Judge decrees that defendants must waive attorney-client privilege

"My attorney has advised me that this plea will result in the following immigration consequences for me: __________."

This is the new admonishment that Marc Carter, the Presiding Judge of the 228th Judicial District Court has added to the plea papers used in that court.

What could possibly be wrong with the defendant acknowledging he understands the potential immigration consequences of his plea? What court, in the post-Padilla era wouldn't want it on the record that the defendant was aware that his plea could have some serious consequences as to his or her future in the United States? More cynically, what court wouldn't want to cut off those habeas writs alleging the defendant was unaware of the consequences of his plea off at the knees?

But let's think about this for a second. The last time I checked my conversations with my clients were privileged (with very rare exception). Only the client can waive that privilege.

Judge Carter is requiring defendants to waive attorney-client confidentiality. More than that, Judge Carter is requiring defendants who may not understand the privileges and protections they are afforded by law.

When entering a plea, a defendant necessarily waives his right to remain silent. But there is no such requirement that he waive attorney-client confidentiality. Any attorney who presents this paperwork to his client prior to a plea is asking that client to waive a right he or she may not even be aware they have. Any attorney who asks his client to sign this admonishment is knowingly violating a sacred trust.

Are we going to start carving up that privilege depending on the type of crime alleged or the immigration status of the defendant? Is asking a certain class of defendants to waive privilege a violation of the 14th Amendment's Due Process Clause?

And then there's the little bitty problem that a defense attorney cannot tell a client exactly what the potential immigration consequences of plea could be. If the alleged conduct would constitute a felony under federal law, then the client may be subject to deportation. If the alleged conduct is a crime of dishonesty, the client may be deportable. If the client pleads guilty to a drug charge, he may be deportable. But what about immigration bonds and the pleadings los federales must file? What about the client's status and his history? These are all factors that play a role in how any immigration action might end.

And exactly how is this going to work when the defendant who is here without the blessing of our government is offered a reduced charge if he pleads guilty on the initial setting? Is that attorney going to have enough information to explain to his client what the implications of the plea may or may not be? Is that attorney going to know what his client's legal status is and how the court proceedings may affect that status? Will the court question the signing of the admonishment on the initial setting or be satisfied to have something to that effect on the record?

The admonishment is a bad idea for many different reasons. Judge Carter needs to reconsider the entire idea.

Admonishment - 228th JDC

Working in a data mine

So you think there's such a thing as a reasonable expectation of privacy anymore? If you do, James Bamford has some news for you.

In the current issue of Wired magazine, Mr. Bamford explores the new data mining facility being constructed by the NSA in a Utah desert and the world's fastest supercomputer housed in the Smokey Mountains in Tennessee. He also paints a haunting picture of just how much information our own government is collecting on its own citizens.

But “this is more than just a data center,” says one senior intelligence official who until recently was involved with the program. The mammoth Bluffdale center will have another important and far more secret role that until now has gone unrevealed. It is also critical, he says, for breaking codes. And code-breaking is crucial, because much of the data that the center will handle—financial information, stock transactions, business deals, foreign military and diplomatic secrets, legal documents, confidential personal communications—will be heavily encrypted. According to another top official also involved with the program, the NSA made an enormous breakthrough several years ago in its ability to cryptanalyze, or break, unfathomably complex encryption systems employed by not only governments around the world but also many average computer users in the US. The upshot, according to this official: “Everybody’s a target; everybody with communication is a target.” 

In its never-ending quest to keep us safe from some unnamed enemy, the government has instituted a program by which the NSA is intercepting every telephone call, email, internet search, e-purchase and toll tag receipt in an attempt to data map the entire United States.


The facility being built in the Utah desert will be five times the size of the US Capitol. Its warehouses will store an ungodly amount of raw data that its supercomputers will sift through for patterns that will allow the NSA to decrypt encrypted messages and attempt to predict what the supposed terrorists will be up to next.

Of course the NSA's track record has been pretty abysmal. Despite their budget and high tech goodies, the NSA failed to predict either of the attacks on the World Trade Center, the attack on the USS Cole or the bombings of embassies in East Africa. But, what the hell, let's give them a few more billion dollars and lift the ban on domestic spying and see what they can do.

Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.” It is, in some measure, the realization of the “total information awareness” program created during the first term of the Bush administration—an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy. 

Through agreements with AT&T and Verizon, the NSA collects data at switches across the United States. A special thanks should be due to all the iPhone and iPad users for their contribution to domestic spying.

The data mining raises questions about the fate of the Fourth Amendment as such an operation will render the reasonable expectation of privacy test all but moot. Los federales will be recording your phone calls, text messages and e-mails. The only safe avenues of communication will be face-to-face and by the old fashioned letter. If you know your communications are being captured, you can't say with a straight face that your expectation of privacy was reasonable.

More disturbing is the effect on lawyer-client confidentiality. Your phone calls with your client will be sitting in a database somewhere in Utah along with your email correspondence. And don't forget that supposedly secure remote teleconferencing you've been using. The all-knowing eye in the sky knows all.

You wanted the government to keep you safe from any potential danger anywhere in the world, no matter how remote or unlikely. Now you've got it. You traded your freedom for security. How does it feel? Somewhere along the line we've forgotten that the government is supposed to work for us. Instead, we have a government that's spying on us.

As Billy Joel once sang "This is what you wanted ain't you proud? / 'Cause everybody loves you now."

It's a dangerous world out there

Jails, according to the Beaumont Enterprise, are dangerous places filled with dangerous people. These people are so dangerous, in fact, that we must monitor everything they do and everything they say. You never know when they might be up to no good.

Now that it has come to light that the good folks down at the Galveston County Jail were recording phone calls between inmates and their attorneys, the practices of the other 253 counties in our fair state are slowly, but surely, being made public, too. We know that both Harris County and Jefferson County choose to disregard the accused's right to keep his communications with his attorney confidential.

It's probably not a bad bet (nor a bet with long odds) that this practice is common throughout the state. Of course we are assured that no one ever listened in on those privileged communications. Then again we are also assured that  prosecutors around the state happily hand over Brady material at every opportunity.

As Grits points out, the journalistic jewel out of Jefferson County, was speaking out of both sides of its mouth the other day. The Enterprise ran an editorial in which the paper denounced the violation of the rights of the accused by the Jefferson County Jail. But, the paper ran a second editorial best described as "on the other hand."

Prosecutors do not eavesdrop on these recorded conversations to learn tidbits they can use in court. The attorney-client conversations are simply included in the overall taping that goes on each day - again, for safety. 

If this tradition is changed, what could prevent inmates from arguing that they should be able to talk to family members without being recorded? That could lead to all kinds of problems, such as inmates planning additional crimes. 

This practice has not been a problem in our criminal justice system. It doesn't need fixing. 

And on what authority do our media mavens in the Golden Triangle base the supposition that prosecutors don't listen to attorney-client conversations? It's not like prosecutors around this state haven't been caught with their hands deep in the cookie jar before. Hell, John Bradley has made a career out of violating the rights of the accused.

If "tradition" is the best argument the paper can put forward for why the practice should be allowed to continue, the debate is over because you just can't argue with stupid. Slavery and racism were long-standing traditions in the South -- I hope the editorial writers aren't advocating a return to the olden days because of tradition. If you want tradition, just look for three Aggies standing on a street corner.

The practice of recording attorney-client conversations is a problem - as is any trampling of the rights of the accused. Maybe prosecutors and judges and the police don't view it as a problem because it makes it easier to label folks as criminals; but it is a problem. Any actions taken on behalf of the state that serve to limit the accused's rights under the Bill of Rights is an attack on the rights of the entire citizenry. Today it might be a drug dealer or a murderer - but tomorrow it could be you, a family member or a friend.

Once you allow the state to take away someone's rights because they are one of them, you make it easier for the state to take away your own rights.

H/T Grits for Breakfast

Getting credit where credit isn't due

A man who puts out a fire on his neighbor's property should be commended for his actions. Going out of one's way to help someone else is a noble deed. Even more so when that person places his life in danger in coming to the aid of another.

But when the man putting out the fire is the same man who set it - well, that's a different story altogether.

And so it goes down south of Houston in Galveston County.

Y'all may remember my post a couple of weeks ago about the Galveston County Jail recording conversations between inmates and their attorneys. Galveston County DA Jack Roady said he would get to the bottom of the cess pool and stop the recordings.

Well, Jack didn't exactly move at the speed of light to insure that the rights of inmates in the county jail were protected after State District Judge Susan Criss shone a little light on the problem.

"What's to prevent a sheriff's deputy from listening to a call and finding other evidence that was illegally derived and then it's given to the prosecutor?  - Gary Trichter, TCDLA President

To his credit, Mr. Roady did ask his prosecutors if any of them had ever listened in on a conversation between an inmate and his attorney. Only one raised his hand. Whether that means that no one else did, or that no one else is willing to admit it, I don't know. I certainly hope that it's the former.

Of course we'll never the know the full extent to which Galveston County violated the rights of those it held in custody. The mere fact that the conversations were recorded violates the right of the accused to have privileged communication with his or her attorney. If they're taping phone calls between inmates and attorneys, what other rights are being trampled on down along the coast?

And, what's this - the Harris County Jail is doing the same thing?

The Harris County Jail also has been routinely recording all conversations, including those between attorneys and clients, but is trying to change the practice, sheriff's spokesman Alan Bernstein said. Bernstein said the jail has been programming defense attorney phone numbers into the system over the past few months. 

These are the same folks who want to install a video conferencing system to cut down on the cost of in-person visits. These are the same folks who swear up and down that they won't be recording or listening in on privileged communications on the proposed system. But here they are making a mockery of the right to converse with an attorney in confidence.

There is no need to praise Galveston County Sheriff Freddie Poor or Harris County Sheriff Adrian Garcia (or whatever PR flack he puts out in front of the cameras) for ending the practice. No one involved in this mess should be lauded for doing the right thing and putting an end to an illegal practice.

What else aren't we being told? Hmm, might want to get on that right away and let us know.

Listening in

While Harris County is looking to install video conferencing in the jail and promising that the integrity of the attorney-client relationship will not be compromised, the word on the street is that the Galveston County Jail was recording phone calls from the jail between inmates and their attorneys. And, as if that's not bad enough, some of these recordings were forwarded to the Galveston County District Attorney's Office.

Of course Jack Roady, the Galveston County DA, claims that the procedure is being stopped. Excuse me, Jack? "Being stopped?" Really. Either the phone calls are being recorded or they aren't. It's quite easy to stop the procedure.

The very fact that those calls were recorded raises the question of whether or not an agent of the state listened. And what about those cases in which the DA didn't request recordings of jail house phone calls? How many people had their right not to incriminate themselves infringed upon by Galveston County? How many had their right to privileged communication with their attorneys violated?

Now it's time for the DA's Office to come clean and notify defendants and their attorneys on all cases in which these recordings were made and forwarded to the prosecutors. If there is any honor in the office, Mr. Roady should sign off on orders granting writs of habeas corpus in each and every one of those cases.

The actions of Galveston County are reprehensible and call into question the validity of the criminal (in)justice system on the island.

Here's a little Blondie for y'all.

Defense attorney turns snitch

Federal prosecutors used an informant to gather information from Shannon Williams, suspected of operating a multi-million dollar drug ring from inside the Douglas (NE) County Jail.

Mr. Williams bragged about his drug dealing exploits to his jailhouse visitor. He asked his visitor to launder drug money for him. He even used his visitor's cell phone to order hits on his former attorney and his girlfriend's would be paramour.

The investigation began with a U-Haul stopped for speeding in Illinois. The truck was carrying 329 pounds of weed. The driver and passenger told police they had been running 300-400 pounds of marijuana from Arizona to Omaha every three weeks for over a year. Dominoes continued to fall until Mr. Williams was arrested in Arizona walking around naked in a park. He gave the police a fake name and took off to Minnesota. Eventually Douglas County authorities served a warrant on Mr. Williams for a violation of his supervised release on a crack conviction.

Los federales wanted the names of Mr. Williams' drug runners and his other connections -- they needed someone on the inside. And who did they choose? Who did they think was the person who could best betray Mr. Williams' trust?

Omaha attorney Terry Haddock, who had been hired by Mr. Williams to defend one of his runners.

Terry Haddock sold his soul to the government to build a case against Mr. Williams. Mr. Williams claims that Terry Haddock was representing him.

“I would highly recommed this attorney. Best Money ever spent!” -- client review from Avvo.com

Why else would Mr. Williams trust Mr. Haddock with the secrets of his business? Why else would Mr. Williams ask him to launder money? Why else would he use Mr. Haddock's phone to arrange hits? Because he trusted Mr. Haddock. And why did he trust Mr. Haddock? Because he thought Mr. Haddock was representing him.

Talk about outsourcing your ethics.