Court of Appeals: Div. III – Dismissal of Charges of Child Molestation Upheld Due to Violation of Attorney-Client Privilege
This is another instance where the State’s handling of a case let an alleged child molester off the hook. In my previous article, the State let a convicted child molester receive about half the prison sentence he should have received under the law. (See Even Though Sentencing Incorrect, Child Rapist Will Be Released Earlier Than Statute Requires; June 15, 2010). In Perrow, the State bumbled the case at the beginning rather in than in the end, as they did in Hudgens.
In October 2007, Detective Sloan began investigating Perrow for alleged sexual abuse of his daughter, A.P. Sloan assisted A.P. in obtaining a protection order against her father on November 13th. On November 14th Sloan contacted Perrow and informed him of A.P.’s allegations. Sloan then prepared an affidavit for a search warrant.
Perrow received a copy of the protection order on November 17th and contacted attorney Vannier on November 19th. Vannier agreed to represent Perrow in regards to both the protection order and any potential criminal charges. Vannier asked Perrow to gather information about A.P.’s allegations and provide him with a written narrative of the matters.
On Novemeber 29th, Sloan executed a search warrant of Perrow’s home. Sloan seized the written materials that Perrow had prepared for his attorney. Perrow contacted his attorney while the police were searching his home and told him that they had seized the written materials he had prepared for Vannier. Vannier told Perrow to inform Sloan that the materials were protected under the attorney-client privilege. Sloan took the materials anyway. Sloan read and analyzed the materials and compared them to notes he had taken from his conversation with Perrow. He noted inconsistencies between the written materials and what Perrow had told him. Sloan prepared a written analysis of the materials seized and forwarded it, along with the seized documents, to the prosecutor.
On December 17th, the State charged Perrow with two counts of child molestation. Perrow moved to dismiss for based on unjustifiable interference of the right to counsel, violation of the attorney-client privilege, and prejudicial governmental misconduct. The court granted the motion finding that at the time the documents were seized, Vannier represented Perrow and therefore the items seized were protected by the attorney-client privilege. The court found that the seizure violated Perrow’s constitutional right to counsel and his right to privileged communication with his attorney. Based on the prosecutor’s knowledge of the contents of the documents seized, the court concluded that suppression was not an adequate remedy and dismissed the charges.
The attorney-client privilege applies to communications and advice between an attorney and client and extends to documents that contain a privileged communication. It applies to any information generated by a request for legal advice. "The attorney-client privilege exists in order to allow the client to communicate freely with an attorney without fear of compulsory discovery." The privilege encourages a client to make a full disclosure to his or her attorney, enabling the attorney to render effective legal assistance. An eight-part test in determining if the privilege exists is (1) the client must have sought legal advice; (2) from an attorney; (3) the communication was made to obtain legal advice; (4) in confidence; (5) by the client; (6) the client must wish to protect his identity; (7) from disclosure; and (8) the protection must not have been waived.
The findings of the trial court established each part of the eight part test and thus the attorney-client privilege did exist and the documents were covered under the privilege. The Court of Appeals held that the Sixth Amendment right to counsel argument doesn’t matter, because existing case law holds that a violation of the attorney-client privilege is enough to suppress evidence or grant dismissal even before a Sixth Amendment right attaches.
So we are left with the issue of whether dismissal was the appropriate remedy. Case law holds that the prejudice from a violation of the attorney-client privilege cannot be isolated and thus dismissal is the only appropriate remedy. The dismissal was affirmed.
Both Detective Sloan and the prosecutors in this matter really dropped the ball. Detective Sloan could have simply contacted the prosecutor’s office and asked them if the documents were privileged; well in advance of anybody viewing them and spoiling the case. In addition, the prosecutors, once they learned the privileged information was contained in Sloan’s reports, could have sealed the evidence and returned it to Perrow’s attorney. This action may also have saved the case. Instead, both Detective Sloan and the prosecutors ignored the privilege (even when they were informed it existed when seized) and lost the opportunity to convict an alleged child molester. Shame on you. Get it right next time!
A dissent was filed in this case by Judge Korsmo, who felt that a lesser remedy was appropriate and that the violation of the attorney-client privilege was only negligent and not egregious. He based this on the fact that the documents were seized under a valid search warrant. The cases in which the majority relied upon, were cases where the information was seized illegally and after the right to counsel had attached.
This may be taken to the Supreme Court.