Saratoga PD’s Office, A Search Warrant Too Far (Update)

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?

20 thoughts on “Saratoga PD’s Office, A Search Warrant Too Far (Update)

  1. mb

    Well, he could argue that having his attorney’s work product rifled through by the cops inhibits his ability to get a fair trial, but I think he’d have more success arguing that they profiled the briefcase. #notallblackbriefcases

  2. Richard

    In my state the court has to appoint a special master outside the prosecutor’s office, and also give the attorney the opportunity to deliver the materials specified to the special master before a search is conducted unless the attorney is suspected of crime related to the materials sought. Of course the latter is an exception you can drive a truck through and no procedures will be good enough if the judge doesn’t do his job in the first place.

    1. SHG Post author

      Even enlightened procedures (which should be obvious, whether in statute or not) are only as good as the judge who signs off on the warrant. Ain’t law great?

      1. John Barleycorn

        I guess it can be a workable means of adjudication when both sides of your guild and the bench are actually held accountable for their behavior. But even a sarcasric “great” would be a bit of an overstatement under even the most optimal conditions.

        However, it is it really a stretch to observe that perhaps all and everything is pending case? If so, and perhaps it actually is, it wouldn’t be ethical for me to comment on just what actually is involved in proving ones innocence but after you get comfortable with the concept that only “criminals” have something to “hide” the rest is easy.

        Next warrant please…

  3. MoButterMoBetta

    Maybe in an alternate universe, a public defender just got a judge to sign a search warrant for the district attorney’s office, to search for Brady documents.

  4. Jason Peterson

    You guys are surprised? For decades this has been the governments go to play for setting rights crushing precedent.

    Step 1: Say the words “child pornography”…..

    1. SHG Post author

      You win stupidest comment of the day. Sorry, no prize, but on the bright side, it’s really, really hard to win.

        1. SHG Post author

          The issue in this post is that they obtained a search warrant for his lawyer’s office. It’s a very rare event, though it happens occasionally and is always extremely controversial. In this instance, the defendant was charged with child porn. In other instances, it’s for other crimes. In other words, this isn’t a child porn issue, but a raiding a lawyer’s office issue.

          1. Jason Peterson

            That was the point I was aiming to make. That it won’t be nearly as “controversial” in this case, because of the charges. That unsympathetic defendants make for the best precedent setting cases.
            Because if any court rules against the prosecution in this case, we all know that the newspaper headlines won’t be about the bolstering of attorney client privilege.

            1. SHG Post author

              Jeez, don’t double down. Now you’re gonna make MB have to try to steal the title from you. Why would you want to do that?!? Let it go. Let it goooooo.

      1. mb

        Damn, someone beat me out again! And I was trying really hard!

        Any chance I could amend my comment to make it stupider? I’ll use the word “gender”.

  5. Jason Peterson

    Who cares if the prosecutor violated this perverts “rights”. I say these sick fucks give up their rights as soon as they touch a kid, or look at a picture of someone else touching a kid.
    Screw these defense lawyers who want to get him off on some legal “technicality”. This is why everyone hates criminal defense lawyers (we all know they just do it for the money).
    And it’s not like prosecutors will be able to do this stuff in any other case, just because they were able to get away with it in this case.

    1. SHG Post author

      You just couldn’t stop, could you? Sorry, but as much as everyone hates child porn (and they do), it’s just not the big thing here. Move on.

  6. Jason Peterson

    Maybe they’ll have to go with terrorism.

    Terrorism is always a good bet to get rid of those pesky “rights”.

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