Minnesota Court Splits Over Suppression as Remedy For Rule 4.2 Violation In Criminal Case

After his arrest on murder charges, a defendant gave a series of three statements to police. The last statement was obtained after a public defender had been appointed and over her vehement objection. The statements were admitted into evidence at trial over defense objection and the defendant was convicted.

On appeal, the Minnesota Supreme Court held that the prosecutor had violated Rule 4.2 in permitting the interviews after counsel was appointed but that “the state’s conduct was not so egregious as to warrant suppression of the resulting statements under the facts of the case.” The court concluded that, in a criminal matter, the government attorney may not direct any communication with a represented defendant about the subject of the representation unless there is consent of the lawyer, the communication is authorized by law, or there is a court order. “Tacit consent” of defense counsel does not suffice. Because the client had repeatedly sought to speak to police after counsel was appointed, there was an insufficient showing of bad faith to order suppression of the statements.

Three justices dissented, and would find that suppression was proper based on both Rule 4.2 and the violation of the right to counsel: “If there was any urgency here, it was one the police created because the police wanted to talk to [the defendant] without counsel present… the police adopted a clear strategy to undermine [the defendant’s] relationship with his counsel, even before counsel was appointed.”

Finally, the dissenters do not accept as explanation the majority’s view that “poor communication” between prosecutor and defense counsel and the prosecutor’s “frustration” with defense counsel led to the ethical violation: “[The prosecutor’s] frustration does not mitigate a violation of the rule; rather, counsel’s failure to seek a court order aggravates the misconduct.” (Mike Frisch)