I think the concern is that the lawyers are being used as unwitting conduits of information between various terrorists.
But frankly, I think the real value of this is dubious, because once the terrorists know that their communication is being monitored they’ll just stop using overt techniques. Certainly, the potential benefit is way out of whack with the potential for abuse. This will have a chilling effect on the ability of lawyers to mount effective defenses for their clients.
Then we’d better do away with the right to trial too, right? After all, the terrorists could pass on information or orders to their colleagues while they’re on the stand, right? In fact, let’s just immediately execute everone we arrest because they might still be able to communicate with people who haven’t been jailed.
I wonder if someone can explain what the big deal of this is? I can imagine that if the actual prosecutors are listening in to the conversations, it might cause a problem in strategy for even an innocent defendant. But if it is only the feds looking for information about other crimes, and the information will not be used in prosecution, then an innocent defendant has nothing to fear (or not a whole lot, anyway).
I am not taking a position on the constitutionality of this. I’m just asking why people feel it has such a chilling effect on freedom.
Can I copy and paste this thread onto my Criminal Procedure’s final next month?
I’m only sorta kidding…
This was touched on lightly near the begining, but I’d like to bring it up again. Even if suspects can’t have their statements used against them while talking to their lawyer, can their statements be used against someone they implicate? If suspects know that they’re being monitored, won’t it make it more likely for them to accuse someone else while they’re talking in the hopes that the police start looking elsewhere for terrorists?
Oh sure, it’s hearsay in a court of law. Oh sure, it can’t be that credible when one person points the finger at someone else. Oh sure, they’ll need more than just that person’s word to make a charge stick. But if they’re already at the point of needing to monitor attorney/client communications, just how desperate do you think they are?
treis - what do you have to say about use immunity, then, and prosecuting someone who has previously testified under a grant thereof?
By the way, treis, “the law” here is not just the text of the Sixth Amendment. We know what the Fifth Amendment says, but in order to discuss its application, we must know Miranda, Escobedo and Edwards. You cannot read the Fifth Amendment and divine the requirement, for example, that an accused must be told of his right to an attorney for his confession to be admissible. You can read the Sixth Amendment all you like, but does it tell you specifically what an appellant must prove to be awarded a new trial based on ineffective assistance of counsel? No - you need to know Strickland for that.
So when I asked if you knew “the law,” I was suggesting your comments showed that you did not. Your comments all go to what you’d like the law to be, or what strikes you as a reasonable interpretation of the Sixth Amendment - not an actual statement of the current law.
The question I ask above is a clear indication of this. You suggest that once the government has information, they can’t pursuade you they wouldn’t use it. But that problem arises pre-Ashcroft. Why is the extant procedure inapplicable here?
And if you don’t know, why are you criticizing this current plan?
Lets take it easy here minty green. The real question is what argument will persuade a Federal Judge, and maybe ultimately the Sup Ct., that the eavesdropping rule is unlawful since it seems to apply to all federal prisoners, convicted, pre-trial, material witnesses and people detained by the INS with a view to deportation. To the extent these people have a Constitutional or statutory right to be represented by a lawyer, it seems to me that there is a fair argument that the AG’s eavesdropping rule effectively undercuts legal representation and therefore runs afoul of either the Constitutional mandate for criminal defendants or the Congressional mandate for the others.
What you do with those poor souls who are held as material witnesses, I don’t know. As I understand it, they have no particular right to anything except to be free of torture. The only thing I see is that even a material witness is not to be deprived of life, LIBERTY or property without due process of law (5th Amend). It may well be that the proceedings that led to the order to hold them as a material witness may be the only process there is. If so, it is damned skimpy process.
It would still be admissible, though, under the “in the course of/in furtherance of a criminal conspiracy” exception.
Just so there’s no confusion here, that’s pretty much exactly my position–with the added provisos that: (1) if the suspect’s lawyer is participating in criminal activity, such “representation” is well outside the scope of the constitutional guarantees of assistance of counsel, and (2) if there is probable cause of (1), then the government can obtain a search warrant authorizing investigators to eavesdrop on those conversations.
What disgusts me is Ashcroft’s transparent attempt to eliminate the constitutional requirement of a search warrant. It’s almost as if the AG had announced they were going to search any home they damn well pleased, whenever they felt like it, and without even a pretense of a search warrant, but it’s all perfectly legal because they promise not to use anything they find in court.
Are you sure about that? Conspiracy ends when the police show up because there is no “furtherance of.” Arrest stops the conspiracy.
Besides, the main issue is not whether there really is a conspiracy, but whether suspected terrorists can use these eavesdropping techniques to their benefit by shifting the blame to someone else.
I was presuming that the detainee’s statements were being made for the purposes of getting information to fellow conspirators. It’s not necessarily true that a conspiracy ends with arrest, although that usually puts an end to the purpose of the conspiracy.
Not true. A conspiracy is simply an agreement between two or more people to commit an act prohibited by law. Acts in furtherence of that agreement, or of the ultimate illegal act, can continue from custody. Indeed, they can even be initiated from custody. If two prisoners in the back of a police car agree to help each other escape, that’s conspiracy. If a prisoner in custody has a previous agreement to place an ad in the New York Times to signal the commencement of anthrax poisoning, and he uses his one phone call from jail to place the ad… that’s a substantial act in furtherence of a conspiracy.
Bricker,
I am saying the law goes agianst the ideals laid out by the Founding Fathers in the constitution.
You’re right Pre-Ashcroft they could not use attorney-client conversations or information gleaned from them. What I am saying is that this opens a much larger possibilty of them obtaining said information and this potentially could be a problem.
I guess not.
I find the intentional violation of constitutionally guaranteed rights and liberties to be a big deal, Izzy. Apparently, you do not. Difference of opinion, I guess.
treis - according to the Founding Fathers, if you could not afford an attorney, you were out of luck. The rule that the government had to provide an attorney if you could not afford one came well after the Founding Fathers.
I’m not so sure this eavesdropping, then, was against their ideals.
I absolutely agree that this presents some evidentiary challenges - and more importantly, it goes against the spirit of what the Sixth Amendment guarantee is interpreted to mean today.
What kind of bugs me, treis, is the way you make sweeping statements about the way the law is right now - or, indeed, at the time of the Founding Fathers - that are wrong in detail. Your outrage and sentiment is right on track, but when you make statements about the law forbidding this or permitting that, without being sure of the details, it doesn’t help the cause of persuasion… as well as being out of place on a board with this particular mission.
Another possiblity is that you may have failed to read the post that I was re-quoting. In it, I specified that my question was independent of the Constitutionality of the issue. IOW, if it were theoretically constitutional, why would it be a bad thing?
Because it negatively impacts–perhaps fatally so–the attorney-client relationship and the ability of the accused to receive adequate representation.
How is this so, if the defendant is innocent and the information is not shared with the prosecutors?
First, assure me that you are not asking rhetorical questions, as I strongly suspect you are. If you have a position to debate, sir, get to the point.
Second, amend your inquiry to eliminate references to a suspect’s guilt or innocence. Procedural safeguards apply equally to all, for patently obvious reasons.