Wednesday, July 6, 2011

Invasion Of Privilege By Prosecutor Requires Reversal Of Conviction

A decision from the Connecticut Supreme Court:

The central issue in this case is whether a prosecutor’s intrusion into communications between a defendant and his attorney that are subject to the attorney-client privilege requires the dismissal of the criminal charges against the defendant. The defendant, Patrick J. Lenarz, was charged in three informations, each of which charged the defendant with risk of injury to a child in violation of General Statutes § 53- 21 (a) (1) and (2), and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1)(A). Before trial, the prosecutor came into possession of and read certain written materials belonging to the defendant that were subject to the attorney-client privilege. Upon learning this fact, the defendant filed a motion to dismiss the charges against him, which the trial court denied. After a trial, the jury returned a verdict of guilty on one count of risk of injury to a child in violation of § 53-21 (a) (1). The jury found the defendant not guilty of all of the remaining charges, and the trial court rendered judgments in accordance with the verdict. The defendant then appealed...

The court majority held that prejudice is presumed when the prosecutor intrudes on confidential communications "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 [the question of prejudice]."

 There is a lengthy dissent that would not reverse the conviction for the prosecutor's good-faith conduct in reading a single e-mail about defense trial strategy. The dissent takes the majority to task for its Sixth Amendment jurisprudence as well as "improper" fact-finding in reaching a question not raised by the defendant.

In sum, the dissent accuses the majority of breaking new ground as the first court ever to reverse a criminal conviction for an inadvertant invasion of privileged material by a prosecutor.

The dissent notes that the defendant's computer was lawfully seized in November 2004. It took until July 2005 for the lab to complete its work. There were five e-mails that were arguably privileged out of a mountain of material. One--to the defendant's spouse--dealt with trial strategy. All of the documents were provided to defense counsel. (Mike Frisch)

 

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