There is an interesting case out of Pittsburgh public defender Andrew Capone, 29, has been criminally charged for allegedly given inaccurate information to a judge’s staff about whether his client had appeared for trial in a sex assault case. The case is troubling because, based on what has been released, it is difficult to see where the line was drawn between criminal and noncriminal conduct for counsel.

Capone represented Jeffrey Derosky, 44, who was charged by Allegheny County police with sexually assaulting a child and other crimes. Derosky was scheduled to go to trial Jan. 12th.

A detective alleged that Capone told a staff member for Judge Donna Jo McDaniel that Derosky “had not appeared at court.” Court staff said that Capone asked several times that day whether his client had checked in and stated that “the last time he saw his client was when they met on the Friday before the trial.” Capone tracked down Derosky’s girlfriend, Karen Blystone, 57, who told him that she and Derosky went to the courthouse the morning of his trial and met with Capone, who told them the Allegheny County district attorney’s office was offering him a plea deal. The deal would have sent him away for five to 10 years in prison. The detective reported that “Karen Blystone stated that Jeffrey Derosky informed Andrew Capone that he needed time to think about it and would get back to him.” They left even though she said that “she knew that a criminal bench warrant would be issued.” She ended up leaving Derosky at an closed hotel bar.

The detective then went back to the court and questioned the staff and Capone again. When confronted with the statements from Ms. Blystone, he said that Capone said he “was unsure how to answer that question and believe that it would violate attorney/client privilege.” He said that Capone admitted that Derosky and Blystone had come to court for the trial and was told about the deal but that Derosky then cursed and said, “I’m out of here.” Capone said that he went to another courtroom and when he returned about 10 minutes later, Derosky was gone. Derosky was later found in a motel in Parkersburg, West Virginia dead from a self-inflicted gunshot.

The sheriff’s office arrested both Bystone and Capone. Bystone was charged with hindering apprehension and obstructing the administration of law. Her role seems limited and many prosecutors would not have charged on these facts in my opinion. However, there is clearly a violation of the law quoted below.

However, it is the charge against Capone that is the most curious. Capone is described as giving “inaccurate information.” The relevant state law appears to be this:

§ 5105. Hindering apprehension or prosecution.
(a) Offense defined.–A person commits an offense if, with
intent to hinder the apprehension, prosecution, conviction or
punishment of another for crime or violation of the terms of
probation, parole, intermediate punishment or Accelerated
Rehabilitative Disposition, he:
(1) harbors or conceals the other;
(2) provides or aids in providing a weapon,
transportation, disguise or other means of avoiding
apprehension or effecting escape;
(3) conceals or destroys evidence of the crime, or
tampers with a witness, informant, document or other source
of information, regardless of its admissibility in evidence;
(4) warns the other of impending discovery or
apprehension, except that this paragraph does not apply to a
warning given in connection with an effort to bring another
into compliance with law; or
(5) provides false information to a law enforcement
officer.

The problem is that criminal defense attorneys are often in difficult positions in revealing incriminating information about their clients, particularly if they are asked to speculate as to their movements. There may be more to this case, but on this record the charge raises serious concerns over where the line is drawn in such communications. Clearly, it was not accurate to say that he had not seen his client. However, that may have been a poorly crafted way of saying that he did not know where his client might be. It was possible that his client would change his mind and return. There is no indication that Capone knew the plans of his client. Many clients react badly to plea offers but later change their minds. I have discussed such deals with clients and I always give them space and time alone to work through the initial anger or fears when confronted with a plea involving jail time.

The concern is that this record is not sufficiently clear to punish counsel based on privileged communications. Criminal defense counsel are often effective in bringing clients to court and secure plea agreements. They are not the turnkeys of their clients. Unless there is more, these facts do not make Capone sound like Saul Goodman.

What do you think?

Source: Post Gazette