Posted on May 28, 2009 by Anthony Lake

Supreme Court Overrules Michigan v. Jackson and Presumption that Waivers of Right to Counsel After the Right to Counsel Has Been Invoked Are Invalid

In an opinion issued on Tuesday, Montejo v. Louisiana, --- S.Ct. ----, 2009 WL 1443049 (2009), the Supreme Court removed a layer of protection of criminal defendants against coercive and badgering police interrogations by overruling, Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986), in which the Court had held that “if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.”

The petitioner in Montejo was arrested in connection with a robbery and murder and waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), while being interrogated by police detectives. A preliminary hearing was then held in which the court ordered an indigent defender to represent the petitioner. After the hearing, two detectives visited the petitioner and requested that the petitioner lead them to the murder weapon. The detectives read the petitioner his Miranda rights, and the petitioner proceeded to go along with the detectives, writing an inculpatory letter of apology to the widow of the victim in the process. Only following this excursion did the petitioner meet his court-appointed attorney and consult with him. The State admitted the petitioner's letter of apology against him at trial, and the petitioner was convicted of first degree murder and sentenced to death.

The petitioner appealed, arguing that the State's admission of the letter was error pursuant to Jackson. The Louisiana Supreme Court held that Jackson is not triggered unless and until a defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. It held that because the court had appointed the petitioner counsel while the petitioner stood mute, the petitioner had not sufficiently asserted his right to counsel. The Courtaffirmed his conviction and the Supreme Court granted certiorari.

Justice Scalia, writing for the majority, observed that some States require an indigent defendant to affirmatively request counsel before an appointment is made, while other States automatically appoint counsel upon a finding of indigency. Justice Scalia recognized the problem that "Defendants in States that automatically appoint counsel would have no opportunity to invoke their rights and trigger Jackson, while those in other States, effectively instructed by the court to request counsel, would be lucky winners." The majority rejected the petitioner's position that, once a defendant is represented by counsel, police may not initiate any further interrogation.

The majority proceeded to overrule Jackson and its holding that waivers of a defendant's right to counsel after the right to counsel is asserted are presumed invalid. The Court noted that it had created the presumption in Jackson by making an analogy to a similar prophylactic rule which the Court had established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981), for the Fifth Amendment right to have counsel present at any custodial interrogation under Miranda. The majority held that where a defendant does not invoke his right to counsel, such as where a court appoints counsel in the absence of any request by the defendant,there is no initial election "that must be preserved through a prophylactic rule against later waivers." It noted that the benefits of the prophylactic rule of Jackson were outweighed by its costs in "hindering “society's compelling interest in finding, convicting, and punishing those who violate the law." The majority observed that, even without the rule of Jackson, defendants are still entitled to the protections of Miranda, Edwards and Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486 (1990). It held that "Jackson not only 'operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,' ... but also deters law enforcement officers from even trying to obtain voluntary confessions."

Justices Stevens, Souter, Ginsburg and Breyer all dissented.

 

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Posted on April 16, 2009 by Anthony Lake

Bankruptcy, Corporate Criminal Investigations and Waiver of the Attorney-Client Privilege

An excellent article from Legal Times, “Dead Companies Can Tell Tales,” examines how the attorney-client privilege in a corporate context survives the bankruptcy or receivership of the corporation. The article concludes that prosecutors possess considerable freedom to seek privileged information.

The article references the “Filip Memorandum,” which was a revision by Deputy AG Mark Filip to the “McNulty Memorandum” of 2006, which provides guidance to DOJ prosecutors in investigating and charging corporations (which dates back to 1999, when it was originally authored by then-Deputy AG Eric Holder and was known as the “Holder Memorandum”). The Filip Memorandum was the result of concerns over prosecutors’ extracting attorney-client privilege waivers from corporations and preventing corporations from paying officers’ and employees’ legal fees under threat of indictment. The Filip Memorandum sets forth DOJ policy in determining whether to indict a business entity, and the memorandum’s policies and factors to be considered are set forth in the United States Attorney’s Manual (USAM). In regard to the attorney-client privilege, USAM 9-28.710 asserts that “waiving the attorney-client and work product protections has never been a prerequisite under the Department's prosecution guidelines for a corporation to be viewed as cooperative.” The policy nevertheless states that “Everyone agrees that a corporation may freely waive its own privileges if it chooses to do so; indeed, such waivers occur routinely when corporations are victimized by their employees or others, conduct an internal investigation, and then disclose the details of the investigation to law enforcement officials in an effort to seek prosecution of the offenders.”

Therefore, while it is no longer DOJ policy to request waivers of the attorney-client privilege, a corporation may still voluntarily do so. The risk of such a “voluntary” waiver of the privilege may be increased when a corporation is in bankruptcy, and an independent trustee or receiver, or the successor management, are dealing with a criminal investigation and requests by the government, as well as their own investigation of potential criminal activity by the debtor corporation. The article cites the Supreme Court’s decision in CFTC v. Weintraub, 471 U.S. 343 (1985), in which the Court held that the trustee of a corporation in bankruptcy has the power to waive the corporation's attorney-client privilege with respect to pre-bankruptcy communications, id. at 354.

Consequently, the article advises attorneys representing officers or employees of corporations in bankruptcy to advise their clients of the risk that any privilege of their pre-bankruptcy communications to corporate counsel could be waived by the trustee or receiver and the communications disclosed to the government. There is also some question as to whether a bankrupt corporation implicates the Filip Memorandum or USAM 9-28.710 at all, since they do not mention bankrupt or dissolved corporation. The policies would also be inapplicable where the government intends to prosecute individuals instead of the corporation. Beyond the constraints of the Filip Memorandum, prosecutors are free to seek waivers of the privilege. Furthermore, trustees or receivers possess a duty to maximize recovery for corporate shareholders, and not to former officers or employees, and may be readily persuaded to give such waivers.

The authors note that Weintraub waivers have been used by receivers to waive the attorney-client privilege to order outside counsel for a corporation to produce its pre-litigation file, CFTC v. Standard Forex (E.D.N.Y. 1995), and to waive attorney-client and work product protection over the objection of a former corporation officer facing criminal charges, United States v. Shapiro (S.D.N.Y. 2007). The issue has also arisen in at least one proceeding in this Circuit, In re Pearlman, 381 B.R. 903 (Bkrtcy.M.D.Fla. 2007). The debtor in Pearlman and various corporations controlled by him filed for bankruptcy, and the trustee obtained a discovery order from the bankruptcy court and served subpoenas on several outside attorneys and law firms to produce documents. Id. at 905. Pearlman was also indicted by a grand jury in the Southern District of Florida. Id. at 906. Counsel produced some documents in response to the subpoenas, but asserted that other documents were protected by the attorney-client privilege. Id. at 907. The court held that documents relating to some of the entities were not subject to production unless the privilege was waived by the trustee. Id. The court continued to hold “[t]he privilege passed to, is controlled by, and may be waived by the Trustee to the extent an attorney-client privilege exists with respect to any of the Pearlman Entities.” Id. at 909 (citing Weintraub, at 358). It concluded that the documents and information were subject to turnover provided that the trustee waived the entities’ privilege. Id.

However, in regard to documents and information relating to counsel’s representation of Pearlman, the court stated that:

The issue of whether a bankruptcy trustee controls the attorney-client privilege as to an individual debtor has been addressed by various federal courts. The majority of courts employ a balancing test whereby the specific facts of a case are evaluated and the benefits of granting access to the privilege are balanced against the risk of harm to the debtor. The Court adopts the balancing test.

Id. at 907. It continued to observe that:

The Supreme Court did not address in Weintraub whether a bankruptcy trustee controls the attorney-privilege as to an individual debtor. Weintraub, 471 U.S. at 356, 105 S.Ct. 1986 (“But our holding today has no bearing on the problem of individual bankruptcy, which we have no reason to address in this case.”)

Id. at 910. It concluded that:

The majority of courts employ a balancing test whereby the specific facts of a case are evaluated and balanced, including the risk of harm to the debtor versus the benefit to the estate. Foster v. Hill (In re Foster), 188 F.3d 1259, 1268-69 (10th Cir.1999); In re Courtney, 372 B.R. 519, 521 (Bankr.M.D.Fla.2007); In re Bame, 251 B.R. 367, 377 (Bankr.D.Minn. 2000); In re Bazemore, 216 B.R. 1020, 1024 (Bankr.S.D.Ga.1998). The Court, based upon the weight of the case law and the facts and circumstances of this case, adopts the balancing test.

Id. This balancing test balances the harm to the individual debtor and to the attorney-client privilege with the trustee's need for information in light of the particular circumstances. Foster, at 1268.

Pearlman’s balancing test only appears to apply to former officers or employees who are also debtors in a bankruptcy proceeding. Non-debtor former officers or employees must beware of the risk that Weintraub waivers may be sought by the government and granted by the trustee or receiver, and that privileged information may be disclosed. The authors advise practitioners to gain an understanding of the substance of prior privileged communications which may be disclosed. Second, they caution counsel to be alert to any potential Weintraub waiver sought by the prosecution or trustee so that the defense can attempt to intervene and oppose the waiver, likely arguing that their client’s interest in the privilege outweighs any need of the trustee or the government for the waiver, as indicated by Pearlman. Given that a trustee or receiver is typically held to have a great need for any documents or information in carrying out his or her duties, this will likely be a losing proposition, but one worth trying nevertheless.

 

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Posted on March 26, 2008 by Anthony Lake

Medellin v. Texas: The Effect on International Law on Domestic Criminal Law and Procedure

            Defense counsel with foreign clients will not be pleased with the latest offering from the United States Supreme Court and its take on international law. José Ernesto Medellín, a Mexican national, was convicted and sentenced in a Texas state court for the capital murder of two girls. Fortunately, Mexico brought an action in the International Court of Justice (ICJ) in the Hague against the United States on behalf of Medellin’s and 51 other Mexican nationals in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judgment of Mar. 31) (Avena). The ICJ held that, based on violations of the Vienna Convention, the nationals were entitled to review and reconsideration of their convictions and sentences in state courts in the United States, regardless of whether the defendants had waived their rights to raise challenges under the Vienna Convention on Consular Relations (Vienna Convention or Convention) for failure to comply with generally-applicable state rules governing challenges to criminal convictions. President George W. Bush even showed his support for the international tribunal by issuing a Memorandum to the Attorney General in which he directed that the United States discharge its international obligations by having State courts give effect to Avena. Medellin did not raise any Vienna Convention claims prior to his conviction. After the state court dismissed Medellin’s petition for writ of habeas corpus to raise his Vienna Convention claims, the United States Supreme Court granted certiorari in the case of Medellin v. Texas.

            Chief Justice John Roberts, writing for the majority, recognized that the Vienna Convention, which had been ratified by the United States, guarantees that a person detained by a foreign country may require authorities of the detaining country to inform consular authorities of the detainee’s home country, and that the detainee may request assistance from the consul of his country. Furthermore, “Optional Protocol” of the Convention provides that disputes arising out of an interpretation or application of the Convention shall lie within the compulsory jurisdiction of the ICJ.

            The majority acknowledged that the ICJ’s decision in Avena constituted an international law obligation on the United States. However, it held that “not all international law obligations automatically constitute binding federal law enforceable in United States courts.” It noted that there was a distinction between treaties which automatically have effect as domestic law and those which do not and that treaties do not become domestic law “‘unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.’” (Citing Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (1st Cir. 2005)). The majority concluded that “[b]ecause none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists… the Avena judgment is not automatically binding domestic law.”

            The Court held that the Convention’s Optional Protocal was a “bare grant of jurisdiction,” which said nothing about the effect of ICJ decisions and did not require signatories to comply with ICJ judgments. It noted that the Convention itself merely represented a “commitment” by member nations to comply with an ICJ decision, and that there was no indication that Congress, in ratifying the United Nations Charter, ever intended to vest ICJ decisions with immediate legal effect in U.S. courts. Also, the fact that the ICJ was required to enforce its judgments through the U.N. Security Council, on which the United States possesses a veto, indicated that its decisions were not immediately and directly binding in the U.S. Finally, the majority held that the President could not convert a non-self-executing treaty into a self-executing one by merely issuing a Memorandum. Justices Breyer, Souter and Ginsburg, naturally, dissented.
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