James Murphy III was so fresh from being the Saratoga County District Attorney that he barely had time for his new robe to wrinkle before signing off on a search warrant for the Saratoga County Public Defender’s Office.
The unprecedented search warrant, signed Sept. 27 by County Judge James A. Murphy III, permitted police to search offices at 40 McMaster St., including the office of assistant Public Defender Matthew Maiello and the client file for Arthur A. Gannon of Corinth, according to a copy of the warrant obtained by the Times Union.
What could possibly necessitate this “unprecedented search warrant” remains unclear, though it appears to have started with an overheard jail telephone call.
Gannon, 47, was arrested in July on felony sex crime charges. The search warrant sought to find evidence of child pornography in the case against him, including “any and all material that Matthew Maiello obtained” from a black briefcase that Gannon’s mother, Patricia Gannon-Ramsey of Hudson Falls, gave to Maiello. An affidavit in which a law enforcement official lays out the probable cause in support of the warrant has not been turned over to Gannon’s new attorney, Danielle Neroni.
Gannon told his mother to give the black briefcase to his lawyer, as it would prove his innocence. And someone listened to his call and that was all it took.
Neroni said the warrant was obtained after an employee in the district attorney’s office who monitors phone calls made by inmates at the county jail overheard Gannon ask his mother to provide Maiello with the contents of a black briefcase, to assist in his defense. The warrant instructs officers to seize any photos or electronic equipment containing images depicting children engaged in sexual conduct from the bag Maiello obtained from Gannon’s mother and bring them to the court, according to the document.
To be clear, handing evidence of a crime to a lawyer doesn’t remove it from the purview of investigation, or a search warrant. Criminal defense lawyers’ offices are no more a safe haven for physical evidence than anywhere else. There is no sanctuary for evidence.
But if the overheard call offered evidence of anything, it was the existence of exculpatory evidence, not evidence of a crime. Evidence of innocence. Evidence to assist in a defendant’s defense. There is no basis to issue a search warrant for evidence of innocence.
Five sheriff’s deputies executed the search warrant, Neroni said. They went through Gannon’s case file and also took a portable memory chip, or SIM card, according to Neroni, who said she believes no child pornography was found on the confiscated device.
Even assuming that night is day, evidence of innocence is evidence of guilt, the deputies executing the warrant went through the defense file. This is ground zero of privilege, confidentiality, sanctuary. These are the words and thoughts, the theory and strategy, of the defense. They are never to be seen by the eyes of deputies.
However, the search-warrant affidavit that was presented to the judge by a sheriff’s investigator, and an assistant district attorney laid out detailed information that established probable cause that the electronic storage device turned over to the attorney may contain child pornography, according to a person close to the case but not authorized to comment publicly. The person said the device is still being analyzed by State Police.
In an unprecedented situation, an unnamed source says there was “detailed information,” and that makes this acceptable? What does the new Saratoga County District Attorney have to say about that?
“Ethically, it is not appropriate to comment on a pending case,” Heggen said.
And yet it’s done constantly when it serves the prosecution’s purpose. How fortunate that Heggen suddenly found ethics after raiding the public defender’s office.
Based upon the information thus far available, there is nothing to suggest that any evidence of a crime was in the possession of Saratoga County public defender Matthew Maiello. And Judge Murphy was just the guy to sign off on a warrant that would breach a wall that should only be violated in the most extreme circumstances, and then only with extreme precautions.
Assuming, arguendo, that the evidence proffered showed probable cause to believe that the “bloody knife” was in Maiello’s hands, it doesn’t dissipate the violation of attorney/client privilege that necessarily comes of a search. There should have been a taint team, a separate, independent prosecutor to conduct and oversee the search to assure that only the evidence of a crime found its way into the hands of the assistant district attorney responsible for prosecuting the Gannon.
There should have been measures in place to prevent five deputies from leafing through the defense file, a place they could never be justified in looking otherwise. Hell, five deputies? Because they expected violent resistance from the public defender? Did they toss a flashbang in first to stun the lawyers?
In the meantime, state police are “searching” an “electronic storage device” given Maiello to assist in Gannon’s defense. So much for his right to counsel, his right to present his defense, his right to confidentiality. What is there to say to a defendant after they’ve “searched” his evidence of innocence? Oops?
There may come a time when the justification for this fundamental violation of privilege becomes known, whether by revelation of the affidavit in support of the search warrant (assuming it exists), or the record of an oral presentation to Judge Murphy. Whether it suffices seems hard to imagine given the information available. But when something so “unprecedented” is done, the failure to reveal the basis (which has to happen anyway) immediately is incomprehensible. It smacks of being total bullshit when they keep it under wraps and offer up an unnamed source in its place.
Even if there is sufficient evidence to establish probable cause, and not just contorted claims that speculate that Gannon’s words were some sort of insidious code to conceal evidence of guilt, the prosecution could have gone to Maiello, who as a lawyer is responsible for his own ethical duty not to be used as a sanctuary to conceal inculpatory evidence, and asked. But that wouldn’t be nearly as cool as raiding the offices of the Saratoga County Public Defender. And as long as Judge Murphy was willing, why not?
Update: At Fault Lines, Noel Erinjeri contends that what’s good for the good is good for the gander.
DEFENSE LAWYER (who is totally not making this up): Your Honor, I want a search warrant for the prosecutor’s office. I saw a suspicious character in a brown uniform dropping off a package, and I squinted really hard and I thought I could make out the words “exculpatory evidence” on the label.
JUDGE (former public defender, ACLU Board Member, KGB sleeper mole): Granted.
It could happen. Not. But isn’t it fun to dream?