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
Nick,
Congratulations on a very impressive list of friends.
Perhaps you might now enlighten us as to how Mr. Capone’s oath as an officer of the court applies to this criminal charge brought under a statute which is generally applicable to anyone regardless of whether they hold a license to practice law or not. There do not appear to be any ethics complaints pending before the bar, nor do any contempt proceedings appear to have been initiated by the court.
Also, please explain how you were able to determine that a “clear” criminal violation of an oath of office occurred mere days after arraignment and before any substantive evidence has been taken or any guilty plea or allocution has been made.
Maybe those in the Big Leagues can make such determinations, but, when minor leaguers are confronted by a newspaper article stating that a detective said that a staffer said that a lawyer said something, they probably think about the telephone game and how important information is often lost between the first speaker and the final recipient – especially if that first speaker is an attorney and the remaining players are not.
The minor leaguers might also think about things like hearsay on hearsay on hearsay. They might think that, even if one level of hearsay is subject to an exception as an admission by a party opponent, the other two levels of hearsay render the final information unreliable and inadmissible in that form… in a fair trial.
That’s another thing about minor leaguers: they often want a fair trial to be held, evidence taken, and both sides heard before any “clear” determinations are made.
Guess they do things differently in the Big Leagues.
Perhaps when the US Supreme Court isn’t busy legislating from the bench they would be so kind as to create an immunity doctrine for defense counsel akin to the immunity doctrines the court didn’t legislate from the bench for prosecutors and law enforcement.
Nick & Paul:
Does every single post and reply need to be an opportunity to insert yet another lame “Dem Cultist” cheap shot?
Isaac nailed it. The Pittsburgh PD LIED in a matter before the court. I know Bill Clinton made lying a virtue for Dem cultists, but for the vast majority of people, lying is wrong and can be criminal. All attorneys are sworn in as officers of the court. the Pittsburgh PD clearly violated that oath in a matter before the court, in which he was appointed by the court. The SF matter was used as distraction. I have not, and will not, take the bait. I’ve been around too long.
Having worked in the justice system for close to 40 years now, I know MANY people. I actually know a woman who was a leading PD in Missouri. She handled the capital crimes cases. My friend met a barrister in the UK, married him, and moved to the UK, becoming a barrister. I get much info from her pertinent to matters such as this. I also have several other friends who were PD’s in Mo., Illinois, and Wisconsin, working criminal and civil cases in all 3 states. When someone lives and works in the minor leagues, they tend to be incredulous of people that have lived and worked in the big leagues. We call them “bushers..”
Also, my keyboard seems to be sticking. 🙁
You know…an ex post facto edit function wuld be helpful.
@ Darren Smith Sources say today that the public defender was released under California code allowing for insufficeint evidence of a crime…but police still insist they are investigating it as an active crime with a spokesmen saying “Time is on our side”. Her boss at the defender’s office is demanding an apology (fat chance that will happen).
This looks increasingly like a personal grudge match between the defender’s office and the police, and the police are using their badges and guns to (supposedly) intimidate lawyers. I don’t think it will work. Anything that comes out of the conversation the officers had with the suspect on anything at all will now be tainted (according to some other opinions I have seen) by the action of forcibly removing a lawyer from her client after she invoked attorney/client status.
Of course, IANAL. Geology and history dregrees here.
Annemarie Dickey,
I’m glad the attorney was released for lack of evidence since in my view that was apparent.
As for the police saying this is an active investigation: I have to say that is wishful thinking at best because I cannot see what further evidence they could discover in the matter. What my gut feeling on the matter is would be that they police want to hold the specter of arrest over the head of the attorney hoping to extract some form of pro-police benefit out of her. To me this is at the very least highly unethical and could be interpreted to be a malfeasance of office because it borders on a threat using barratry as the weapon.
There is also a matter, though I certainly cannot prove this, but it is also possible that the police saw that they made a great error in arresting the attorney and they are covering their backside to protect themselves from a false arrest tort, which in my view the attorney has cause to initiate if she chose.
With regard to the SF public defender’s arrest:
The video shown does of course not show the entire incident as I would say I would have preferred to see what happened in the time preceding the video so in that regard I will have to make an assumption–that the inspector declared to the attorney and her client that he was investigating a criminal offense and that he was conducting an official investigation. I have to make that assumption for reasons you will read later:
The inspector has a right to temporarily detain a person when he / she has reasonable suspicion that a person may have been involved in a crime. If that is the case, the inspector would have legal grounds to temporarily detain the client in a reasonable matter to collect information. The client has a right to refuse to talk to the inspector but does not have a right to not participate unless there is a matter of a search or other constitutional constraint in doing so.
I have to assume there would be more to the photographing than simply snapping an image of the person’s face while he stands in the hallway. The client is in a public place and the police could photograph him for any reason. But I must presume that there was a more detailed photograph session such as close ups and the like. However if the photography included something under the person’s outer clothing that might constitute a search and would be subject to constitutional constraints, warrants, etc.
Now for the arrest. The inspector claiming that he would arrest the attorney for “resisting arrest” is laughable and technically not a valid arrest because obviously there has to be a primary reason for an actual arrest before the elements of resisting arrest are satisfied. But if this was an error I assume the arrest was for Obstructing a Law Enforcement Officer.
I am not intimately familiar with California Case law but it is my view that that a conviction for this arrest is going to hinge on whether or not the attorney had actually obstructed the inspector. According to the video, she voiced her objection to the photographs. Whether or not she was correct the photos are not permitted in my view is not relevant to whether she was obstructing because the mere voicing of an objection to an action by the police is not sufficient to constitute obstructing a law enforcement officer.
The inspector had ample opportunity to direct his orders to the client standing against the wall. (who I assume was the target of the investigation) If the target of the investigation was at another location only known to the attorney and she prevented the police from locating him that would be another matter but I assume that this is not the case here. Anyway, back to the topic. The police could have simply bypassed her and told the person to submit to being photographed. The police made no attempt prior to the arrest in my view that was substantial. If the attorney had a legal objection to the photographs she could take it up with a judge in the form of an evidence hearing. The inspector should have known this.
From the information I have seen and again the video is my only source of information, I do not believe the state will be successful in convicting the attorney. It is probable this will never get to trial because I am not convinced there was probable cause to arrest.
In an analogy I will present a proper arrest scenario:
A deputy has a valid search warrant to obtain a medical record of a person who was a patient at a local hospital. The deputy goes to the hospital’s records department and talks to the person responsible for record keeping. The deputy shows the search warrant, introduces himself, and states that a judge has ordered her to produce this record. The records are stored in a file cabinet for which the records clerk has the key. The records clerk refuses to open the file cabinet for the deputy. the deputy asks her if someone else will open the file cabinet and she refuses to identify that person. The deputy has cause to arrest the clerk for obstructing because she hindered a judicial process willingly and knowingly.
Now in that same scenario the cabinet was unlocked and standing open after her refusal the deputy could have walked over to the file cabinet and retrieved the medical file even if the records clerk voiced her objection. There was no cause to arrest the records clerk because the deputy was easily able to retrieve the evidence pursuant to the warrant.
In both these examples, the records clerk objects but in the latter there was no arrest possible because the deputy could easily have obtained the data despite the objection. It is my view that this analogy is similar to the SF case so that is why I wouldn’t not have arrested the attorney, had it been my investigation.
Capone
Capone lied to the police. He saw his client that morning and he said he hadn’t seen him since the Friday before. Regardless of the results of the lie, a lie is a lie is a lie.
Isn’t that what the big fuss is all about in Washington? The means and the end.
Regarding SF
It seems this is one of those cases where the law/prosecutor failed to dot an i or cross a t. If the defense lawyer has an objection, until a legal manifesto/warrent/written authority is presented by the prosector, the lawyer acting in defense of her/his client should prevail, unless of course there are extraordinary circumstances that would necessitate action or established rules of engagement. In this case it was simply the prosecutor’s ego taking over. It was a pissing contest pure and simple. The prosecutor probably watched ‘The Good Wife’ on TV the night before where a high priced suit demeaned a prosecutor in front of the nation.
Paul,
Regarding those “liberal” police in San Francisco: Have you seen any of the Dirty Harry movies? The only liberal aspect of Clint Eastwood’s character was the gunfire 😉
@ Nick Spinelli Nick, You are punching a strawman wrt fiver, and I know you are usually better then that. The episode in San Fransisco was one I was going to put here merely out of timeliness as well as general interest to public defender issues. Neither case bears directly on the other. In any event, the police action in San Fransisco was outrageous and constitutes an assault on the ability of defense council to do their jobs.
Nick,
As you seem to have friends in pretty much every occupation where you desire to speak from authority, please explain how violation of a lawyer’s duties as an officer of the court applies here.
We’re talking about an arrest for a statutory violation, an alleged violation which in no way requires a license to practice law as a condition precedent. We’re not talking about a lawyer being held in contempt of court (either civil or criminal) nor are we addressing a bar complaint against an attorney.
So, according to your osmotic expertise, how is the lawyer’s status as an officer of the court in any way relevant to this criminal proceeding?
fiver – not those liberals in SF, they would never arrest a public defender. Clearly the video must be from someplace else. They would never deny a black defendant of a female public defender in SF.
fiver, The SF situation you inserted does not comport w/ the facts of the Pittsburgh PD in this post. You have a clear bias, evidenced by your two comments. Folks like you are why the officer of the court aspect has become almost archaic in our country. We get it, Prosecutors are evil and PD’s are saints. Lame.
Fiver, that was incredible. I hope she can sue for unlawful arrest.
I have good friends who were Public Defenders. I understand they are an important component of our criminal justice system. I also understand the actions of their clients can sometimes put them in tenuous positions. What JT fails to point out directly, that while this man has profound duties to protect attorney/client privilege, he is also an officer of the court. And, as an officer of the court, and equally important component of our justice system, he was in clear violation. This officer of the court aspect is something that I have seen eroded over time. It is much more sacred in the UK where a barrister would NEVER have deceived the court.
A Public Defender was arrested by San Francisco PD on Tuesday in the courthouse. Apparently, they wanted to photograph her client, and she said “No.” What lawyer wouldn’t? This wasn’t court ordered though it could easily have been if police presented proper cause. Her client doesn’t appear to be under arrest nor does there appear to even be cause for detention.
In other words: the lawyer was doing her job.
Right before they arrested her, a detective told her that if she didn’t allow her client to cooperate she would be “arrested for resisting arrest.” Yep. Do what we say or we’re going to arrest you for resisting arrest.
The police knew they were being recorded and yet proceeded anyway. Law enforcement has become so corrupted that they’re not even trying to apply a veneer of legality.
Even when they’re going after a lawyer doing her job.
Just wondering how many Pittsburgh prosecutors have been charged for concealing Brady material or witness tampering in bribing/threatening their snitches.
Actually, I’m not wondering at all.
Sounds like there is a little anger here on the part of the cops/prosecutors.
Plus a little intimidation (or better said, having a reputation for being a “hard man”) never hurts a prosecutor in setting the tome for future discussions with other defense attorneys.
Bet that defense attorneys will in the future give that prosecutor more deference.