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State Information
In February 2020, the National Association of Criminal Defense Lawyers asked its membership about how it communicated with clients in custody. The survey focused particularly on lawyers’ ability to communicate with their detained and incarcerated clients. The below data is focused on findings regarding confidentiality, a key requirement of attorney-client communication.
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| Tangipahoa Parish Jail |
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| Tangipahoa Parish Jail |
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| LA State Penitentiary |
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| Ascension Parish Jail |
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Federal Information
To establish a Sixth Amendment violation based on a breach of attorney/client privilege, defendants in the Fifth Circuit must show that an intentional government intrusion led to prejudice.{1} 1 United States v. Davis, 226 F.3d 346, 353 (5th Cir. 2000) (“Even assuming that the government intruded on Davis's attorney-client privilege by initially seizing [defendant’s legal file], we would not dismiss the case against Davis without some showing of prejudice.”); United States v. Melvin, 650 F.2d 641, 644 (5th Cir. 1981) (“[T]he district court erred in dismissing the indictment [based on per se prejudice] without first finding that the intrusion into appellees' attorney-client relationship prejudiced the ability of their attorneys to provide adequate representation or otherwise prejudiced their defense. . . .”). The intrusion must be into an attorney-client communication that was “intended to remain confidential and was reasonably expected and understood to be confidential.{2} 2 Woodruff v. Davis, 2017 WL 9471831, at *6 (N.D. Tex. May 16, 2017), report and recommendation adopted, 2017 WL 5897534 (N.D. Tex. Nov. 30, 2017). Further, when a court finds that a defendant has been prejudice, it must then determine whether some remedy short of dismissal, such as suppression of the disclosed information, can be tailored to vindicate the appellees' Sixth Amendment rights to counsel and a fair trial and, at the same time, protect the public's interest in seeing that the guilty are brought to justice.{3} 3 Melvin, 650 F.2d at 644; See also United States v. Sander, 615 F.2d 215 (5th Cir. 1980) (“Where there is an intrusion on the attorney-client relationship the remedy for such a violation is not dismissal but the suppression of any evidence so obtained.”).
In U.S. v. Melvin, a government informant was authorized to attend various attorney/client meetings in a multiparty context in which trial strategy was discussed in order to “protect his informer status.”{4} 4 Id. at 642. Based on a Sixth Amendment violation, the United States District Court for the Middle District of Florida, dismissed the indictment and imposed as a sanction for the Government's intrusion into the defendants' attorney-client relationship by and through a codefendant, turned confidential informant.{5} 5 Id. at 641. On appeal, however, the Fifth Circuit Court found that “the district court erred in dismissing the indictment [based on per se prejudice] without first finding that the intrusion into appellees' attorney-client relationship prejudiced the ability of their attorneys to provide adequate representation or otherwise prejudiced their defense. Furthermore, the Fifth Circuit found that the facts of this case may support a conclusion that the disclosures were not reasonably expected to remain confidential.{6} 6 Id. at 646. The Court held that
“there is no governmental intrusion into the attorney-client relationship in violation of the Sixth Amendment when a confidential informant attends a meeting of other defendants and their counsel, at the request of the other defendants and their attorneys, under such circumstances that the informant could not reasonably refuse to attend without jeopardizing his undercover status, and under circumstances indicating that the other defendants and their counsel knew or should have known that the informant was not part of the defense team and knew or should have known that there was no reasonable expectation of confidentiality in the presence of the informant.”{7} 7 Id. at 641.
In United States v. Sander, 615 F.2d 215, 219 (5th Cir. 1980). The defendant’s case file was procured and glanced through by the police because the defendant's attorney was murdered ten days after he was retained.{8} 8 United States v. Sander, 615 F.2d 215 (5th Cir. 1980). In reviewing the lower court’s dismissal of the defendant’s Sixth Amendment claim, the Fifth Circuit stated that the Appellant made no showing of injury or prejudice stemming from the El Paso police’s review of his file.{9} 9 Id. at 219. A police officer testified that he did not discuss anything he saw in the file with any federal agents and that no evidence was supplied to the government by him. Nothing that was in his attorney's file was ever used by the government in this case.{10} 10 Id. The appellate court upheld the lower court’s denial of Sander’s motion to dismiss.
In Woodruff v. Davis, the defendant proved the Hunt County (TX) Sheriff’s Department routinely recorded all inmate phone conversations, including those with counsel.{11} 11 Woodruff, 2017 WL 9471831, at *1. {12} 12 Id. In Woodruff’s case, the Chief Jailer for the Sheriff’s Department listened to phone conversations between the defendant and members of his defense team, and then gave copies of those recordings to the DA’s office.{13} 13 Id. The trial court found a Sixth Amendment violation, granted the DA’s motion to be recused from the case, and appointed a special prosecutor.{14} 14 Id. at 2. Additionally, the trial court suppressed any evidence obtained from the phone conversations between Petitioner and the defense team or as a result of any investigation stemming from information obtained from the phone conversations.{15} 15 Id. In habeas, the federal district court held that after the evidence obtained from the phone conversations was suppressed, the defendant failed to show how he was further prejudiced. Therefore, he was not entitled to further relief, and the federal district court therefore upheld the trial court’s denial of a motion to dismiss indictment.{16} 16 Id. at 9.
