South Carolina Criminal Defense Blog

Over the past few months I blogged about a Texas judge who signed a search warrant for defense attorney Keith Gore's office, bypassing a hearing that had been scheduled to determine whether the prosecution was entitled to evidence in a pending murder case or whether it was protected by attorney client privilege. Collin County District Judge Mark Rusch was subsequently recused from the case.

NBC5i.com reported that not only did Judge Rusch give the search warrant to prosecutors, pre-empting the hearing, but that the seized materials were then taken to the judge's home, where detectives say the judge not only reviewed the letters seized from attorney Gore's office, but also cut bar-coded tape to open a box, thereby placing himself in the chain of custody and potentially opening himself up to claims of evidence tampering:

According to court documents, the evidence seized from Gore's office was taken to Rusch's home instead of a crime lab.

A witness for Rusch acknowledged the judge inspected letters and documents and handled the box, but said the judge did not unseal the box.

But Frisco detectives said Rusch unsealed the box, which was closed with bar-coded tape, using a knife.

Hagen said the handling of evidence raises major chain of custody issues and directly implicates the judge in the investigation of Bell.

Those issues and information prosecutors may have learned about the case during the raid could lead to a dismissal of the charges against Bell, Hagen said.

"When you're talking about trying to stick a needle in their arm and kill a person, you better play by the rules," he said.

Video coverage is here.

Related posts:
Judge signs search warrant for attorney's files
50 lawyers showed up to support Texas lawyer whose office was searched by police
Judge who signed search warrants for attorney's office recused from murder case
Another attorney's office raided
Criminal defense lawyer's office searched in New Jersey

Doug Berman at Sentencing Law and Policy last week highlighted an Iowa district court opinion in which U.S. District Court Judge Mark Bennett reduced a defendant's sentence by 17 months as a remedy for prosecutorial misconduct.

The prosecution had entered into a plea agreement with the defendant where he was to plead to drug and weapons charges with a guidelines level of 25 after a downward departure of 3 levels for acceptance of responsibility. However, at the plea, in violation of their agreement, the prosecution argued that the defendant should instead be sentenced as a career offender, with an adjusted base level of 29 and criminal history category III, based on a prior DUI conviction. (The prosecution argued to the judge that the Defendant should be sentenced to significantly more time in prison than they had agreed to.)

Ultimately, the Court found that the prosecutor's breach of the plea agreement constituted prosecutorial misconduct, after which the case was sent to Judge Bennett to determine what, if any, the remedy should be.

The prosecution, now represented by a different Assistant United States Attorney, argued that, even if the violation of the plea agreement was “clear” or “blatant,” it was not in “bad faith,” and was more in the nature of a “technical” violation . . .

Judge Bennett, calling the prosecution's argument "frivolous and grossly inaccurate" and noting that this was not the first case of a prosecutors breach of a plea agreement in his district,

found that Dicus’s total offense level is 25 and that his criminal history category
is III, which results in an advisory United States Sentencing Guidelines range of 70 to 87
months

and sentenced the defendant to 70 months, the bottom end of the guidelines range. The judge noted that but for the misconduct he would have sentenced the defendant to the high end of the guidelines range due to aggravating factors such as the sale of drugs to minors by the defendant. The opinion reasoned that:

Granting no relief is also inappropriate, because it would do nothing to deter
prosecutorial misconduct or to give defendants an incentive to raise prosecutorial
misconduct claims. See, e.g., Sonja Starr,3 Sentence Reduction as a Remedy for
Prosecutorial Misconduct (hereinafter Starr, Sentence Reduction), 2 & n.10 (unpublished
draft, September 2, 2008; used by permission) (citing Guido Calabresi, The Exclusionary
Rule, 26 HARV. J.L. & PUB. POL’Y 111, 116-17 (2003), and Harry M. Caldwell and Carol
A. Chase, The Unruly Exclusionary Rule, 78 MARQ. L. REV. 45, 68-71 (1994), as
suggesting that the appropriate remedy for prosecutorial misconduct should be the
combination of direct sanctions against the police, such as fines, to deter misconduct, with
sentence reductions, to give defendants an incentive to raise misconduct claims).
Moreover, “[p]rosecutorial misconduct has been a widespread and widely criticized
23
problem in the U.S. criminal justice system for decades,” albeit one for which existing
remedies are ineffective, “largely because they are rarely invoked.” Id. at 4 & 1. For
example, as the Second Circuit Court of Appeals observed more than two decades ago,
“Given this Court’s unwillingness to use reversals as a means of disciplining prosecutors,
threats to do so seem unlikely to have much effect. As a practical matter, prosecutors
know that courts are reluctant to overturn convictions because of improper [conduct].”
United States v. Modica, 663 F.2d 1173, 1183 (2d Cir. 1981) (cited in Starr, Sentence
Reduction, at 13). The problem cannot continue to go unremedied by the courts, so that
some relief from prosecutorial misconduct is appropriate in this case.

The Court cites a paper by Professor Sonja Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, which advocates for the use of sentence reduction as a remedy for prosecutorial misconduct. The reasoning is that the current remedies, reversal of a conviction or dismissal of charges, are never granted by courts and therefore there is no real deterrence.

Starr and Judge Bennett have a point - Courts rarely grant reversals, dismissals, or suppression as a consequence of prosecutorial misconduct. Prosecutors are rarely disciplined for ethics violations, and they are all but immune from civil liability or prosecution themselves. I don't believe that sentence reductions will serve as an effective deterrent, however. I believe that all of the above would be the better deterrence for prosecutorial misconduct, such as Brady violations that can and do lead to wrongful convictions, but seeing as how none of that is happening, perhaps we need to start somewhere.

This story highlights some of the damnable ethical dilemmas that attorneys, in particular criminal defense lawyers, often face. In 1999, Florida lawyer Jay Hebert's client told him that she had helped to bury the body of a missing real estate agent. Her boyfriend at the time had murdered his wife, the real estate agent, and she helped to dispose of the body.

For nine years Hebert lived with this knowledge, as his client refused to come forward and he was bound by attorney client privilege not to reveal the information revealed to him in confidence. The client finally decided to talk, after Hebert negotiated a deal for her immunity in exchange for the information, the body has been found, and the (now ex I presume) boyfriend has been charged with first degree murder.

The attorney client privilege is an ethical rule that is inviolate. Most lawyers, myself included, have clients' secrets that we will carry to our graves. Blogger Jon Katz recently commented on client's families who insist on being present during meetings, and how he deals with this. The issue is that whenever a third person is in the room, technically there is no attorney client privilege. That third person can reveal what was said, and hypothetically a judge could then force the attorney to reveal those confidences.

The way I deal with this is to sit down first with the client and his or her family, explain to the family that I will be glad to discuss procedural matters with them or how things are looking in general, but when it comes to the details of what my client tells me, that is between them. If it is a parent, I encourage my client to be honest with them about what happened, but I cannot tell them what my client reveals to me and once we begin discussing details of the alleged crime everyone but my client must leave the room. Although some have not liked this, I have never had to refuse to accept a client or have one leave because of it.

Attorney client confidentiality, like the priest-penitent privilege, is essential because without it clients would not be able to speak freely with their counsel. I believe that to do the best that I can for a client I need them to be able to trust me with the truth about their case without fear of being sold down the river to the government.

From Grits for Breakfast: On September 9, the Texas Court of Criminal Appeals stayed the execution of death row inmate Charles Hood, saying that it will reconsider the propriety of jury instructions in a claim that the Court had rejected last year.

Hood's attorneys asked the Court to stay the execution based on the revelations that Hood's trial judge was sleeping with the prosecutor in his case, but instead the Court dodged the issue and based its stay on the previously denied issue of improper jury instructions.

For some time, the trial judge and prosecutor had refused to answer questions about their undisclosed relationship during the time of Hood's trial, but after Hood's attorneys filed a civil suit seeking damages and a district judge ordered them to submit to depositions, they admitted the affair.

Despite the admission of a sexual relationship between judge and prosecutor, which seems would be an obvious denial of the right to a fair trial before an unbiased tribunal, a letter to the governor from 22 former judges and prosecutors, and the attorney general's request that the matter be looked into, the Texas Court of Criminal Appeals held that the claim of impropriety came too late, instead ordering the stay based on new developments in the law on jury nullification instructions.

Grits points out that the new development in the law of jury nullification instructions is a 2007 U.S. Supreme Court case Smith v. Texas, which came before the appeal was denied in Hood's case in June of 2008. Therefore, the Court gave the go-ahead for the execution despite U.S. Supreme Court precedent on jury instructions at the time. The politics of state-sponsored killings in Texas is truly a marvel.

In the third search of a criminal defense lawyer's office since spring, a federal judge in New Jersey is allowing prosecutors to review computer records seized from a criminal defense lawyer's office, including the files of clients who were not targets of the search.

A federal magistrate signed the search warrant, which allowed the seizure of all computer hardware and electronic storage devices from the defense attorney's office, and the attorney's request for a preliminary injunction was denied by U.S. District Judge Robert Kugler. If the defense attorney was a valid target of the investigation - the FBI's affidavit did state "Manno was using computers in furtherance of alleged criminal activity" - then a focused search for specific evidence of crime may be justified, but an all inclusive sweep of all of the attorney's files without regard for attorney-client privilege cannot be justified.

West Virginia defense attorney John Bryan puts this practice into perspective:

It is sickening to see that there are prosecutors out there who would go between different judges to get an illegal search warrant of an attorney’s office. If that is legal, then I would like to see a mechanism put in place whereby the lawyers of criminal defendants can obtain their own search warrants to be executed on prosecutor’s office. Say, for instance, that you know a certain prosecutor has a video tape that would exculpate your client. He refuses to hand it over, or to even acknowledge it. You could get a search warrant and have your private investigator execute the warrant and look for the tape. Yeah right. That’ll be the day. The sad fact is, that prosecutors are perfectly willing and able to abuse their power and not only will many judges not stop them, some of them apparently will help.

The judge in this case apparently has approved the review of materials by a "taint team" in order to determine what material is covered by the warrant before it gets to the prosecutor. Last I checked, attorney-client privilege did not apply only to prosecutors - with limited exceptions it applies to everyone who is not attorney or client. This practice, in any situation other than where there is probable cause that a defense attorney is himself engaging in criminal activity and the search is specific and focused so as not to violate attorney-client privilege, is an abuse of process. To see these kind of tactics sanctioned by judges makes it that much worse.

Via Grits and Tex Parte Blog, Collin County District Judge Mark Rusch has been recused from hearing a capital murder case, after signing search warrants for defense attorney Keith Gore's office.

Despite a hearing being scheduled to determine whether the prosecution was entitled to the items they sought, the prosecution sought and obtained a search warrant from Judge Rusch to enter Gore's office and search for a pair of boots and letters that the defendant had written to his wife. The boots were not found in the office, but the letters were taken by the police. From Tex Parte:

The boots were not found, according to a motion the DA’s office filed in the case, but letters and a shoe box were. “We’re pleased with it, and we think it vindicates what we’ve been saying all along: that Keith Gore did absolutely nothing wrong,” Miears says. “And we’re disappointed that the Collin County DA’s Office would put a district judge in the position of having to issue an illegal search warrant of a lawyer’s office.” Collin County assistant district attorney John Rolater, who represented his office during the recusal hearing, declines comment.

There are different ways to conduct interviews, depending on what you want to achieve in the interview. In law schools they usually offer a class on interviewing which teaches, among other things, how to get the most accurate and truthful information from an interview. You begin with broad, open ended questions, who, what, when, where, why, and how, allowing the subject to speak freely and not limiting their responses. Further along into the interview you may narrow the scope of your questions, to focus on what you have identified as the important issues, the topics you want to know more about, or the subject matter that they left out.

If you are seeking the truth, the above method is without a doubt the most reliable. On the other hand, if you are seeking only to verify what you already believe to be true or if you are seeking to make the subject say what you want them to say, you would use more coercive methods, such as the Reid technique or variations thereof that are taught to law enforcement.

In preparation for a murder trial, recently I interviewed a witness. There were times during the interview where I told them what others had said and asked them to confirm or deny, but for the most part I tried to just ask them to tell me what had happened and what they knew. Most of what I was told confirmed what I already knew from other witnesses, and I didn't have to trick the person, lie to them, or scare them into telling the truth. After this, I was reviewing a typical police interview of a witness in the same case, where the investigators were convinced they had everything figured out.

In the beginning of the interview, they tell the subject that they already know everything and there is nothing that the subject can tell them that they don't already know. They only want the subject to listen and they are going to tell him what happened. They then proceed to tell the subject what they want him to say, in great detail. When the subject tells them that they are wrong, and tries to tell them what actually happened, he is told he is lying. They then tell him that they know he is lying because A, B, and C have already told them what the subject's involvement was. I know that A, B, nor C ever spoke to the police about this case.

They tell the subject that A is telling them that the subject is the "ringleader" and that A is laying all the blame on him. They tell the subject that if he does not clear the air he is going to have to take the fall. They tell him that A is saying it happened this way _________. But, the truth is, if it happened this other way __________ they can understand that, it's alright. Scenario number 2 is not nearly so bad as what A is trying to pin on him (but admitting to scenario number 2 would in fact be a confession to a crime). They also want him to tell them what they want to hear about A's involvement. They tell him they are going to be there for days if he does not say what they want him to say.

The subject continues to deny what they are saying, and repeatedly tells them he is not going to lie. At one point, he asks what they want him to say. The response is, I want you to say that A did this. The subject says I am not going to lie, and the cop's response is it's not a lie, because I know A did this.

The end result in this particular interview was that the interrogators lost control of the interview, lost all credibility with the subject, and he did not tell them what they wanted to hear. They did not keep him in the interrogation room for days, and he did not succumb to the pressure. But watching these interviews it is easy to see how police when applying these techniques can and do obtain false confessions from people. Persuade the subject that they are not leaving that room until they say what the police want them to. That there is overwhelming evidence proving what the subject knows is not true. That things will go easy on him if he just says what the police want him to. That if he does not say what the police want him to things will get much harder.

What occurs to me is the difference between my interviews and police interviews. What would happen if I interrogated a prosecution witness in the same manner that the police interrogated this guy, and the prosecutor got his hands on the video? When the police twist interviews to make witnesses or future defendants admit whatever facts support their case, provided Miranda rights are read, usually whatever is said is admissible at trial and the jury will overlook or not care about the methods used. It is called good police work. If a defense attorney were to use these same methods to twist the truth I am sure that it would be called obstruction of justice.

Marina Tylo has filed a defamation suit against blogger Andrew Bluestone at the New York Attorney Malpractice Blog, for reporting in September of last year that she was sued for malpractice. In her complaint, provided here by Simple Justice, she asks for the sum of $10,000,000.00 in damages and a retraction.

The offending text she cites in her complaint is:

Here is the full text cite for a legal malpractice case in which plaintiff's attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07,

which is text that prefaces language from the court's decision in her case. A copy of the webpage is attached as "Exhibit A." The lawsuit alleges that the above text constitutes "libel, gross negligence, negligence, intentional infliction of emotional distress, [and] tortious interference with prospective contractual relations."

As Simple Justice points out, this ridiculous effort by Tylo to silence a blogger will end up earning her much more bad press than the one small post on Bluestone's malpractice blog did:

And if the rest of the blawgosphere feels similarly, then let's make sure that those inclined to try to use the courts to shut blawgers down and keep lawyers' screw-up as their dirty little secret, learn that such vapid efforts to undermine speech in the blawgosphere is going to backfire on them. Perhaps Tylo will regret her decision to try to silence Bluestone as her misbegotten effort spreads across the internet.

Mike at Crime and Federalism says:

Is that how someone protects her reputation? By suing a law blogger? Really? Who advised Ms. Tylo that filing the lawsuit was a good idea? She should sue her lawyer for malpractice.
Oh, wait. According to the summons that Mr. Greenfield helpfully posted, Ms. Tylo filed the lawsuit pro se, that is, on her own behalf. She's literally her own lawyer.

I see that a google search for "Marina Tylo" brings up activerain real estate network first (which I hope is a bad joke, as it shows a terribly unprofessional profile filled with typos and bad grammer), followed by many blawgs with commentary on her lawsuit. Several begin with "Brooklyn lawyer Marina Tylo deserves a good spanking."

More from Eric Turkewitz, Mark Bennett, Crime and Federalism.

From Fourth Amendment.com:

Last month federal agents executed a search warrant on the office of lawyer George Argie in Cleveland, Ohio, seeking information about one of his clients. The warrant was one of many issued as part of a federal investigation into corruption by Cuyahoga County officials:

Investigators are examining whether Cuyahoga County Commissioner Jimmy Dimora and Auditor Frank Russo steered the construction contracts to businesses that provided free improvements to their homes . . . agents want to know whether Dimora and Russo offered jobs in exchange for favors or used their influence in judicial proceedings, decision-making at the top levels of county government and determinations of how much taxes people and companies should pay.

The agents that searched Argie's office took items related only to his work with one of his clients who is under investigation, and Argie was served with a grand jury subpoena to produce additional documents.

Argie says he does not think he is a target; they only wanted information regarding his representation of his client. My question is, if Argie is not a target, how in the hell does a judge sign a search warrant allowing law enforcement to go through his files? One of the first things that we learn regarding the attorney - client privilege is that it is sacrosanct. If a client's confidences cannot be maintained, clients will not be able to confide in their attorneys, and they are denied effective representation.

The appropriate method of obtaining information from an attorney's files is through subpoena, which the attorney can move to quash, providing for a hearing before an impartial judge who can review the materials in camera if necessary to determine if attorney-client privilege applies. Law enforcement cannot walk into lawyer's offices, search through clients' files, and take what they want (as they did in Keith Gore's office in Texas).

If George Argie is the target of a valid investigation, then a search warrant for his office may be justified. If Argie's client waived the attorney client privilege, then Argie can turn over his client's information and a search warrant would not have been necessary. But if Argie was not a target and his client did not consent, this is a serious problem - law enforcement cannot bypass judicial review and ignore attorney client privilege in their search for evidence.

Last month, I posted about Texas lawyer Keith Gore, whose office and files were searched by the police for evidence in his client's murder case. The prosecutors wanted evidence which was in Gore's possession, and a hearing had been scheduled to determine whether Gore was required to turn it over or whether it was privileged.

Instead of waiting for the hearing, the prosecution sought and received a search warrant from a different judge, searched Gore's office, and seized the materials. At a hearing last week, on motions by the defense to recuse the judge who had signed the search warrant and motions by the prosecutor to recuse the defense attorney, 50 attorneys packed the courtroom in support of Gore, including the president of the Texas Criminal Defense Lawyer's Association which has filed an amicus brief in the case.

"It's a tremendous concern regarding the government's ability to raid a lawyer's office," Rick Hagen, a partner in Denton's Jackson & Hagen who is president of the Texas Criminal Defense Lawyers Association, says in an interview. Hagen attended the recusal motion hearing Aug. 5 and filed an amicus brief on behalf of TCDLA with the 401st District Court in Texas v. Bell, arguing that the search violated the Fourth and 14th Amendments of the U.S. Constitution. "And you've got to understand this is not a case where Keith Gore is accused of any wrongdoing whatsoever."

Judge Larry Hyman ordered a mistrial yesterday in a child sexual abuse case after an assistant solicitor told the jury that the defendant had "failed" a polygraph. For the layperson, due to the unreliability of polygraphs their results are never admissible in court, and this is not an obscure point of law that lawyers are usually confused about.

"The case will be tried again later this year, said [the Assistant Solicitor]." Well, unless a retrial is barred by double jeopardy as a result of the state's attorney causing the mistrial. The prosecutor went on to explain to the judge "that she could inquire about the conversation because Williams took the test voluntarily before he was arrested in the case," and informed the judge that there was case law, although she was not able to produce it.

Many assistant solicitors in this county begin by prosecuting in the magistrate court. When they get some experience trying cases, they then move up to General Sessions where they take on bigger cases. I'm going to go out on a limb here and say that, while in the magistrate court, assistant solicitors learn bad habits. For example, they learn that many times some magistrates will rule in their favor no matter what their argument is, and so they will make ridiculous arguments in trial that have no basis in law.

This particular attorney recently moved up from the magistrate court division - possibly she did not realize that this does not work in the circuit court, where the law is really the law and the judges are also attorneys.

Chief U.S. District Judge Curtis L. Collier has issued a ruling in response to Herbert Moncier's motion requesting a clarification of the judge's prior ruling, as to whether Moncier's suspension prohibits another attorney in his office from appearing on behalf of clients in Federal Court. Collier has essentially ordered that attorney David Wigler is also banned from federal practice, as long as Wigler works for Moncier.

Moncier was suspended from federal practice for zealous representation of his clients - after he was held in contempt of court for requesting to speak to a client whom a federal judge was questioning, in court with law enforcement and the prosecution present. Moncier has appealed his suspension.

Collier also ordered that Moncier is not to be present in the courtroom during proceedings in his clients' cases, accompany federal attorneys to court, sit with federal attorneys in the courthouse, or talk to any other federal attorneys about federal cases.

An Arizona prosecutor/ county attorney is under investigation by the State Bar for numerous complaints, including allegations of:

1) inflammatory public statements to the press about defendants;
2) allowing non-lawyers to act as lawyers;
3) seeking to recuse a judge from all county cases; and
3) ex parte communication with another judge.

The county attorney has filed a petition with the Az supreme court, asking that the disciplinary committee stop investigating him, claiming "executive immunity" among other things.

In the brief the Bar states that “A lawyer who happens to be an elected public officer…cannot simply opt out of the lawyer-regulatory system claiming the privilege of his elected office.”

The LA Times released a story two days ago which raises new questions about the reliability of DNA evidence in court. Well, what strikes me about this story is not the reliability of DNA evidence so much as the ethics of the FBI.

Government experts routinely explain to juries how certain a DNA match is, although I hear different numbers each time. Pick a random number that is too big for the brain to comprehend; one in that number is the odds of another DNA match occurring. I in 113 billion. 1 in 100 billion. 1 in 108 trillion. 1 in 1 quadrillion. FBI experts have testified that certain DNA profiles are unique, to a reasonable degree of certainty.

The problem is, FBI analysts have never tested 100 billion, trillion, or quadrillion DNA samples and looked for matches. They are giving their best guess, and undoubtedly the need to obtain convictions transforms a "best guess" into a "reasonable degree of certainty."

In the 1990s, FBI scientists estimated the rarity of each genetic marker by extrapolating from sample populations of a few hundred people from various ethnic or racial groups. The estimates for each marker are multiplied across all 13 loci to come up with a rarity estimate for the entire profile.

However, the growing number of samples contained in state DNA databases is making real research into DNA matches possible. An Arizona crime lab analyst began finding dozens of DNA matches in the state database. Court ordered searches in two states found 1000 pairs that matched (9 of 13 points matching). A court ordered search in an Arizona case found 122 matches in 65,000 samples tested.

The odds that the new searches indicate are still substantial, and likely are still not only admissible but persuasive in court. The ever growing DNA databases offer new unique opportunities for research that may benefit not only the court systems but the sciences as well. And yet, rather than open up the DNA databases for testing, or even conduct their own testing, the FBI went on a campaign to prevent any such tests.

They threatened state labs who complied with court orders to conduct the tests. They schemed to figure out ways to trick judges into not granting defense counsels' requests for testing. They told judges that they would cut off state labs from the national databases if the courts ordered the tests, and consulted experts who would explain to judges that the tests were not scientific and not necessary. They argued that the tests would violate the privacy rights of convicted felons and that they would result in the systems being overloaded and shut down. They argued that, under federal law, the databases were exclusively for the use of law enforcement agencies and not defense lawyers.

Why not run the tests, get accurate probabilities based on real numbers, and tell the truth to juries? The probabilities are surely going to be impressive even if they are not as ridiculously large as the FBI has been claiming. I doubt that it will result in more acquittals. To me this story was not about the revelation of finding DNA matches so much as the FBI's attempt to hide the truth and preserve their inflated estimates. I hope that this national discussion sparked by the Times' story leads to more research and testing in the area of DNA analysis, free from the prosecutorial bias and scientific repression of the FBI.

Judge Mark Rusch in Frisco Texas signed a search warrant authorizing police to search defense attorney Mark Gore's files, seeking items and letters written from his client to his client's wife. A hearing was scheduled in four days before a judge to determine whether the information was subject to privilege and if the police were entitled to it, and yet the prosecution sought Rusch's aid in obtaining the information before the hearing was held.

What is wrong with this?
1) Instead of waiting for a judicial determination, the police and prosecution seek a search warrant to go through the defense's file and take what they want.
2) A judge actually signed an ex parte search warrant, knowing that a hearing on the matter had been scheduled where both sides could be heard.
3) As noted by Simple Justice, In order to find the information they were looking for, agents of the prosecution went through the defendant's entire file, and most likely compromised other privileged case files as well.

The prosecutor is seeking to disqualify the defense attorney from the case so he can call him as a witness. The Texas and the National Associations of Criminal Defense Lawyers have gotten involved in the case and are assisting the defense attorney. The defense attorney has been forced to retain his own attorney in the matter, is moving to recuse the judge that signed the search warrant, and is moving for the return of and to exclude from trial all materials that were seized from his office.

This appears to be an example of dirty prosecution pool at its worst. The prosecution and Judge Rusch have violated Gore's client's Sixth Amendment right to counsel, violated Gore's Fourth Amendment right to freedom from unreasonable search and seizure, and subverted justice by placing the items in the prosecutor's hands before a judicial determination of the prosecution's right to have them. If you are the law and you want something, take it. Want to peek in defense counsel's files? Get a search warrant.

I sincerely hope that more information comes to light that could somehow justify the DA's and judge's actions in this case.