up with the defendant.
The court applied the Kansas Rule of Professional Conduct 3.8(e) governing subpoenas to defense counsel and held that the withdrawing public defender's
summary of her former client's expression of an intention to commit perjury...is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services from the public defender's office "in order to enable or aid the commission or planning of a crime or tort."
The summary did not waive the attorney-client privilege. Indeed, the public defender admitted that she had made disclosures in violation of the duty of confidentiality. The court held that the record failed to establish that the prosecution had no feasible alternative to obtain the information sought from defense counsel:
Although [the detective who testified at the contempt hearing] said he believed that there were no other possible avenues of investigation, as oral argument to this court demonstrated, it would have taken little time and less imagination to discern other directions and strategies more likely to lead to helpful information. Unless these directions and strategies were implemented and failed, the State did not demonstrate that there were no feasible alternatives other than to coerce [the public defender's] testimony.
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