Why a Texas judge, of course. From Grits for Breakfast, yet more of the fascinating world of Texas judicial follies.
“Judge Mark Rusch of the 401st District Court in Collin County apparently issued a search warrant at the request of the DA’s office for defense attorney files in a murder case before his court.” KRLD Radio reported the search warrant “may be a first in Texas.”
The background of the story from the Collin County Observer :
The suspect, Mark Bell, wrote letters to his wife detailing “suicide and escape plans”, and one describing an orange shoe box that “could be crucial to the prosecution’s case”. Police learned of the letters which the suspect’s wife had delivered to Keith Gore, who is Bell’s defense attorney.
Four days before a hearing to determine if the police could see those items, the police instead executed a search warrant on the defense attorney and seized the letters and shoe box.
So many issues raised by one little warrant execution. Now one might be inclined to go after the prosecutor for seeking a search warrant when the hearing to determine production was only four days off, but that would only implicate the prosecutor for playing hard ball. You see, prosecutors can ask, but they need a judge to approve. So the onus falls on another truly special Texas judge, Mark Rusch.
Had the prosecutor somehow obtained evidence that the defense lawyer was about to destroy evidence in his possession that would inculpate his client, then there might be a reason to take such drastic action as approve a search warrant. Of course, it’s hard to imagine a scenario where a prosecutor would have such evidence, unless the defendant lawyer, Keith Gore, was screaming it down the courthouse hallway.
Beyond that, there can be no explanation for the issuance of a warrant. If the evidence existed (as it apparently did), it was the defense lawyer’s duty to preserve it pending order of the court. If he was inclined to behave unlawfully, it would likely already by destroyed. An order from the court directing him to preserve the evidence would not have been inappropriate. But other than that, they had a hearing scheduled to determine the issue. There was no cause to raid the law office.
Side Note: Grits has an update from NBC 5 stating that Keith Gore has hired his own attorney, who “calls the search ‘illegal’ and ‘unconscionable’ and a violation of attorney client privilege.” While there is a complex privilege issue involved, including spousal privilege since the evidence seized included letters between the defendant and his wife, it does not violate attorney client privilege to seek evidence of a crime that is held by the attorney. Physical evidence of the crime itself is never privileged, regardless of who holds it.
Letters written by the defendant to his wife, essentially confessing to the crime, however, are not physical evidence of the crime. But included with the letters given to Gore by the wife was a shoe box containing a Wal-Mart receipt for something (perhaps the murder weapon?), and this receipt, unlike the letters, is not privileged and does not become privileged because it came into the lawyer’s hands.
So what’s the big deal? Well, first we have cops and prosecution seizing evidence prior to the determination that they have any authority to obtain it from the defense lawyer, essentially circumventing the court to grab what it may not be entitled to possess. This is a sentence first, convict later type situation.
But more significantly, at least to my mind, is the police rifling through Gore’s files, his privileged and confidential information about his criminal defendant clients, to search for evidence in satisfaction of the warrant. File by file, page by page, the police thoroughly and diligently search. And now every case, every client represented by Keith Gore has been compromised. The wrong done to these other, unrelated clients, is inestimable. The sanctity of the privacy of a criminal defense lawyer’s files has been violated.
There’s got to be more to this story, such as what compelled Texas judge Mark Rusch to sign a warrant under these circumstances. The Texas and National Association of Criminal Defense Lawyers has sent a strike force to Collins County to go after this perversion of justice, seeking to ameliorate the damage to the extent possible and force Rusch’s recusal from the case.
Hopefully, Grits will keep abreast of this case and we’ll get to take a peak at the search warrant application to see what was alleged to justify a search of Keith Gore’s office. This ought to be interesting.