Thursday, November 17, 2022

Witness For The Prosecution

The District of Columbia Court of Appeals has reversed a criminal conviction where an attorney testified against his former client.

Notably (and this opinion is notable in many respects) the court holds that the attorney-client privilege is applied "more expansively" for  the benefit of clients  represented by court-appointed counsel in criminal matters.

Whether you agree with the majority or not, the opinion in my view is an impressive blending of first-rate scholarship with an understanding of the real world experience of representing indigent clients.

The opinion is authored by Associate Judge Easterly joined by Associate Judge Beckwith

Attorney John Harvey was appointed by the trial court to represent Brian Moore in a contempt proceeding after Mr. Moore allegedly violating an order prohibiting him from contacting his then-wife. But Mr. Harvey subsequently became a witness against Mr. Moore: Mr. Harvey was called by the United States government in a separate criminal case to testify about two private in-the-hallway-outside-the-courtroom mid-trial conversations during which Mr. Moore made hostile remarks about the District of Columbia Assistant Attorney General (AAG) who had been assigned to prosecute his contempt case. Based on Mr. Harvey’s inculpatory testimony, Mr. Moore was sentenced to an aggregate of eight years in federal prison for threatening a public official and obstructing justice (two counts each).

Not so fast

Although we reject Mr. Moore’s sufficiency claims, we hold, based on the record in this case, that the trial court erred in ruling that Mr. Harvey’s conversations with Mr. Moore were not privileged and thus his testimony about these conversations was admissible against Mr. Moore at trial. Further, because we conclude this erroneous evidentiary ruling was not harmless, we vacate Mr. Moore’s convictions.

In the contempt case

Prior to the first incident on April 12, 2018, the AAG asked the court to reverse its order discontinuing GPS monitoring of Mr. Moore via an ankle bracelet. Harvey and Mr. Moore met in the hallway outside the courtroom to discuss this development, or more particularly, Mr. Moore’s feelings about this development. Mr. Moore was “very agitated” and began by saying things like “[f]uck that bitch. I hate this bitch,” referring to the AAG. Responding to Mr. Moore, Mr. Harvey explained that the AAG was doing her job as a prosecutor, and it was “just silly on his part to be angry.” This only further angered Mr. Moore, who not only repeated “fuck that bitch” but also added “I’ll shoot that bitch.” When Mr. Harvey said, “Man, what are you talking about?” Mr. Moore replied, “That’s right, Harvey. I’ll shoot that bitch.” Mr. Harvey told Mr. Moore he was “starting to . . . think [Mr. Moore was] serious,” prompting Mr. Moore to say, “God damn right, Harvey. Fuck that bitch. I’ll shoot that bitch.” Mr. Harvey then told Mr. Moore he would have to withdraw from representing him and left to call Bar Counsel.


Mr. Harvey testified that Bar Counsel advised him that the decision whether to disclose such statements under this rule was left to his discretion.

Harvey attempted a non-noisy withdrawal that was denied

The trial court refused to allow him to withdraw based on the information he provided. In the meantime, Mr. Moore informed Mr. Harvey that he had just been “bullshitting” and reassured him, “I didn’t mean it. I didn’t mean it.”

He warned the client about future threats.

Nonetheless the following colloquy took place after the prosecutor sought to modify the client's release terms

Mr. Moore: [I]f I lose my job, I’m going to bust a cap in this bitch, I’m going to bust a cap in this bitch.

Mr. Harvey: Man, what are you doing?
Mr. Moore: Man, fuck this bitch. If I lose my job, I’m going to bust a cap in this bitch [making a hand gesture simulating a gun].
Mr. Harvey: I told you what I was going to do if you ever said something like that to me again.
Mr. Moore: Fuck her. Fuck you.

Mr. Harvey testified he had “no idea what this man was going to do.” Without further discussion, Mr. Harvey went back into the courtroom and renewed his motion to withdraw. He also told the court that he would reveal Mr. Moore’s statements to him if the court ordered him to, which the court did. After hearing Mr. Harvey’s account of Mr. Moore’s comments, the court immediately ordered Mr. Moore to be detained and subsequently granted Mr. Harvey’s withdrawal motion

The court concludes that the statements were protected by the attorney-client privilege.

the import of the attorney-client privilege is arguably at its apex when a criminal defendant is appointed counsel. A criminal defendant who has not hired their lawyer and is not paying their bills may not have the same confidence as a paying client that the lawyer is serving their interests and not those of the government.

Response to dissent

More fundamentally, the dissent shifts focus from the foundational rationale of the attorney-client privilege—fostering trust between attorney and client—to the need to preserve individual “autonomy” and “dignity.” Post at 67-69. Specifically, the dissent argues that we strip criminal defendants of their autonomy and dignity by failing to hold them accountable for statements that could be construed as threats spoken to their lawyer. We disagree. In recognizing that criminal defendants have a need in our adversarial criminal justice system to be able to trust court-appointed counsel and communicate about the whole of their criminal case, including feelings of fear and anger, we acknowledge their humanity—an essential component of according any individual true dignity.

Reversal was necessary in these circumstances.

Senior Judge Thompson dissented on the application of privilege to the statements

No one disputes that the threats were tangentially related to Mr. Moore’s legal matter (in that Mr. Moore presumably would not have threatened the prosecutor had she not been prosecuting him), but neither Mr. Moore nor my colleagues in the majority have identified any plausible way in which the threats were related to the purpose for which Mr. Moore sought legal advice or for the purpose of facilitating the rendering of legal services.

Unintended consequences

Far from any public good flowing from my colleagues’ conclusion, it would seem to follow from the analysis in the majority opinion that indigent criminal defendants can threaten their lawyers, witnesses, or court officials with impunity as long as they do so in private conversation with appointed counsel. Under the court’s holding today, it appears that no evidentiary use could be made of a statement such as the following uttered by the indigent defendant to their court-appointed lawyer: “You are doing a terrible job for me. I know where you and your family live, and I am going to torture and kill you all.” Similarly, if a court-appointed defense attorney disclosed to the court that a defendant who was on pre-trial release had repeatedly threatened to kill the complaining witness (as Rule 1.6 of the Rules of Professional Conduct would permit the attorney to do), that information could not be used to revoke the defendant’s release. These results would be alarming. My colleagues disclaim an intent to hold categorically that all threats uttered by an indigent criminal defendant to court-appointed counsel are protected by the expansive attorney-client privilege the majority opinion creates, see ante at note 30, but the opinion does not explain what facts and context different from those involved in this case would call for a different conclusion.

The dissent would hold that the second threats after the attorney's express warning clearly admissible.

I could see the court taking this on en banc.

Here is a similar case (not court-appointed counsel) from Maryland that I use in my teaching. (Mike Frisch)

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