When Terry Haddock decided that he would much rather be the snitch against Shannon Williams than use the money he was paid to be his lawyer, one might suspect that a judge considering the propriety of the government’s evidence to be dubious.  After all,

Few things undermine the integrity of the legal system than the idea that one’s lawyer isn’t one’s lawyer, but a government agent.  How can a criminal defendant ever be secure in the knowledge of undivided loyalty if a government agent can be allowed to feign the role of criminal defense lawyer while serving another master? 

This isn’t merely a suppression issue, though suppression would be the appropriate mechanism to challenge the conduct, but rather a facial attack on the constitutional right to counsel.  If this were permissible, then no defendant could be assured that the person across the table, the person he paid, the person upon whom he relies, is really his lawyer.  It’s nuts.

Which is why Senior U.S. District Judge Lyle Strom was so deeply disturbed by the government’s exploitation of the attorney/client relationship?  From the Omaha World-Herald :

So in a 49-page ruling Monday, a judge took dead aim at one party’s actions in the case — calling them cunning and manipulative.

That party? Williams himself.

You didn’t really think he would use such harsh language against the government, did you?  That would be intemperate.

Senior U.S. District Judge Lyle Strom refused to dismiss the indictments or condemn the U.S. government’s actions in its highly publicized, much-scrutinized investigation that led to the indictments of Williams and 10 others.

In the pivotal ruling in the case, the judge had no criticism of the U.S. government’s use of attorney Terry Haddock to record Williams over eight months last year in the jail. During that time, Haddock recorded Williams 63 times — and supplied him with the cell phone Williams needed to orchestrate his operation.

No criticism.  None.  Just doing their job, keeping us safe from terrorists, father-rapers and criminal defense lawyer manipulators.

“The government’s conduct in utilizing Haddock was not outrageous,” Strom ruled. “Williams (argues) that the attorney-client relationship will be unnecessarily damaged if the indictment against him is not dismissed.

“The court does not share Williams’ pessimism. It is already well established that communications between a client and an attorney are not privileged if the communication is regarding ongoing or future criminal activity.”

It’s true that criminal defense lawyers cannot become complicit in a client’s crime.  It’s true that communications of ongoing or future criminal activity are not confidential.  So Terry Haddock, if he believed that Williams told him, one of his lawyers, about non-privileged criminal conduct, could hike up his skirt and run down to the United States Attorneys office to spill his guts about his now former-client

But Judge Strom seems to have completely missed a major issue in this scenario.  While Haddock had reason to be relieved as counsel, and reason to spill that initial non-privileged communication, he cannot then continue to feign being Williams’ lawyer, continue to record his communications, continue to make Williams believe that he was talking to his lawyer and attempt to induce him to further incriminate himself.

Bizarrely, Judge Strom’s omission of this element of the suppression motion only applied to the government.

In preserving the government’s case, the judge issued a layered ruling that raised no qualms about the government’s use of Haddock but left open questions about whether the attorney would face disciplinary consequences.

Strom said Haddock’s actions “may be worthy of professional sanction.”

“But … the evidence he obtained was not collected in violation of the Constitution,” Strom wrote. “The merits of (an ethics) complaint will be reviewed in due course. The result of that matter, however, should have no effect on determining whether the government acted outrageously.”

If this is to be understood, the government is free to exploit Haddock’s impropriety without getting any of the goo on its face.  Of course, the government was integral to Haddock’s taping Williams and bugging the attorney visiting room.  The government “handled” Haddock as he used his position as attorney, wrapped up in the Sixth Amendment, to fake out Williams.  And yet the government’s hands were spotless.  Not just clean, but absolutely spotless.

Strom also dismissed Williams’ arguments that the government’s use of Haddock would crumble a legal bedrock: attorney-client privilege.

“The court’s decision today merely reaffirms the principle that an attorney’s presence cannot be used as a shield to (cover up) future criminal activity,” Strom wrote. “That was the rule before this case, and the rule remains intact hereafter.”

The problem and solution, according to Judge Strom, is that Williams, being a criminal and all, deserved to have his 6th Amendment right to counsel undermined by this pretense that the guy in the attorney visiting room with whom he spoke on at least 64 occasions.  The initial communication, in which Haddock claims Williams sought to use him in connection to ongoing crimes, wasn’t recorded, but the judge had no issue taking Haddock’s word for it that Williams, during that initial conversation, told Haddock of his plans to eliminate a witness (which never came up again in any of the 63 recorded conversations).  Certainly attorney Haddock would never lie, despite his drug issues, depression, impropriety and ethical lapses.

With a wave of the pen, Judge Strom has raised the specter that no defendant can be secure in the knowledge that the person he’s talking to across the desk in the attorney visiting room is really his lawyer and not a government snitch.  Yet again, the deception doesn’t bother him a bit.

And even if everything about Terry Haddock stinks, it’s not like the government did anything wrong.