Tagged: Privileged Communications

THE SPIRIT AND LAWYERING OOPS

“Look at my diploma. Does it say Placebo State University?”

That’s what I wanted to say to my clients then they complained that they didn’t want a public defender, they wanted a real lawyer. Now I always thought I had made up good ol’ Placebo State. Then I read Will Eisner’s The Spirit #5 and the dialog of one Chadwick Swineheart attorney at law. Then I realized there really must have been a P.S.U., because Chadwick obviously attended that august institution. And based on the knowledge of law he demonstrated in this story, Swineheart attended it in July.

In said story, the Spirit, masked crime fighter of Central City, was trying to find out the current whereabouts and master plan of The Octopus, master criminal and the Spirit’s archenemy. Spirit broke into the office of the Octopus’s lawyer, the aforementioned Mr. Swineheart, rifled Swineheart’s files, and started reading like a teenager devouring the Twilight trilogy. When Swineheart caught Spirit in flagrante lectio, Spirit asked Swineheart, “So tell me … Where’s The Octopus? What’s his latest game?”

Swineheart steeled himself and said, “Private, stolen documents are against the law. Inadmissible as evidence.” To which Spirit answered, “One of the many reasons I’m not a cop.” After this compelling legal argument, Swineheart coughed up everything he knew about the Octopus. And, considering the way he was portrayed, Swineheart probably dislodged a hairball, too.

So how many different legal mistakes did Mr. Swineheart make in said scene? Surprisingly, not violating the code of professional responsibility by revealing privileged information about his client. That’s one of the few things Swineheart didn’t get wrong.

Swineheart told Spirit that the Octopus “is running some big scam to sell inferior plate steel to a government contractor.” I added the emphasis, because it showed the Octopus was running an on-going criminal activity and was going to commit future criminal acts. The Code of Professional Responsibility permits an attorney to reveal privileged information when a client is going to commit a future crime in order to prevent said crime from happening. So Swineheart was correct on this one.

However, one out of several is only a good record if you’re playing Football in Cleveland. For lawyers it’s lousy. Even Hamilton Burger won all the ones he tried after Perry Mason told him where to look.

So what did Swineheart get wrong? Let’s start with the concept that “Private, stolen documents are against the law. Inadmissible as evidence.” Sure they are. If someone stole a bunch of private documents from a business to sell to its competitor, wouldn’t those stolen documents be admissible in the industrial espionage trial as proof that the theft occurred? Of course they would. So private, stolen documents are admissible as evidence.

Now before you accuse me of being fast and loose with the law, because Swineheart obviously meant that you can’t steal private documents from him and use them as evidence against him or his client, let me respond to your accusation. You’re right.

But don’t go gloating that you caught me in an error; not yet. Sure Swineheart probably did mean you can’t steal private documents from him and use them as evidence against him or his client. It doesn’t matter. Either way you interpret Swineheart’s statement, he was incorrect.

Private citizens can break into lawyer offices – or other places – and steal private incriminating documents – or other incriminating evidence – and turn that information over the police. The police and prosecutors office may then, in turn, use that information as evidence in prosecutions against the persons who had evidence stolen from them.

I’ve written about this before, so everybody let’s say it together, It’s the Silver Platter Doctrine. Hey, Swineheart, I didn’t hear you back there. I said, “everybody!”

The Fourth Amendment forbids the police from making illegal searches and seizures. When they do, the evidence seized during said illegal search and seizure is excluded by the Exclusionary Rule. As the United States Supreme Court explained in Mapp v. Ohio, the rational of the Exclusionary Rule is that the police should not be able to benefit from it’s illegal behavior and excluding the illegally-seized evidence will deter the police from committing similar violations in the future.

The police don’t like the Exclusionary Rule. Prosecutor Offices don’t like the Exclusionary Rule. And, truth be told, neither do courts. In fact, the only people who seem to like the Exclusionary Rule are the criminals.

No one likes letting criminals go because key evidence that would have convicted said criminal has to be excluded. As a result, courts have carved some exceptions into the Exclusionary Rule. And by “some,” I mean courts have carved so many exceptions into the Rule it looks like a turkey one hour after Thanksgiving dinner.

One of the chief exceptions to the Exclusion Rule looks at the rule’s justification that it deters future police misconduct The courts routinely hold that if excluding the evidence would not deter future police misconduct, then there is no underlying justification to excluding the evidence and it should not be excluded.

So if private citizens make an illegal search and find evidence which they turn over to the police, the underlying future misconduct justification doesn’t apply. Excluding the evidence would not deter future police misconduct, as there was no police misconduct in the first place. The misconduct was all on the part of the private citizen.

Sure the private citizen might have broken the law by trespassing and stealing evidence, but the police did nothing wrong. So the evidence should not be suppressed. See, Burdeau v. McDowell, a decision of the United States Supreme Court which holds precisely what I just wrote.

Naturally it did. If Burdeau didn’t support the argument I was making, would I have cited to it as support? Maybe if I were Chadwick Swineheart. But I’m not, so the Burdeau case says precisely what I argued.

The Burdeau case came out in 1921. It’s not exactly new law. Even if this current Spirit series takes place sometime in the past, it still has to take place after 1921. After all, The Spirit didn’t even start until 1940. So there’s no reason for Swineheart not to have know Burdeau’s rule and that evidence stolen by the Spirit would be admissible in court.

Okay, there’s one reason: Swineheart is to legal scholarship what the Quadruple Bypass Burger is to Jenny Craig.

But here’s what really hurts in the whole Swineheart matter. I’ve written about the Silver Platter doctrine before. I don’t think several times before would be an exaggeration. You’d think that a lawyer who’s an actual comic-book character would read the column of the foremost comic-book legal analyst. But >>sob<< he doesn’t.

Maybe that’s why he’s such a lousy lawyer.