Deputy swipes document from defense counsel

Amazing video.  Stories here and here (with a nod to Reason blog).  (If this doesn't get Monroe's blood boiling, I don't know what will.)  At the subsequent hearing the deputy could not explain his conduct except to suggest that he seized the document because it was proof of a crime.  But the judge would not hold the deputy in contempt unless the deputy could defend himself by discussing what he saw on the document -- and because the document was privileged, the deputy was forbidden to discuss the contents unless the defendant waived the privilege.  The defendant wouldn't waive, and so the judge didn't hold the deputy in contempt.  (If I were the judge I would have!)

Comments

[Steven Lubet]

The deputy shouldn't have been rifling through defense counsel's papers in the first place, so it hard to see how the contents could have any bearing on contempt.

[Judith]

I don't see how the behavior was any different whether it was her shopping list or a letter from the defendant. This clearly violates all sorts of rules, not to mention criminal statutes. The fact that the judge was telling the lawyer to calm down, and didn't charge the deputy tells me a lot about "justice" in Maricopa County, Arizona.

[Steven Lubet]

Just imagine what would have happened if a defense investigator had been looking at the prosecutor's papers. The judge would have had a fit, and properly so.

Interesting, too, that the deputy doesn't appear to have been disciplined by his boss -- the infamous Joe Arpaio.

[Monty]

From my take on the video, the deputy looks down, reads for a bit, then pulls something out a bit further to examine it etc...

To play devils advocate, say he looked down and in plain site saw a document with a header of PLAN TO BLOW UP COUNTY COURTHOUSE. And then decided to pull it out a bit further to see if it really was such a plan, and seeing that it was, he took the document to investigate. Supposing my ridiculous hypothetical were what happened, no one would condemn the deputy. However to allow the deputy to defend his decision to take the priviledged document would require the deputy disclose what was in it, (or atleast what he read prior to taking it) which itself would be a violation of priviledge. He probably shouldn't have done what he did, he probably deserves to be punished, but without knowing what the document actually said, its really is all speculative.

Really what should happen is there should be a partial waving of priviledge for the purpose of a contempt proceding, but prohibit any secondary use of the document, I have no idea if state law would allow such an approach though.

[Reader]

As noted in the "Heat City" article linked to above, "an officer can seize evidence or make an arrest if he sees a crime taking place." In order to maintain security, the officer may be in the habit of keeping a close eye on surroundings, looking for suspicious behavior of others. The "Heat City" artcile notes that the defendant allegedly was a member of an organization that snuck contraband into court. Knowing this, or from other factors, the deputy may have been concerned about security and felt the need to look at the papers on the table. Once he saw them, he realized they weren't relevant to any security issue. Any type of officer will routinely make these quick judgment calls, and in most cases, they don't involve significant controversy. For example, here, if the materials were not privileged, there would not have been much controversy.

Only in retrospect did it become clear to him that doing so was unnecessary, as the paperwork had already been inspected by another security officer upon the defendant's entry into the building. Sometimes decisions that can appear rational at the time, based on what a person knew or perceived then, can appear irrational in hindsight. This situation often occurs when individuals have the opportunity to spend large amounts of time scrutinizing what were quick decisions.

While the officer should not have read the papers, I think it is unfair to hold him in criminal contempt, or to wonder why his after-the-fact explanations don't seem to make much sense. In any event, the materials would still be privileged.

[Don Lundberg]

Very similar Indiana case where, instead of a deputy sheriff, the papers were purloined by a prosecutor and her deputy. Matter of Winkler and Goode, http://www.in.gov/judiciary/opinions/pdf/09130501per.pdf.

[Alice Woolley]

With respect to Monty's post, I don't see how it matters what the papers said. The documents were in the Court house. If there was a concern about the documents, the legal process was readily available to seek to obtain or review them. If the deputy sheriff saw something of concern, the process should have been followed, and it obviously was not. It is that failure to observe the process which, I would argue, makes this contempt, with the result that the privileged nature of the documents, and the refusal to waive privilege is a cop out. And as one of the bloggers on the site linked by John observed, there is something extraordinarily offensive in having an offense related to the improper violation of privilege only prosecutable if the individual waives privilege.

[john steele]

Monty and others,

The papers had been pre-cleared before the deputy swiped them. Second, because the lawyer's folder said nothing suspicious on the outside, there was no cause to go rummaging through them. Third, the deputy himself couldn't sustain that argument. He had all the incentive in the world, and the best vantage point of anyone in the world, to claim that he swiped the document because it showed some horrible, imminent danger, but he couldn't do so. Fourth, most jurisdictions have a means for law enforcement to rummage through a lawyer's papers when there is good reason to do so, and the deputy didn't do that. He was literally sneaking behind the lawyer's back. Shame on the judge for not stepping in more forcefully.

[mahtso]

"The papers had been pre-cleared before the deputy swiped them." How do you know this? All the accounts that I have read say the opposite: that the papers had not been screened and the Deputy was checking for contraband.

Also, for what it is worth, in the last couple of weeks (when this incident occurred) in Maricopa County one defense lawyer has pleaded guilty to smuggling contraband to inmates and a second has been arrested for smuggling drugs.

"Just imagine what would have happened if a defense investigator had been looking at the prosecutor's papers. The judge would have had a fit, and properly so." Is this Deputy an investigator or a guard/detention officer?

[mahtso]

Sorry! I see in the Heat City link that the Officer now admits that the papers were screened. Note to self: read then type!

[Madalyn Jenkins]

He committed a crime. He had no business going over to the defense table. There was nothing that had not previously been screened prior to entering the courthouse. He should be fired; also the 2nd deputy. They obviously made copies of it in order to undermine the defense. This is an outrage, and if the judge had any moral guts, she would have halted what was going on and insisted the deputies come forward and admit what they had done. I am so upset over this. No wonder so many convictions are overturned due to judicial misconduct.
This needs to stop!
Madalyn

[Wes]

I'm no expert in AZ law, but I don't see how the deputy could hide behind the defendant's refusal to waive the privilege. Arizona Revised Statutes §13-4062 "Anti-marital fact privilege; other privileges" provides: "A person shall not be examined as a witness in the following cases...2. An attorney, without consent of the attorney's client, as to any communication made by the client to the attorney, or the attorney's advice given in the course of professional employment."

The section provides no privilege on behalf of the client for anyone other than his attorney. I suppose there could be another privilege somewhere in the AZ statutes, but I sincerely doubt that any privilege could apply to the deputy in this case.

Also, if the Deputy purloined the document due to some imminent or threatened crime contained therein, wouldn't that crime destroy the privilege and thus any power of the client to prevent the deputy's disclosure of its contents?

I simply see no way for the judge to let the deputy to hide behind privilege. What a travesty.

[mahtso]

Like most stories in the news and on the blogs, to me, it appears that the facts are not clear. Since I posted my two comments above, I have read other news accounts that show the documents had not been screened. Moreover, although the author of the heatcity link (the source for the assertion that these were screened) wrote that the Officer made this admission in court (and he, the author, was present at the proceedings), other news accounts show that these proceedings were closed.

The Officer asserts that he thought the documents were evidence of a crime. I don’t have the legal expertise to form a rational opinion about whether that could be a viable defense or justification. And, I don't believe I have sufficient knowledge of the facts to say whether or not the Officer’s assertion is plausible. But I am amazed at the number of comments and blog posts that are effectively saying “this Officer must be guilty and he should not be afforded due process.” And, some of these comments and posts are from sources that typically (in my opinion) advocate for defendant-rights. I guess some defendants are more equal than others.

[CC]

Looks real fishy it violated a lot of laws,but as usual the law protects some of its own. We can clearly see how wrong the Deputy, I mean Deptuties were in going through the Lawyers private folders on her table. They had no right and the Judge should have been asking questions when she saw them moving so obvious in here courtroom. What was the judge doing cleaning her nails or taking a nap to where she did not think to ask her deputies what is going on, is there something she needs to know about at that desk. No, no questions and someone should have spoke up and said something, look how long that camera was on them so the camera man must have felt something was unusually wrong or else it would not have been on them so long.
Court of Law do right proscecute your own, because clearly they were wrong being in the Lawyers personal belongings, especially being that evetything was cleared before entering.