Thursday, January 17, 2008

United States v. Toy

CAAF decided yesterday that MRE 317(a)'s suppression of evidence gathered in violation of laws applicable to members of the armed forces does not extend to evidence gathered in violation of state law.

The issue before CAAF was different from the issue decided by CCA. Before the lower court, Toy argued that two recordings--one made without his knowledge and one made without his consent, in violation of Hawaii state law--should have been suppressed under 18 U.S.C. § 2511, the federal wiretapping law. This law essentially provides for the admission of recorded conversations as long as at least one party consented to the recording, unless the party making the recording acts with a purpose to violate state law or to commit a tortious act. Of course, federal law controls the admissibility of evidence in a federal tribunal. But since the federal law itself seemed in this instance to incorporate state law in this respect, Toy argued to the CCA that a recording made in violation of Hawaii's two-party consent law was inadmissible under federal law as well. The trial judge and CCA rejected this argument.

At CAAF, appellant decided to retool the argument. Since M.R.E. 317 excludes evidence that must be suppressed under the Constitution and statutes applicable to members of the armed forces, Toy argued that the more restrictive Hawaii wiretap law required suppression independent of the operation of 18 U.S.C. § 2511, or any other federal law for that matter. After all, Toy argued, the Hawaii law is in fact a statute applicable to members of the armed forces, at least the ones in Hawaii.

CAAF was having none of it, and dispatched appellant's arguments for essentially the same reasons CCA dispatched the first argument. Federal law governs the admissibility of evidence in courts-martial, end of story. And just in case anyone thought that the first argument was still twitching after the court took care of the new argument, Judge Baker administers a dicta double-tap at the end of the opinion affirming NMCCA's handling of the first theory.

I should add that I was Toy's counsel at CCA and then the IMC at a sentencing rehearing. I am usually "reasonably available" for IMC to cases in Hawaii, in case anyone was wondering.

15 comments:

No Man said...

Well put Klipper, double tap theories seem to be prevalent amongst former 45ers. I'd like to add that I can be hired as civilian counsel for the very same Hawaii courts martial at a discounted rate. Just email to noman@caaflog.com.

Anonymous said...

Does discussing a particular client's cases on CAAFlog violate the ethical rule on disclosing client secrets?

Jason Grover said...

I note that nobody is buying any triple tap theories.

Jason Grover said...

Anonymous,
Is there anything in Klipper's post that looks like it might be a confidence or client secret. I would agree, nobody should disclose client secrets in a blog, but I don't think Klipper even got close.

CAAFlog said...

I concur with the Super Muppet's point. The obvious answer to anonymous's question whether discussing a particular client's case on CAAFlog violates the ethical rule on disclosing client secrets is: not unless the lawyer reveals client confidences.

Rule 1.6 would appear to govern this situation regardless of whether the lawyer is writing on a blog, speaking to a reporter from the National Law Journal, appearing on the Nancy Grace show, or shouting from a bench in Lafayette Square. There is no special ruling for blogging. A lawyer can't disclose client confidences. See ABA Model Rule of Professional Conduct 1.6. The Kabul Klipper didn't. Discussing a case in a public forum without revealing client confidences is not forbidden (unless, of course, the lawyer violates some other rule, such as 3.6, in the process). The Kabul Klipper's comments were not otherwise ethically forbidden. They were, therefore, ethical, appropriate, and welcome.

Anonymous said...

Oddly enough, the state bar association I belong to disagrees, opining that discussing a particular client's case in a law review article for example, limiting oneself to the facts discussed in a published court opinion, violates the rule on secrets, absent the client's consent. I personally disagree with this, but they are adamant that anything learned in the respresenation of a client, even if known by others, constitutes a secret.

Jason Grover said...

Can you tell us which state?

CAAFlog said...

Anon, like the Super Muppet of Appellate Advocacy, I'd be interested in knowing which state's bar takes that position. It seems to me that a member of the bar would have a very strong case under Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), that the bar's position is an unconstitutional infringement on the lawyer's First Amendment rights.

Anonymous said...

This is dumb and anonymous is full of it. Do we need Jane Roe's permission to discuss abortion?

In Virginia, in a companion case to the famous Atkins case, a co-defendant's lawyer just came forward, after 15 years, with the permission of his bar, to explain how he had coached his own client to pin the blame on his co-defendant as the "trigger man." (In Virginia, only the "trigger man" is eligible for Capital Punishment). He divulged what was essentially confidential communications with his client (pre-trial prep). He is now talking about that case quite openly - to the Washington Post.

www.washingtonpost.com/wp-dyn/content/article/2008/01/20/AR2008012002419_pf.html

Anonymous said...

It is the DC Bar. Call and ask them yourself.

Anonymous said...

If the DC bar has not reduced this position to writing, and you can't cite it, then you likely just talked to some flunkie bureaucrat on the phone. Another vote against DC statehood.

Jason Grover said...

DC Bar? I am not a member but I will try to track down their professional responsibility rules, but of all jurisdictions, it seems like DC has some of the more talkative attorneys and I have never heard anybody being sanctioned. Most bars publish lists of sanctioned attorneys and what their violations were. Do you have any idea how many times DC has sanctioned its attorneys for disclosing non-secrets, for example information found in the court's opinion? Is it a hypothetical prohibition or one actually enforced by suspending licenses?

Anonymous said...

Confidences and secrets are different under the rules, confidences are things a client tells a lawyer and secrets are anything else learned in the course of representation. Thus, a lawyer cannot discuss his or her own cases in a public forum, without the clients' consent. The rule is simple -- odd so many do not know it.

Anonymous said...

Anonymous: you have hit the nail on the head regarding confidences and secrets: lawyers cannot write books or articles about their cases without the client's consent because the matter belongs to the client, who might not want the publicity. The DC bar, apparently, recognizes this.

CAAFlog said...

I know this is only a blog, but our profession does have well-defined norms for defending a legal proposition. It can't be done by ipse dixit -- if ipse dixit is even possible for a proposition advanced anonymously.

Can someone who is making the assertion please offer support for the proposition that it's unethical for an attorney to state in a public forum a matter of public record from a case in which he or she was involved without the client's consent? There has been some suggestion that D.C. follows such a rule, but that seems doubtful. Here is the relevant portion of D.C.'s Rule 1.6:

Rule 1.6 – Confidentiality of Information

(a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:
(1) reveal a confidence or secret of the lawyer's client;
(2) use a confidence or secret of the lawyer's client to the disadvantage of the client;
(3) use a confidence or secret of the lawyer's client for the advantage of the lawyer or of a third person.
(b) "Confidence" refers to information protected by the attorney-client privilege under
applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.
[end of quote]

It would seem highly unlikely that a matter of public record would qualify as a secret under that definition. But if there is authority for the proposition that ANY INFORMATION ABOUT THE CASE falls within that definition -- which I understood to have been the position asserted by some previous commentators -- please provide support for that proposition. (And, if that's what the rule is meant to say, there certainly would have been many better ways of saying that -- which suggests, of course, that's not what the rule means.)