Public Defense

Extraordinary misconduct leads to extraordinary relief

By Gideon

Absolutely stunning news today from the state Supreme Court: only one day after hearing oral arguments in State v. Patrick Lenarz, the highest court in Connecticut issued a summary order directing his immediate release from custody. It will issue a decision on his appellate claims later on.

Folks, I cannot stress how absolutely incredible this is. This, if you will allow me the superlative, is unprecedented. Typically, defendants appeal to the Supreme Court and raise all sorts of issues. Depending on who writes the majority opinion, it takes months or years for the court to rule on the claims. Here, the very next day, the court ordered this man’s release from prison.

So what were his claims on appeal? That the prosecutor engaged in extraordinary misconduct (I refuse to employ the current “impropriety”) by reading documents seized from Lenarz’s computer, which the prosecutor agreed were confidential and protected by the attorney-client privilege:

[Lenarz's attorney] Ferry argued that Lenarz was denied his Sixth Amendment right to counsel because the prosecutor in the case, Christopher Parakilas, read five documents that Lenarz had prepared to help his attorney in defending him. Those documents were on Lenarz’s computer, which police had seized.

Those documents, Ferry argued to the court, were protected by attorney-client privilege. Ferry argued at the trial that the case against Lenarz should have been dismissed because the prosecutor read the documents, even after discovering that they were covered by attorney-client privilege. The trial judge, Judge Leslie I. Olear, agreed that the documents were privileged but declined to dismiss the charges.

After hearing the arguments Thursday, the state Supreme Court ? in a highly unusual move ? ordered Lenarz’s immediate release on a promise to appear in court.

“That order by the Supreme Court directing Mr. Lenarz be released loudly suggests that it believes Mr. Lenarz was a victim of a serious Sixth Amendment violation by the office of the state’s attorney,” Ferry said. The documents “outlined our entire trial strategy, how we were going to attack the credibility of the accusers,” Ferry said.

The documents gave the prosecution an advantage of “knowing our every move at trial,” he said.

This is astounding hubris on the part of the prosecutor and misconduct (yeah, fuck “impropriety”) of the most intolerable kind. To knowingly read something so sacrosanct as communications between the defendant and his lawyer, made in preparation for trial suggest callous disregard for the Constitution and the very basic principles that ensure fair play in our system of justice.

If a defendant is unable to write candidly and share his thoughts and opinions with the one person who is preparing to defend him, then it puts the very system at risk:

On numerous occasions we have reaffirmed the importance of the attorney-client privilege and have recognized the “long-standing, strong public policy of protecting attorney-client communications.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. 48; see also Shew v. Freedom of Information Commission, 245 Conn. 149, 157 (1998) (discussing “well established legal principles governing 157*157 communications between attorney and client”). “In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 52. The privilege fosters “`full and frank communications between attorneys and their clients and thereby promote [s] the broader public interests in the observation of law and [the] administration of justice.’” Id., 52, quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

Olson v. Accessory Controls and Equipment Corporation, 254 Conn. 145, 156-7 (2000). I cannot even begin to fathom what lead the prosecutor to read these documents, knowing they were privileged communications. I’m glad the Connecticut Supreme Court sees it the same way.

Full post as published by A Public Defender on November 02, 2010 (boomark / email).