Defense Counsel Dealt With Evidence In Reasonable Manner

The Louisiana Attorney Disciplinary Board has dismissed ethics charges brought against a defense attorney in an aggravated battery case

Prior to the defendant’s arrest, law enforcement officials had served and executed a search warrant on the defendant’s business which included the following description of sought-after evidence: “any and all surveillance equipment, cameras (or) recordings.” At the time of the incident in question, the defendant Matthews maintained a video camera recording system which was later determined to have captured the incident on which the felony charges were based.

At the time the search warrant was executed, officers observed evidence of a video recording system in place on the premises; the defendant deflected their efforts to recover the equipment by claiming that the system was “inoperable and failing to disclose that he previously had concealed a critical component- the computer CPU containing video images of the incident in question.

Defendant later revealed to respondent that he had retained video evidence of the incident and respondent arranged for the equipment to be transferred to a video technician for downloading and analysis of the digital images. Despite the fact that the equipment was brought to his office by the client on two separate occasions – during which time the respondent viewed the video evidence – he failed to take possession of the evidence and immediately turn it over to the appropriate authorities.

Instead he “facilitated” the transfer of the evidence to a computer forensic expert which he had retained, instructing the expert to reproduce the digital images contained on the unit’s hard drive. Only after the expert had retrieved the data did respondent instruct the expert to furnish the evidence to the state.

The board

Here, Respondent did not counsel Mr. Matthews to or assist him in a criminal or fraudulent act, nor did he obstruct another party’s access to evidence or counsel/assist Mr. Matthews in doing so. Rather, on multiple occasions, Respondent instructed Mr. Matthews to turn over the evidence to the police and/or prosecutor. Additionally, Respondent informed Mr. Matthews that he was likely to be charged with obstruction of justice. This is based upon Respondent’s testimony, which the Committee found to be credible and to which ODC did not offer a rebuttal. Ultimately, Respondent was successful in convincing his client to release the CPU to the prosecution, albeit after an expert retrieved, preserved, and made copies of the video. However, as will be discussed below, having an expert examine and preserve the evidence was reasonable under the circumstances and does not constitute obstruction in this matter. Accordingly, the Board adopts the Committee’s conclusion that Respondent did not violate Rules 1.2(d) and 3.4(a).

The ethical duties

ODC argues that upon learning of the existence of the CPU, Respondent should have immediately taken possession of the CPU and turned it over to the prosecution, or, at least immediately informed the prosecution of its existence. ODC bases this argument on the Rules discussed herein and on the Court’s holding in State v. Green. 493 So.2d 1178 (9/8/86). In Green, Mr. Green gave a box of items to his attorney after Mr. Green had been engaged in an altercation that resulted in a shooting. Upon examining the contents of the box, the attorney discovered a gun. The attorney immediately turned over the box, including the gun, to the police. At trial, Mr. Green challenged the admissibility of the gun, arguing that it was subject to the attorney-client privilege. The Court disagreed, holding that the gun was not excludable by operation of the privilege because the attorney had an “obligation to turn over evidence which he reasonably believed to be material to the crime charged or to the investigation of a crime.” Green at 1182.

However, Rule 3.3(b) and the holding in Green do not contain a temporal element mandating disclosure within a particular time period. The Board concludes that Respondent’s actions under the unique facts of this case were reasonable. First, Respondent could not turn over the CPU to the prosecution when he first learned of it in December 2014 because he did not have possession of the CPU. ODC argues that Respondent had actual and constructive possession of the CPU on all three occasions Mr. Matthews brought the CPU to Respondent’s office. Brief of ODC (filed 1/23/18), p. 6. However, the fact the CPU was present in Respondent’s office in December 2014 and February 2015 does not prove Respondent had actual possession or otherwise exercised dominion or control of the CPU because his client was unwilling to release the CPU. The video was delivered to the prosecution five days after Mr. Matthews released the CPU to Mr. Marks, on March 9, 2015, and the CPU was delivered within six days, on March 10, 2015. That short delay is reasonable under the circumstances, especially given the fragile condition of the CPU, as noted above. ODC has not cited a law or rule that would require or give Respondent the right to physically seize evidence that was not in his possession, nor does the Board impose a duty here. In contrast, Respondent has cited persuasive authority that suggests having an expert examine the evidence for a short period of time is allowable and reasonable…

Upon learning of his client’s obstruction of justice, Respondent took reasonable remedial measures, by urging this client to disclose the evidence and, once the client agreed to relinquish the evidence, preserving the integrity of the evidence for the prosecution by means of expert examination. This entire process took less than three months and the evidence was delivered to the prosecution over two months ahead of the initial trial date. Accordingly, the Board adopts the Committee’s conclusion that Respondent did not violate Rules 3.4(c) and 3.3(b).

(Mike Frisch)