Monday, April 4, 2011

Waving your rights goodbye

The other day I found myself in the discovery room at the Galveston County District Attorney's Office reviewing a file in a new case. Another attorney was in the room with her client. They were watching an in-car video on a computer monitor. The attorney's client was wearing an orange county jail-issue jumpsuit. Standing right behind him were two deputies from the Galveston County Sheriff's Office.

While watching the video, the defendant made comments about police brutality and other alleged sins on the video. All while two officers stood behind him, watching and listening.

His attorney talked to him about what they were viewing, answered his questions and told him what the law was. All while two officers stood behind him, watching and listening.

There needs to be some mechanism by which defendants who are held in jail awaiting trial can view videos pertinent to their case. I understand that an inmate can't just be left alone with his attorney in the discovery room. But reviewing evidence and discussing the law and trial strategy in front of two sheriff's deputies isn't a very good game plan.

The conversation between attorney and client is no longer privileged because neither the attorney nor the client had any reasonable expectation of privacy talking in front of two law enforcement officers. Everything that defendant said can now be considered an admission.

Just what was his attorney thinking? How can you have a meaningful discussion with a client when there are two officers standing right behind him? How can you even allow your client to open his mouth in the presence of the officers? Why not ask that other arrangements be made that would allow you and your client to converse in private?

Of course if the entire purpose of the gathering was to convince your client to plead out his case, instead of fighting it, I suppose it doesn't really matter that you violated your ethical duties.

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