A Modest Proposal for Search Warrants: Goose, Meet Gander
Nov. 16, 2015 (Mimesis Law) — The Saratoga County Sherriff’s Department executed a search warrant on the local Public Defender’s office. Police seized the contents of a briefcase that Arthur Gannon had told his mother to deliver to his attorney, along with Gannon’s case file. The call was made from jail, and recorded, and someone at the DA’s office overheard the call. The warrant was signed by Judge James Murphy, who (surprise!) had been the Saratoga County District Attorney for 17 years before taking the bench. The District Attorney who sought the warrant, Kay Heggen, had been Murphy’s chief assistant before taking being elected DA in her own right.
Many defense attorneys, including Scott Greenfield, are all upset about this. Those whiny defense attorneys are showing too little imagination. This is awesome, and it should be happening a lot more. With one added feature: defense attorneys should get to do this too.
Last week, I wrote about prosecutors withholding evidence, and “the epidemic of Brady violations abroad in the land.” Judge Kozinski said that only judges can stop it. I opined that the People could hold their elected representatives to a higher standard. But, like Newton with his apple, or Darwin on the Beagle, Judge Murphy and DA Heggen have shifted the whole paradigm. Forget judges, forget voters. Here’s how we level the playing field:
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.
“But…but…,” you splutter, outraged, “this would lead to chaos! How could prosecutors possibly get any work done if defense could just continually threaten to rifle through their office and files?” Have no fear. After all, search warrants are only issued by neutral magistrates upon probable cause. It’s not like they’ve ever abdicated this responsibility on behalf of the government. Do you really think they would start now?
“But…but…,” you stammer, confused, “wouldn’t the defense attorney be able to put the information to improper uses, like intimidating witnesses?” Pish, and might I add, tosh. Prosecutors never do this. Are defense attorneys any less trustworthy?
“But…but…,” you mutter, sullenly, “The prosecutors are trying to stop a crime.” Yeah, well, concealing evidence is a crime, too.
Now that my tongue is lodged firmly in my cheek about as far as it can go, here’s what should have happened. First of all, the search warrant should never have been issued. If Gannon actually told his mom, “the stuff in the bag will help me,” that’s not evidence of a crime. It’s evidence of the opposite. Of course, there’s an anonymous source who claims:
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.
I’ll bet $20 that the “detailed information” came from a jailhouse snitch who is also totally not making it up, but without the text of the search warrant affidavit (which hasn’t been released) that’s just speculation.
Even if we squint really hard again and pretend that there might be some evidence in that suspicious black bag, there is no reason, NONE, to include the case file. That’s typically where the attorney makes his notes, brainstorms trial strategy, or even writes out lines of questioning and cross examination. It also might have stuff that no police officer or prosecutor should see, like evaluation of witnesses, unflattering notes about the defendant, or notes of additional investigation that turned up bad facts. (There is no reciprocal Brady obligation for the defense.)
This isn’t Bill Belichick stealing signs. This is Belichick sending five armed men to take Pete Carroll’s playbook out of the locker room and reading through it before the game. If Heggen really wanted to be thorough, she should’ve gotten a search warrant for the attorney’s home, car, computer, cell phone, storage locker, and bodily cavities. Why not? Her former boss probably would have signed it, because reasons.
But surely, Heggen and Murphy had a legitimate reason for doing this, right? It’s not like they’ve made a habit of doing this. So what’s their justification for completely shredding the attorney-client privilege and making a mockery of the adversarial process?
“Ethically, it is not appropriate to comment on a pending case,” Heggen said.
Murphy declined to comment as did Sheriff Michael Zurlo.
Oh, Okay then. Never mind.