Tuesday, May 10, 2022

Privilege Not Waived

The North Carolina Supreme Court affirmed the conclusion of the Court of Appeals that it was reversible error to allow the client's former attorney to testify that it was his strategy to delay the case, offered in response to the client's motion to dismiss on speedy trial grounds

We affirm the Court of Appeals’ holding on the evidentiary question and conclude that the trial court improperly admitted the testimony of Mr. Farook’s prior attorney where there was no waiver of the attorney-client privilege. Because the trial court plainly erred in admitting the testimony of Mr. Farook’s former attorney as evidence against him without justification or waiver, the trial court’s order must be reversed. However, the State may have had alternative ways to put into evidence the same facts the attorney testified to if the improperly admitted testimony had not been admitted in the first place. The State may also have decided to rely on entirely different facts not elicited before the trial court if it had not been allowed to introduce the improperly admitted testimony. While the delay in this case is extraordinary and the facts in the record relied on by the Court of Appeals in concluding that Mr. Farook’s Sixth Amendment rights were violated appear largely uncontested, we nevertheless remand this case for a rehearing on Mr. Farook’s speedy trial claim rather than evaluate the evidence at this stage. Accordingly, we reverse the holding of the Court of Appeals to the extent that it allowed Mr. Farook’s motion to dismiss.

The client was represented by a succession of four attorneys, one of whom was the sole witness responding to the motion to dismiss

A hearing on Mr. Farook’s motion to dismiss was held on 24 September 2018. Mr. Farook’s former attorney, Mr. Davis, testified against him as the State’s sole witness. Importantly, Mr. Davis testified that it was his desire to delay the case once it became clear that Mr. Farook would possibly face a violent habitual felon indictment because in his experience delay would work to Mr. Farook’s advantage. He also testified generally to the backlog of cases that beset the Rowan County courts at the time and explained that he told Mr. Farook sometime during his representation that it was unlikely he would be available to represent him at a trial because of his other professional obligations.

The case moved on to trial, where the defendant was convicted and sentenced to life without parole. (Mike Frisch)


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