Since the 1990s and the rise of the Internet and social media, each one of us has become increasingly aware of the risks and dangers of unwanted posts and how fast a “discreet” image can go viral. The development and evolution of the Internet has brought with it a host of novel legal issues, from the worldwide threat of cyber bullying to disgruntled employee posts, a flippant press of a button can mean tremendous consequences and legal challenges for many involved parties. Combine the viral nature of an image with the fuel of raw emotions over a breakup with a spouse or former lover and it is a recipe for disaster!
In a case that is considered the first of its kind, a website operator was found criminally liable for identity theft and extortion by a California state jury last week. The defendant operator Kevin Bollaert owned the website YouGotPosted.com, which permitted jilted lovers to submit nude pictures of their exes in order to publicly humiliate them. The site would identify the victim by name and also include the victim’s phone number next to the photo. On a sister website set up by the same operator, ChangeMyReputation.com, the victims were asked to pay up to $350 in order to have the photo removed. Between December 2012 and September 2013, less than one year, the site put up over 10,000 posts.
“Revenge porn” sites like this one permit the online posting of nude and sexual photos of people, by its nature mostly women, whose exes post the images to try to humiliate them. Images can also be easily picked up by other websites, so even if a person succeeds in getting images removed from one site, it may be difficult or impossible to remove them completely from the Internet. So, of course this sounds like it would clearly be illegal? Not so. Perhaps surprisingly, most states do not make it a crime to post people’s photos or personal information online without their permission. Many revenge porn sites have popped up in recent years and have brought national attention, as states scramble to enact laws or amendments to existing laws to help the defenseless victims. With the quick rise of revenge porn, states have often used laws already in existence to prosecute those accused of committing revenge porn, such as laws against disseminating pornography or laws protecting privacy. Even so, many current laws regarding invasion of privacy, harassment or disorderly conduct were enacted long before revenge porn was contemplated or became a rising concern. Oftentimes, a loophole makes it difficult to prosecute because the victims don’t own the photographs in which they appear or have voluntarily disseminated the photo without the intention of it going viral. It is for this reason that in the past few years, sixteen states have enacted criminal revenge porn laws, and there is legislation pending in over twenty additional states.
The case against Bollaert was the first conviction following California’s revenge porn bill, signed into law in October 2013 by Governor Jerry Brown. The law amends the state’s disorderly conduct law and makes it a crime to post nude photos of another online without permission and with intent to publicly shame the subject. However, this law as first drafted did not include photos taken as “selfies” but only those taken by another party. To remedy this, the law was subsequently amended, which will take effect in July of this year. Unlike other revenge porn sites, though, YouGotPosted.com permitted users to share personally identifying information about the photo’s subject. Bollaert was therefore prosecuted for identify theft and extortion, not under the revenge porn law. Bollaert faces up to 20 years in state prison when he is sentenced on April 3.
So, is this case unique due to the egregious nature of the facts, or should website operators beware of government’s tightened grip on website content? I think the answer is both. The facts are egregious but far from uncommon and increasingly more frequent. As devious players contemplate use of the Internet in unprecedented ways, state laws are feverishly attempting to catch up to evolving technology. While many object to such laws based on First Amendment free speech rights, it seems that governments are in fact taking stricter control over website content, with new laws and amendments pending in almost half the states in order to close the loopholes currently existing on this issue. Even so, there is a lesson to be learned to prevent humiliation and the time and expense of litigation – for all of those who leave their smart phones next to their beds, think twice before undressing and snapping!
At the very core of judicial independence is the notion that courts and judges decide matters in accordance with the evidence and legal precedent, independent from political power or outside controls. The question of whether a bipartisan and independent judiciary is still alive and well in New Jersey has been called into question recently, as Governor Christie has been accused of packing the state supreme court with only those judges with whom he asserts his influence and will rule his way.
Since the New Jersey state constitution was ratified in 1947, every sitting state supreme court justice has been re-nominated for tenure by the governor after his or her initial seven-year term, regardless of whether the governor agreed with the justice’s rulings. . . until now. The seat of Justice John Wallace has been vacant since May 2010, after Christie failed to grant him tenure following his initial seven-year term. There is fear that Christie has created a climate in which fair and impartial justices fear for their futures if he doesn’t like a ruling. Some criminal defense lawyers believe that a signal is being unfairly sent to judges that they have to align their decisions with those of Governor Christie in order to seek reappointment, which may be detrimental to their clients’ interests, given that Christie has promised to make New Jersey courts more conservative.
The New Jersey State Bar Association created a task force earlier this year to study this issue of New Jersey judicial independence with a goal of producing a report that will contain recommendations for preserving the independence of the New Jersey judiciary. The task force held four hearings over the past several months and also accepted written comments during the same time period, all on the subject of judicial independence in New Jersey. It is anticipated that the Task Force will submit its report in the near future.
In the meantime, as a result of this standoff between Governor Christie, a Republican governor looking to nominate judges who will decide his way, and a democratic state Senate, which must confirm all of the Governor’s picks for the bench, a political stalemate has been created. Individual state senators also have the power to block appointments in their home counties – for any reason and without the need to give a reason, although several experts believe that this unwritten custom of “senatorial courtesy” should be abolished. Many blame this practice in part for holding up reasonable negotiations and preventing entire packages of judges from getting through to fill vacancies in the courts. Over the past six decades, senatorial courtesy has become a tool that can and has been used as a bargaining chip in bitter partisan battles.
This fall, the number of sitting judges in New Jersey hit the lowest point in almost 15 years, with rising case backlogs. Several counties in New Jersey face judicial vacancy rates greater than 20%. As a result, parties can sit for months in legal logjam, due to longer wait times and judges who are stretched beyond their capabilities. This can be particularly difficult for people seeking divorce or custody settlements or business disputes or criminal complaints. In August, Governor Christie and the state Senate reached a deal to fill eight such vacancies, which left a whopping 44 judicial vacancies or roughly 10% of the judicial seats in the state.
To help reduce the number of open seats and to keep the case calendar moving, court officials have called back retired judges, as it is a much easier process to call back retirees than the lengthy and cumbersome process of appointing new judges. As of November 6, there were 77 judges in Superior courts who reside on the bench past the mandatory retirement age of 70, alongside 392 active Superior Court judges. However, this practice of calling back retired judges is being challenged before the Supreme Court of New Jersey in State v. Buckner.
The Appellant Buckner was convicted of armed robbery and assault in 2012 and is currently serving a nine-year sentence. He argues that he is entitled to a new trial because the judge who convicted him retired in 2008 at the age of 70 but was recalled the same year. If he is successful in his challenge to judicial recall of judges past mandatory retirement age, the vacancy problem could become much, much worse. On the flip side, a constitutional amendment has been introduced in the New Jersey legislature to raise the mandatory retirement age from 70 to 75, which would help to alleviate some of the need to recall judges.
Some would say that New Jersey courts are at a crisis point. Partisan bickering and stubbornness must give way to action for the benefit of the millions of New Jerseyans who use the New Jersey court system each year.
Fact: the United States incarcerates its citizens at the highest rate in the developed world. Indeed—save one small chain of islands, whose entire population is just a fraction of our prison population—the United States’ incarceration rate is the highest on the planet. And nearly half of our approximately 1.75 million inmates are serving time for nonviolent and/or drug-related offenses.
That is not OK. It is especially disgraceful in instances where poverty is the only factor standing between incarceration and freedom; nowhere is that connection more salient than in the realm of pretrial detention. It seems, however, there may be a light at the end of the tunnel: bail reform—federal and state.
The federal corrections policies—those that prevailed since the birth of the Nixon era’s War on Drugs—are beginning to be dismantled. Of course, that’s hardly surprising, given Attorney General Holder’s unabashed stance on over-incarceration: “It’s clear – as we come together today – that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason. It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges. And it is well past time to implement common sense changes that will foster safer communities from coast to coast.” But Holder is on his way out, and we cannot know whether his successor(s) will carry his torch forward.
As for the states, this election season a number of them put their approaches to victimless and/or nonviolent crime on the ballot. For example, voters in three states and 56 municipalities (including Washington, D.C.) had an opportunity to weigh in on how/where marijuana use fits into our society. The result: the majority of voters, across party lines, think it’s time for a change. Eight more states have proposed legalization ballot initiatives for 2016.
The decriminalization of low-level drug offences will, undoubtedly, have tangible effects on incarceration rates. But what of those arrested for the plethora of nonviolent—often victimless— crimes that remain on the books? At least one state is taking action…
In New Jersey—a state where just over 5,000 inmates (or 38.5% of the total jail population) are there simply because they are too poor to afford bail—the state legislature set out to address that problem with a companion bill aimed at reducing the prevalence of pre-trial detention. With its first step, the NJ legislature passed a bill requiring that each defendant be evaluated to determine his/her propensity for recidivism during release, witness intimidation, and flight: low-risk, non-violent defendants shall be released on their own recognizance; those posing a higher-risk will be released subject to certain conditions (i.e., curfews, travel restrictions, and/or electronic monitoring); those posing the greatest risk may be denied bail; and all detained defendants will be entitled to a speedy trial protection. For its second, the legislature voted unanimously to poll the people—via ballot measure—on a constitutional amendment to allow judicial discretion in the pretrial detention of those most dangerous defendants. The Question: “Do you approve amending the Constitution to allow a court to order pretrial detention of a person in a criminal case?” The Answer: Yes. Now, with this tandem effort by lawmakers and voters, the bail reform package is in full effect.
For those whose concern for just policy overcomes the allure of partisan politics, state and local ballot initiatives can offer a keen lens into the hearts and minds of the populace. Although we are reluctant to read too much into the tealeaves (that has pitfalls all its own…), it seems—underneath the partisan gridlock—a sea change may be brewing. Whether this burgeoning trend will bear sustainable fruit—that remains to be seen. In the meantime, we will continue to be encouraged by small wins in the fight for an equitable justice system where socioeconomic status is not fate determinative. Stay tuned.
Severely ill patients in New York State are celebrating Gov. Andrew Cuomo’s signature of a bill that legalized medical marijuana in New York for many severely ill patients. As noted by Assembly Speaker Silver in his remarks, “With this agreement, we are assuring access to that much-needed relief while ensuring the tightest possible regulation and state supervision.” Indeed, the New York bill does contain many restrictions on the use of medical marijuana, which were necessary in order to gain the agreement of Governor Cuomo for the passage of the bill.
For instance, the bill’s coverage is limited to “certified patients” that submit an application and receive their “registry identification card.” The requirements are extensive and include: patients are residents of New York, are receiving care and treatment in New York, and have a “serious condition”, which is limited to “severe debilitating or life-threatening conditions” like cancer, ALS, Parkinson’s disease, HIV/AIDS, Lou Gehrig’s disease, Huntington’s disease, epilepsy, neuropathic diseases, and multiple sclerosis or as determined by the commissioner of public health. A certified patient is also required to “possess his or her registry identification card at all times when in immediate possession of marijuana.”
Additionally, the final bill included a compromise provision, again on Gov. Cuomo’s insistence, that prohibits the possession of medical marijuana “if it is smoked, consumed, vaporized, or grown in a public place.” Instead, patients will take medical marijuana through an oil-based vaporizer, edible, or otherwise ingest the drug like any other pill.
Further, medical marijuana can only be administered by “practitioners”- i.e. doctors who are registered with the NYS Health Department to issue a patient certification, and, “no person may be a designated caregiver for more than five certified patients at one time.”
There are also restrictions on the manufacturers. Medical marijuana can only be sold by a “registered organization” that manufactures and dispenses in “an indoor, enclosed, secure facility located in New York state.” In addition to future regulations to be issued by the commissioner, a registered organization must possess “good moral character”, “sufficient land, buildings, … and equipment to properly carry on the activity described in the application”, or, post a $2M bond. Interestingly, the per dose price is also set by the commissioner so that this enterprise may not become some profit-making engine.
As a necessary assurance, the bill provides that certified patients, practitioners, and registered organizations are not subject to civil, criminal, or disciplinary proceedings because of their practices in accordance with the bill.
Finally, there is a seven year sunset provision in the bill, which essentially means the bill would need to be reauthorized, meaning that if it is not, medical marijuana will no longer be legal. The bill also contains a provision that authorizes the governor to terminate the medical marijuana program at any time if it is deemed to pose a public safety issue.
Despite these restrictions, Governor Cuomo stated: “Medical marijuana has the capacity to do a lot of good for a lot of people.” We wholeheartedly concur and feel there is no more appropriate ending than with the words of Assembly Speaker Silver: “This is a great day for New Yorkers.”
 Note: The New York bill refers to “marihuana”, but we have used the commonly known “marijuana” throughout for ease of reading.
Recently the Massachusetts Supreme Judicial Court ruled that under certain circumstances, a court may compel a criminal defendant to provide the password to encrypted digital evidence without violating the defendant’s constitutional rights. This is an increasingly prevalent issue that has divided courts across the country and may be presented to the United States Supreme Court for review soon.
Leon Gelfgatt was indicted in 2010 for allegedly operating a mortgage fraud scheme that fraudulently collected more than $13 million. During the investigation, Massachusetts state troopers seized four computers, all of which were protected by encryption software that Gelfgatt refused to remove. Lawyers for the Commonwealth of Massachusetts filed a motion in Superior Court asking the court to compel Gelfgatt to enter the password for his encryption software so that law enforcement could review the contents. The Superior Court denied the motion, stating that the Commonwealth was asking for the defendant’s assistance in accessing potentially incriminating evidence.
In a 5-2 ruling, the Massachusetts Supreme Court reversed the lower court ruling and held that police could compel Gelfgatt to decrypt his files, because he told investigators that the computer belonged to him and he had the encryption key. The majority opinion reasoned that Gelfgatt’s disclosure to investigators that he had the password to access the encrypted materials was sufficient to satisfy the “foregone conclusion” exception to the Fifth Amendment protection against self-incrimination. The court did not specify if Gelfgatt would have been compelled to decrypt the computers if he did not tell law enforcement that he owned the computers and had the ability to decrypt them, which may limit the reach of this opinion.
In a strong dissenting opinion, two justices found compelling a criminal defendant to decrypt the files is the functional equivalent to forced self-incrimination.
After the decision, one of Gelfgatt’s lawyers indicated that they planned to appeal the decision to the U.S. Supreme Court, which has not yet considered the issue that has divided jurisdictions across the country. In 2012, the U.S. Court of Appeals for the Eleventh Circuit held that a man under criminal investigation could not be compelled to decrypt his computer hard drives for the government without a showing by the government of specific knowledge about the contents of the hard drive, an opinion referred to by the dissenting opinion in this case.
In a time when law enforcement is increasingly relying on digital evidence in building cases against criminal defendants, issues regarding encryption and password protected materials will continue to arise. We hope the Supreme Court will grant an appeal and clarify that law enforcement cannot compel criminal defendants to decrypt files without violating the Fifth Amendment right against self-incrimination.
Last month police raided the home of an Illinois man who created a parody Twitter account of his city’s mayor. No charges were brought against the man because the prosecutor determined that no crime had been committed, however the man’s roommate has been indicted for possession of marijuana that was found during the overzealous raid of their residence.
Jon Daniel created the Twitter account @peoriamayor that mocked Peoria, Illinois, Mayor Jim Ardis. The Twitter account originally included a photo of Ardis, his official email address, and a brief biography. Later, the account explicitly stated that it was a parody account.
The Peoria Police Department submitted search warrants to Twitter, Google and Comcast in order to determine who was behind the Twitter account. Using the information obtained from those warrants to investigate a potential misdemeanor false personation offense, the police obtained a warrant to search Daniel’s home. During the raid police seized several computers, phones, and a bag containing a “green leafy substance.”
The Peoria County State’s Attorney’s office later concluded that they could not bring charges against Daniel for false personation because the offense could not be committed over the Internet. The false personation statute at issue in this case is a new Illinois law that went into effect earlier this year. The law makes it a misdemeanor offense punishable by up to one year in prison when a person, “knowingly and falsely represents himself or herself to be . . . a public officer or a public employee or an official or employee of the federal government.” The State’s Attorney’s Office has defended the decision of the police to obtain a search warrant stating that the police acted in good faith believing that they had probable cause to believe that a crime had been committed.
The American Civil Liberties Union of Illinois has said that it anticipates bringing litigation against the city of Peoria over the police raid on Daniel’s house.
Daniel’s roommate, Jacob Elliot, was charged with felony marijuana possession as a result of marijuana that police found during the raid of their home. Elliot spent two days in jail before he was able to make bail, and was also suspended from his job. Despite the police being misguided in their belief that Daniel had committed a crime which served as the basis of the warrant that led to the discovery of the marijuana, the Peoria County State’s Attorney’s Office is moving forward with charges against Elliot. Elliot was indicted last week on two charges of marijuana possession, including one felony charge.
Public officials have long been the target of parody, and social media has made it even more prevalent. If anything, this is an issue that could have been resolved civilly, though given the high standard for a public official to bring forth a defamation claim that avenue would most likely have been unsuccessful. More importantly, valuable police resources were wasted at the behest of a public official who was the subject of parody and this could have a potentially chilling effect on free speech. Statutes like the one responsible in this case are unnecessary and lead to the encroachment of an individual’s First Amendment rights.
On April 28, 2014, Ifrah Law attorneys Jeff Hamlin and Casselle Smith attended a symposium on incarceration presented by The Johns Hopkins University and its Urban Health Institute. The day–long program focused on adverse impacts of mass incarceration and potential strategies for mitigating them and reversing trends toward continued prison growth. Throughout the day, panels comprised of medical professionals, sociologists, legal scholars, and ex–offenders took the stage to address issues bearing on their areas of expertise.
Panelists discussed the effects of over–incarceration on individual liberty, family cohesion, and economic inequality, among other things. Many speakers emphasized the critical importance of upstream intervention. To this point, House Representative Elijah Cummings (D-Md) challenged communities to provide children with opportunities in sports, scouts, band, and other activities that can offer a positive sense of belonging. Others emphasized the value of post-incarceration solutions, including decarceration, education, and re–entry assistance.
Much of the afternoon discussion revolved around underreported effects of incarceration, including the lifelong consequences of a felony record. Too often, criminal defendants serve their time only to face a new set of challenges upon their release. Ex–offenders typically lack meaningful options for lawful employment outside of prison. The structural barriers to prosperity erected in the aftermath of incarceration can be as confounding as the time served—especially for those stationed on the lower rungs of socioeconomic stratification. This lack of opportunity is a catalyst for recidivism and ends up perpetuating the cycle of crime.
In his keynote address, Rep Elijah Cummings lamented that the real sentence is not the incarceration, but the criminal record that follows you until you die. The day after Cummings’ address, the Baltimore City Council passed legislation to address that problem. The “Ban the Box” bill—named for the criminal history checkbox that has become commonplace on job applications—makes it a crime for private businesses (with at least 10 employees) to “require an applicant to disclose or reveal whether he or she has a criminal record” before a conditional job offer has been made. The bill has teeth. Failure to comply is a misdemeanor violation that can result in fines up to $500 and up to ninety days in jail.
According to local reports, Baltimore Mayor Stephanie Rawlings-Blake strongly supports the bill. It will take effect 90 days after she signs it into law. The next test will be effective implementation and enforcement to ensure its success. We will continue to monitor its evolution and report on major developments.
The Urban Health Institute plans to upload video clips of the panel discussions and speeches. Video clips of panel discussions and speeches can be viewed at the Urban Health Institute’s YouTube channel.
Today, in a closely watched case in Illinois, a federal court dismissed a lawsuit brought under the Illinois Loss Recovery Act (ILRA) against daily fantasy sports site FanDuel, Inc. and daily fantasy sports player Patrick Kaiser, finding that the plaintiff lacked subject matter jurisdiction to bring the suit. This is one of several lawsuits that have been brought in Illinois courts against daily fantasy sports companies and individual winners.
If a person has lost more than $50 gambling, the ILRA, like a number of state loss recovery acts, allows that person who lost money or something of value to sue the winner to recover the money that was lost. The ILRA also provides that if a suit is not brought by the loser within six months, “any person” may bring an action against the winner and is entitled to recover three times the amount of money lost gambling. The plaintiff in this case, Christopher Langone, is that “any person” who brought the suit against Patrick Kaiser and FanDuel.
The complaint alleged that Kaiser won several hundred thousand dollars playing on daily fantasy sports sites including FanDuel.
The court dismissed the complaint because it lacked subject matter jurisdiction due to insufficient allegations in the complaint. The court noted that there was not even a bare assertion that there was a sufficient amount of money lost for a federal court to have the jurisdiction to hear the case. The court also noted that the complaint failed to identify a specific loser who lost a certain amount and failed to bring a claim as required under the ILRA.
A very interesting point in the decision is that the court held that FanDuel was not a “winner” in the context of the Illinois Loss Recovery Act. The plaintiff had alleged that the defendants were winners because they take a commission from the entry fees paid by participants in the games, but the court rejected that argument. The court noted that, “FanDuel does not place any ‘wagers’ with particular participants by which it could lose money based on the happening of a future events (i.e., the performance of certain athletes), but merely provides a forum for the participants to engage each other in fantasy sports games.”
The plaintiff alleged in the complaint that daily fantasy sports games are not a game of skill, but instead “a form of ‘exotic’ sports wagering subject to change.” The court in this case did not address the issue because it did not have to after it found that there was a lack of subject matter jurisdiction.
Although the court did not address all of the issues relevant to the daily fantasy sports industry in the case, this decision is a huge win for the industry. Loss recovery act cases will be harder to bring against daily fantasy sports companies that are not assuming risk in their games. Daily fantasy sports continue to grow rapidly and today’s decision helps to partially remove one roadblock to its growth.
In a recent opinion, the US Court of Appeals for the 6th Circuit addressed whether it was constitutionally reasonable for police to use a doctor – in this case, a doctor “who is known to conduct unconsented intrusive procedures when suspects are presented by the police” – to forcibly recover drugs from a man’s rectum. Judge Julia Smith Gibbons’ dissent notwithstanding, the 6th Circuit found that it was not reasonable, opining that the doctor’s behavior “shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process.”
The case, United States v. Felix Booker, came to the appeals court from the Eastern District of Tennessee. It began just before noon on August 12, 2010, when K-9 officer Daniel Steakley pulled Booker over for expired plates. The stop quickly escalated into a drug search. Steakley had arrested Booker earlier the previous year. Although Steakley’s drug-sniffing dog and a physical patdown yielded less than a gram of marijuana, Steakley called for backup and immediately arrested Booker for felony possession of marijuana. Tennessee law designates anything less than 14.175 grams a misdemeanor, worthy of only a citation.
Apparently the arrest was based on the officer’s suspicion that Booker was hiding contraband on his person. According to the officers, Booker fidgeted with the back of his pants during the traffic stop and at the police station following his arrest. They subjected Booker to an even more intrusive patdown in the interrogation room and to a strip search at the detention facility. No contraband was retrieved from either, but the officers weren’t done with Booker. They transported him – naked, shackled, and covered only in a blanket – to a local emergency room. There they presented him Dr. Michael LaPaglia, the attending physician.
LaPaglia told Booker that he needed to examine his rectum and extract any items found there. Booker refused. LaPaglia informed Booker that he had little choice in the matter, injected Booker with muscle relaxants and probed his rectum, manually. When that search failed to produce any contraband, LaPaglia ordered general anesthesia and had Booker intubated for nearly an hour. LaPaglia then paralyzed Booker and successfully extracted what previous probes had failed to retrieve, five ounces of crack cocaine.
This was the third time in three years that officers from the sheriff’s department had sought LaPaglia’s assistance in extracting evidence from a suspect. This time, however, Booker appealed his conviction and the 6th Circuit reversed — on the grounds that LaPaglia in conjunction with the Oak Ridge Sheriff’s department had violated Fourth Amendment protections against illegal search and seizure.
After addressing why the doctor’s conduct was attributable to the police, the Court examined the reasonableness of the search by weighing the following three factors: (1) the extent to which the procedure may threaten the safety or health of the individual, (2) the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity, and (3) the community’s interest in fairly and accurately determining guilt or innocence. In its analysis, the court highlighted the doctor’s failure to employ the less intrusive means used by U.S. Customs and Border Protection: an x-ray to confirm the presence of contraband, monitored bowel, and only engaging in an involuntary body cavity search after obtaining a court order.
The line between zealous police work and the violation of civil liberties can be fine. In Booker’s case, however, that line was egregiously and recklessly crossed with the help of a doctor, all too willing to set aside his oath: “First, do no harm.”
A recent indictment in a state court in La Plata County, Colorado, has ruffled feathers in the defense bar. The accused was one of our own, criminal defense attorney Brian Schowalter. The charge was based on Schowalter’s refusal to turn over evidence he ostensibly held for a client. The evidence, an original letter, was apparently relevant to a homicide investigation involving the attorney’s client (though it appears that this material was not protected by attorney-client privilege).
This is the kind of scenario that keeps defense lawyers awake at night: might you someday face criminal charges for aggressively protecting the interests of your client? So when Schowalter appeared in court to be formally advised of the felony charge against him, it was not too surprising that 10 criminal defense lawyers sat behind him in an apparent show of solidarity, and to signal to prosecutors that they will not buckle easily to pressure.
While few facts about the matter have been publicized, the central question for many is why would the prosecutor choose such a drastic approach?
The indictment charges Schowalter with unlawfully tampering with physical evidence in a homicide investigation. The prosecutor in the matter argues that he used every means available to obtain the evidence. (It would be nice to know exactly what procedural steps the prosecutor undertook before unleashing the proverbial nuclear bomb.) When the prosecutor subpoenaed the letter, Schowalter asserted his Fifth Amendment rights.
It is not clear from the facts currently available, but it is possible that Schowalter’s actions would support a disciplinary proceeding for potential ethics violations. Colorado Rules of Professional Conduct provide that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully . . . conceal a document or other material having potential evidentiary value.” So why didn’t the prosecutor report Schowalter’s alleged misconduct to the Colorado bar? That would be a more typical – and arguably more appropriate – response to potential issues of professional misconduct.
Did the prosecutor take such a heavy-handed approach because of Schowalter’s decision to assert his Fifth Amendment rights? It seems a bit unusual for a defense attorney to plead the Fifth in response to a demand for client documents. Schowalter’s response implies an admission that his previous action of withholding the letter could lead to more serious charges, an action that may have invited an already-irritated prosecutor to pursue criminal charges rather than a state bar action.
The lesson from this case may be: if you believe that client documents in your possession are legally protectable, fight vigorously by employing the procedural mechanisms available (e.g., a motion to quash). But don’t invite a bigger battle through obstinacy. Of course, if the defense bar continues to hold its line in the matter, there may be a lesson or two for the prosecutor, starting with a road map to a more appropriate legal action – based on ethics sanctions as opposed to criminal penalties.