Special Rule of Privilege in Criminal Cases Provides Greater Protection to the Criminally Accused
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Ernest “Randy” Comeaux is currently an inmate serving six life sentences, without the benefit of parole, at the David Wade Correctional Center in Homer, Louisiana. The facts of Comeaux crime were detailed by a Louisiana Court of Appeals in the matter of Smith v. Lafayette Parish Sheriff’s Department on April 24, 2004:
“From the mid-1960’s until the moid-1990’s, a number of rapes occurred in the southern portion of Lafayette Parish and adjoining parishes which could not be solved. In late 1995, the Lafayette Police Department (LPD) developed a theory that the rapes were connected and could have been committed by the same person. In 1997, DNA testing revealed that semen examples from six rape scenes matched. At that point, LPD began looking for a serial rapist.
“In September 1997, a task force was formed to attempt to solve these related rapes. The task included LPD, LPSD (Lafayette Parish Sheriff’s Department), Louisiana State Police, the FBI, and the University of Southwestern Louisiana, now University of Louisiana at Lafayette. Unsuccessful, the task force disbanded after approximately seven months. There were no new leads in the case until November 1998 when an anonymous caller suggested to LPD Captain James Craft that Randy Comeaux, a detective with the LPSD Juvenile Division, should be investigated for the rapes. DNA testing on the butt of a cigarette smoked by Mr. Comeaux revealed that his DNA matched semen samples from six rape scenes. After being arrested, Mr. Comeaux confessed to committing a number of rapes, including five rapes in Lafayette Parish.”
Comeaux was indicted and quickly pled guilty to six aggravated rape charges. The former detective was sentenced to six consecutive life sentences without the benefit of parole.
For purposes of this article, we will assume that prior to his arrest, Comeaux confided in two persons about his rapes: an attorney from whom he sought legal advice about the rapes and a Catholic priest to whom he confessed.
These were the only two people who knew Comeaux was the Lafayette serial rapist. One of them apparently violated Comeaux’s confidentially by anonymously calling Captain Craft and telling him that Comeaux should be investigated for the rapes. We will assume the anonymous call came from the lawyer, who was afraid that the rapes would continue until Comeaux was arrested.
The interesting question here is whether the confidence Comeaux shared with the attorney would have been protected by Texas’s law of privileges.
Texas Rule of Evidence 503(a)(1) defines a client as “a person, public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults with a lawyer with a viewing of obtaining professional legal services from that lawyer.”
Rule 503(a) (3) defines a lawyer as “a person authorized, or reasonably believed by the client to be authorized to engage in the practice of law in any state or nation.”
Rule 503(a)(5) provides that “a communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.”
Rule 503(b)(1) defined the essence of the attorney-client privilege as “a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client from a lawyer or a representative of the lawyer.”
Comeaux spoke to the attorney in confidence. He inquired as to what legal options were open to him. Of course, the first option suggested by the attorney was that Comeaux surrender himself to the authorities and the second suggested that he refrain from committing any future rapes. There was no formal, written legal contract between the attorney and Comeaux. There was only a shared confidence and legal advice between the two men. Does Rule 503 protect such a communication from disclosure, particularly to law enforcement?
The latest case from the Texas Court of Criminal Appeals (“CCA”) dealing with a Rule 503 issue was in 2007 in Mixon v. State. The question before the CCA in that case was whether the Rule 503 attorney-client privilege “is established when a person consults with a lawyer with a view to obtaining professional legal services from him, even if the lawyer declines to represent that person at the end of the consultation. We hold that it does.”
The CCA did not decide but remanded the question to the Fourteenth District Court of Appeals, Houston, as to whether the privilege attached when a person is seeking legal services in furtherance of a crime.
In 2003 Danny Lee Mixon went to a trailer in Harris County where a couple resided. He stormed into the trailer after which he seriously wounded the female and killed the male resident. The privilege issue arose because Mixon worked at a Houston video store whose attorney was Peter Heckler. The attorney testified at Mixon’s trial. He stated he was “generally responsible” for the store but did not either manage or supervise it personally. Heckler testified that about midnight on May 6, 2003 he received a telephone call from one of the store’s clerks who told him the police had come by the store looking for Mixon. Heckler said he received a telephone call several hours later from Mixon but the attorney refused to talk to him because of the late hour.
The attorney met with Heckler later in the morning at which time they discussed the crime at length. Heckler agreed to represent Mixon until he learned that the attorney’s own gun may have been used in the crime at which time he declined to represent Mixon for that reason. Heckler testified Mixon did not want “the police to acquire either the handgun or the store videotape from the night of the murder.” Heckler, however, did not make it clear who suggested getting rid of the gun and videotape—him or Mixon. Heckler did pick up the gun from the store and two days later it was turned over to the police. The videotape was never found.
Prior to Heckler’s testimony during the punishment phase of Mixon’s trial, both the State and Mixon’s defense counsel requested that the trial court determine “whether the attorney-client privilege prohibited Heckler from testifying about [Mixon’s] discussion of the case with him. The trial judge conducted a hearing at which the judge listened to Heckler’s testimony and questioned him at length about what transpired between him and Mixon. The judge said he would allow Heckler to testify about Mixon indicating he asked the attorney to get rid of the gun.”
However, the CCA said, “the record shows that Heckler’s testimony on direct examination went beyond the court’s ruling. The trial court had to intervene, send the jury out, and admonish both the State and [Heckler] to focus the testimony on the limited question of whether appellant had asked Heckler to get rid of the gun. In spite of the court’s efforts to confine the witness’s testimony to this critical point, Heckler failed to unequivocally state, either before or even outside the presence of the jury, that appellant had asked him to get rid of the gun. The trial court did not pursue the matter any further …”
The CCA agreed to consider two issues: 1) whether the attorney-client privilege attaches only after the lawyer agrees to render professional service for a client; and 2) whether the attorney-client privilege attaches when a person consults with a lawyer with a view to obtaining professional legal services from the attorney, even if the attorney ultimately declines to represent that person. The CCA did not waste time getting to the heart of the issue:
“The use of the words ‘with a view to obtaining profession legal services’ in the definition of ‘client,’ at the beginning of [Rule 503], clearly indicates that the protection of the attorney-client privilege is available to those persons who had hired the lawyer as those still seeking to do so. Moreover, there is nothing in Rule 503(b) (2), the ‘Special rule of privilege in criminal cases’ quoted above, to indicate a modification of that definition of ‘client.’”
The State tried to manipulate the definition of client, but the CCA was not having any truck with that argument—essentially that Mixon “should not be allowed to benefit from the attorney-client privilege because no attorney-client relationship was established between Heckler and appellant, and that such a relationship needs to be established before the attorney-client privilege is allowed.”
The CCA continued: “In making this argument, the State appears to be viewing the use of the phrase ‘attorney-client relationship’ in Rule 503(b)(2) as a special requirement in criminal cases, restricting the availability of the privilege only to cases where the lawyer had already agreed to represent the client. But there is nothing in the rule itself to support this interpretation. Moreover, if that phrase were in fact meant to be such a special requirement in criminal cases, it would have been defined in Rule 503(a), the section on definitions – at the very least to indicate when such relationship began and ended, so that the courts could determine the period in which the privilege applied. In addition, it is important to note that the phrase ‘attorney-client’ does not appear anywhere in the rule except in 503(b) (2), the ‘Special rule of privileges in criminal cases.’
Most notably, it does not even appear in Rule 503(b) (1), outlining the general rule of privilege. Thus, if we were to follow the State’s interpretation – viewing the phrase as a special restriction on the availability of the privilege in criminal cases – we would have to conclude that the rule was intended to provide lesser protection to persons accused of criminal offenses than those seeking a lawyer’s help in non-criminal matters. But if anything, the use of the words ‘any other fact’ in Rule 503(b) (2), the ‘Special rule of privilege in criminal cases,’ indicates the intent to provide greater, not lesser, protection to the criminally accused.”
Rule 503(d) lists five exceptions to which the attorney-client privilege does not attach. Exception (1) [Furtherance of Crime or Fraud] was an issue in the Mixon case: “If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” The CCA remanded the Mixon case for the Fourteenth Court of Appeals to address this question. The appeals court found:
“ … Whether the exception [crime or fraud] applies turns on the client’s knowledge,” that the attorney’s services will be used to further the activity in question. “The crime-fraud exception only applies to communication concerning future acts and does not apply where a client is seeking advice relating to crimes already committed … (court distinguishes between situation where the client reveals information to an attorney regarding the location of a kidnapping victim without seeking the attorney’s assistance for any purpose beyond defense of the criminal charges and a situation where the client sought the attorney’s help to move the victim’s body).”
The appeals court pointed out that the central question in Mixon was whether Mixon was seeking Heckler’s representation for the murder or whether he seeking Heckler’s assistance in destroying the murder weapon. The appeals court found that Mixon was doing the latter—seeking Heckler’s assistance to destroy or withhold the murder weapon.
Mixon makes it clear that if the attorney in the Comeaux hypothetical anonymously called the police, he violated the attorney-client privilege. Comeaux only disclosed that he had committed the rape and sought advice as to what his options were; he did not ask the attorney to assist him in facilitating future rapes. This is the case even if the attorney believed that Comeaux would commit future rapes in the future. In summary, what a criminal suspect has done in the past is protected by the attorney-client privilege—not what he plans to do.
The Historical Conflict Surrounding the Privilege
There has been an ongoing conflict, most often subtle, in the house of our legal system about whether the attorney-client privilege should be absolute, as indicated in Mixon, or qualified. Jeremy Bentham, the fame jurist and philosopher, believed the primary purpose of a legal system is to seek and establish the truth—a position that has little tolerance for the attorney-client privilege as pointed out by University of California Law Professor Edward J. Inwinkeiried in a Pittsburgh Law Reviewarticle. On the other hand, one of the most recognized evidentiary legal scholars in history, Dean John Henry Wigmore, believed the privilege was absolute and sacred—although he subscribed to the principle that the privilege could be waived. The U.S.
Supreme Court in the late 1980s followed Wigmore’s privilege position in two cases: Jaffee v. Redmond (recognized the psychotherapist privilege as absolute) and Swidler & Berlin v. United States (recognized attorney-client privilege as absolute).
As Professor Inwinkeiried pointed out, Wigmore believed that privileges, once recognized, should be absolute because they serve the interest of society; namely, “the promotion of important social relations in which confidentiality is ‘essential.’” This is particularly true with the attorney-client privilege, the oldest of all privileges. Wigmore frequently referred to a nineteenth century decision that said “deprived of” the attorney-client privilege, “a man would never venture to consult any skillful [attorney], or would only dare to tell his counselor half his case.”
We support the absolutism of the attorney-client privilege as a sacred trust between the provider of legal assistance and the subscriber of legal assistance. A client must nearly always “bare his soul” to the attorney in order to receive the kind of effective representation needed to address the legal problem facing the client. The two share the most personal of confidences. As an eighteenth century case often cited by Wigmore put it: “there would be an entire stop to [legal] business; nobody would trust an attorney with the state of his affairs.
Still, there are those, as noted by Professor Inwinkeiried, who believe the attorney-client privilege should be “qualified,” not absolute. They prefer the early common law principle, as advanced by the State in Mixon, that the privilege attaches only after the attorney has commenced litigation for the client. Professor Inwinkeiried pointed to three studies which appear to support a “qualified” privilege. The first was a study published in 1962 n the Yale Law Journal. The researchers provided questionnaires to 108 persons, of which one-third believed a judge could order an attorney to disclose confidential attorney-client information. Professor Inwinkeiried said this finding suggested these individuals “would still use an attorney’s services if the privilege [was] actually classified as qualified rather than absolute.
Intrigued by what he believed the Yale-published study revealed (“a substantial majority of laypersons would continue to use lawyers even if secrecy were limited), Professor Fred Zacharias decided to conduct his own study into the matter. He interviewed 105 laypersons in Tompkins County, New York, and while approximately half said they would withhold information from attorneys if there was no privilege of confidentiality, they also indicated they would consult with attorneys if the privilege of confidentiality was limited. The Zacharias study supported the Yale-published study by finding that 40 to 60 percent of those interviewed believed an attorney has the discretion to disclose confidential communications without their permission.
The third study cited by Professor Inwinkeiried was conducted by Professor Vincent Alexander during his study for his Doctor of Science Law Degree. Conducted in the 1980s, Professor Alexander’s study, which focused on corporate attorney-client privilege, involved interviews with corporate executives in Manhattan. These executives said their decisions to convey confidential information to “in-house” counsel depended not on their belief that the privilege shielded those communications from disclosure but rather on “their trust of the individual attorney.” Professor Inwinkeiried assessed the findings of this study:
“After reviewing his data, Professor Alexander found that in the corporate setting, the operation of the privilege is over inclusive; it applies to many communications that would be made even if there were no privilege. The data strongly suggested that in the corporate context, the scope of the privilege is unduly broad. The data raised the question of whether any privilege should attach to communications between business executives and their in-house counsel. The data appeared to undermine the assumption that absolute privilege is necessary. Professor Alexander concluded that it would work little damage on the free flow of corporate attorney-client communications if the privilege were converted into a qualified one, capable of being overridden in exceptional cases of compelling need.”
While some in the legal community may have been impressed enough with these studies to suggest that the attorney-client privilege should be limited or qualified, the U.S. Supreme Court certainly was not. In 1981 the court in Upjohn Co. v. United States held that the moment the attorney and layperson confide, the layperson must be convinced, “with some degree of certainty,” that his/her confidential communications “will be protected.” And there is sound basis for this position which is grounded in both public policy and evidentiary law. As Chief Justice Rehnquist stated in Swindler & Berlin, “the loss of evidence is more apparent than real,” but “without the privilege, the client may not have made such communications (beneficial to evidentiary law) in the first place.”
Professor Melanie Lewis, writing a 2000 edition of the Wisconsin Law Review, was more direct: “in a perfect world, the privilege would shield no evidence. Privilege generates the communication that the privilege protects. Eliminate the privilege, and the communication disappears … the privilege would protect … statements that would not otherwise have been made.” As one federal court expressed it: absolute privilege results “in little evidentiary detriment where the evidence lost would simply never come into being if the privilege did not exist.”
And that is precisely the core for absolute attorney-client privilege: no rational client facing criminal investigation would provide an attorney—one either consulted or retained—with information implicating herself in criminal wrongdoing. It is imperative that an attorney know the level of criminal exposure his client faces. An investigation for possible defenses typically cannot begin until the client is forthcoming about the facts surrounding the case and her involvement in any potential criminal wrongdoing—and that will be achieved only if the client believes his privileged communications with the attorney are absolutely protected from disclosure.
First, we have no way of knowing if Comeaux spoke to an attorney; and, second, if he did, whether the attorney was the person who anonymously tipped the police about Comeaux’s involvement in the rapes. But the hypothetical does present a real-life example of a difficult professional conflict, one that an experienced criminal defense lawyer will undoubtedly, at some point in their career, be forced to confront.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
Rule 503, Lawyer-Client Privilege, states in relevant part:
A “client” is a person who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.
General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:(1) between the client and the client’s lawyer…
Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or lawyer’s representative by reason of the attorney-client relationship.
Exceptions. There is no privilege under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;