He did not just do that!

Oh, but he did.  Here's the video that's making the rounds in the criminal defense world today.  It's about 10 minutes long, so if you don't want to watch the whole thing, I'll recap it.  But it's worth watching if you haven't seen it yet just because it's so unbelievable.



Here's the short version: While the defense attorney is standing at the podium with her client, presenting her case for sentencing to the judge, the sheriff's deputy who is in the courtroom comes to stand right behind the defendant, between counsel tables.  From there, he looks down at the defense attorney's file, which is on the corner of her counsel table, right behind the attorney.  The deputy sees the bottom of a piece of paper in the middle of the file, so he pulls it out.  He then motions to another deputy in the room who comes over, takes the paper, and leaves the courtroom.  It's only then that the defendant alerts his defense counsel that something is amiss.

There are several reactions to this situation.  First, this all happened in the judge's direct line of sight.  There's no way she couldn't see the deputy's actions.  How did she  not react to this happening right in front of her?  As a defense attorney, I need to be able to trust that any judge I practice in front of would have my back, or rather my client's back, in a situation like this.  For a deputy to be looking at defense counsel's file is a gross violation of attorney-client privilege and the judge ought to make sure any deputy working security in her courtroom would never do such a thing. 

Then you have to wonder about the prosecutors who had to have been able to see this deputy.  Not one of them thought to pull the deputy aside and quietly order him to put the paper back?  Not one of them thought to stop the other deputy from leaving the courtroom with whatever was stolen from the confidential file?

Next, I can't let the defense attorney herself off the hook.  She probably shouldn't have turned her back on her confidential file, although, like her, I want to believe that I can trust grown professionals in a courtroom to respect my privileged materials without my having to watch those materials like a hawk for every second.  Also, I wouldn't have been so agreeable to holding a hearing at some later date in some less private location.  I would have probably gone a little nuts (ok, a lot nuts) and demanded that we get an explanation from the deputy right then, before he could have time to create a plausible excuse for his behavior. 

A judge who heard evidence on this issue last week has so far bungled the thing hideously by finding that the pilfered document was privileged, but he couldn't find the deputies in contempt unless the defendant would waive his privilege so they could discuss the contents of the document in an attempt to defend their actions.  Yes, that is as ridiculous as it reads.  Because if the document was privileged, there is no defense.  If the document was privileged, the deputy had no business taking it.  And, of course, regardless of the contents of the actual document, the deputy had no business sidling over to the table and peeking through the file to find that document.

Lots of other blog posts and articles have already been written expressing the outrage about this situation.  Here and here for a start.  I am sure you all can guess that I think it's utterly outrageous that a sheriff's deputy feels entirely free to walk up to defense counsel's confidential file, rifle through it, and remove a document for copying.  I would raise holy hell if this happened to me and my client.

But the thing that I really want to say is this: There's a school of thought out there that we don't need the exclusionary rule.  We don't need to exclude evidence that was obtained in violation of the 4th Amendment because we have sufficient other means of deterring bad police behavior.  And, most notably, we no longer need the exclusionary rule because of "the increasing professionalism of police forces, including a new emphasis on internal police discipline."  This isn't just an argument being pushed by prosecutors or law professors.  This idea of the "new professionalism of police" comes straight from the top: Justice Scalia himself wrote it in Hudson v. Michigan in 2006, openly questioning whether the exclusionary rule should remain the law.  As Scalia wrote, "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously."

Well, your honor, is this sheriff's deputy brazenly taking privileged documents from a confidential defense file the sort of new professionalism you wrote about?  Is this more evidence that law enforcement across this country takes constitutional rights (like the right to counsel) seriously?  I would submit this incident is Exhibit A for why we most definitely need an exclusionary rule: because sheriff's deputies feel no compunction about rifling through the defendant's confidential materials in open court.