What’s the Rusch to Search a Law Office?

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.

8 thoughts on “What’s the Rusch to Search a Law Office?

  1. Stephen M (Ethesis)

    Err, doesn’t the exclusionary rule apply if they ended up searching through things they should have?

    Seems every compromised file is a “get out of jail free” card on a federal habeas writ. Or am I missing something (which could well happen, I don’t practice criminal law)?

  2. SHG

    Short answer, nope.  First, no one knows what files they’ve looked through.  There’s no list.  Second, they didn’t look to get a freebie, but to check to see whether the file contained anything they were looking for.  But in the course of the authorized search, it happens that they have to read through other stuff.  Oops.  And finally, physical evidence gets suppressed, not knowledge.  So, nope.

  3. Tony Vitz

    It is just a sad time in Collin County, Texas. The constant efforts (many are disguised) to curtail our rights are not being resisted enough. Why do we have judges that would sign a warrant to search a lawyer’s office? The ground work for this event began many years ago. They don’t have to kill us anymore when we will just lay down and play dead. “First they came for the jews and our government branches, but I sat on my butt, now they come into my office, my home, and my life…

  4. Joel Rosenberg

    Okay; I’ll bite. “Fruit of the poisonous tree”? In at least some cases, doesn’t evidence gotten as the result of knowledge illegitimately obtained get suppressed?

  5. SHG

    They aren’t seizing evidence, but viewing confidential files.  Except no one knows what they saw or what information they gleaned.  If it were physical evidence, it would be easy.  But simple information?  How do you know it and how do you show it?

  6. Joel Rosenberg

    Well, when the LEO types are both professional and honest, you ask them, and they answer honestly.

    I’m a pretty cynical guy, but I do know some folks for whom following the rules and adherence to their oath is more important than putting J. Random Badguy in jail; I can’t imagine that I’ve met all such.

    That said, if you’re going to suggest that not all LEO types are that way — or that that points to a very real problem — I’m not going to begin to consider the possibility of disagreeing.

  7. SHG

    When exactly do you ask?  You don’t get to hang out with them when the search is over, have a beer and chat about it.

    It’s not that they are so evil that they will deliberately go through your files to see what they can find, though some may be, but that they should never be in a position to learn something they shouldn’t know.  And the clients should be secure in the sanctity of their files without fear of potential police viewing of their confidences.

  8. Tom Jenkins

    Judge Rusch has acted on a number of issues that are in question. At his own admission, he does not read everthing that he signs and apparently has signed a number of warrants, orders, etc that were not in compliance with the state criminal code. He also has had transcripts changed that affected actions taken in his court.

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