Monday, April 3, 2006
C.A. Denies Hearing on Claim That Lawyer Turned Informant
By KENNETH OFGANG, Staff Writer/Appellate Courts
A defendant who claims that his or her lawyer combined with police to incriminate the defendant in violation of the attorney-client privilege is not entitled to a hearing in open court, the Court of Appeal for this district has ruled.
Div. Eight Thursday affirmed the conviction of Donna Navarro, who has already completed a 16-month prison term for grand theft. The panel also denied a writ petition by her husband, Edward Navarro, who is awaiting trial on similar charges and had sought to suppress evidence obtained in April 2002 in a search of the homes and auto repair business owned by members of his family.
The court reached the same disposition when it first decided the case last August. But after originally holding that the denial of a hearing in open court was at most harmless error and that the defendant had waived the issue, the panel agreed to rehear the case in order to decide that issue on its merits.
The Navarros claim that the Sheriff’s Department obtained the warrant based on confidential information they gave to attorney Elizabeth Navarro Rafeedie, who has represented them in other matters, in early 2002. The Navarros’ current lawyer, Angelyn Gates, told the MetNews that Rafeedie admitted as much to another family member.
The attorney—who has not returned phone calls regarding the case—is the sister of Edward Navarro and the wife of Los Angeles attorney Fred Rafeedie, whose father is Senior U.S. District Judge Edward Rafeedie.
Donna Navarro’s motion to quash the search warrant and disclose the identity of the confidential informant was denied by Los Angeles Superior Court Judge Candace Beason after an in camera hearing. Beason ruled that there had been no wrongdoing on the part of the Sheriff’s Department and denied the motions.
Donna Navarro subsequently pled guilty to three counts of grand theft, reserving the right to appeal. Weeks after she entered her plea, her husband was arrested and charged with multiple offenses, although he now stands accused solely of one count of conspiracy.
Edward Navarro’s motions to suppress and to disclose the identity of the informant were denied by Judge Clifford L. Klein, who ruled after an in camera hearing that there was no constitutional violation because there had not been a “knowing procurement” of privileged information or other willful misconduct by the Sheriff’s Department.
His trial was stayed by the Court of Appeal pending a ruling on his writ petition.
Justice Laurence Rubin, writing for the Court of Appeal, reiterated the court’s previous holdings that a breach of the attorney-client privilege does not require suppression of evidence obtained in a resulting search absent a constitutional violation, and that there is no constitutional violation unless police or prosecutors procured the breach.
Seventh Circuit Cited
Assuming for purposes of the decision that the informant actually was Elizabeth Navarro Rafeedie and that the information actually was privileged, but expressing no opinion on the validity of either assumption, Rubin cited U.S. v. White (7th Cir. 1992) 970 F.2d 328, in which the Court of Appeals found that there was no government misconduct and no constitutional violation. That case dealt with an attorney who, prior to being sentenced for bankruptcy fraud, agreed to assist prosecutors in building a case against his former clients with respect to an unrelated fraud.
The Seventh Circuit held that there was no breach of privilege because the documents that the lawyer turned over were not confidential. But even if the privilege had been breached, the court said, there could be no constitutional violation in the absence of proof that the government was “complicit” or “procured” the invasion of the privilege, such as by promising the lawyer leniency in exchange for his cooperation.
Rubin said the Navarros made no showing, based on the in camera proceedings as well as those which take place in open court, of government misconduct under the White standard.
The justice went on to reject the defense contention that if the court determines in camera that defense counsel was the source of incriminating information, a hearing in open court is necessary in order to determine whether government misconduct occurred.
Absent such a hearing, the defense argued, counsel would not be able to fully protect the defendant’s rights and the misconduct of the lawyer who breached the privilege would be shielded, in violation of public policy.
Rubin, however, said the argument missed the point. The purpose of the suppression remedy is to remedy misconduct by the government, not by defense counsel, he explained.
He analogized to Franks v. Delaware (1978) 438 U.S. 154, which allows a defendant to challenge the veracity of a search warrant affidavit, but only upon a substantial preliminary showing that the affiant lied and that the remaining contentions in the affidavit are insufficient to establish probable cause.
Later cases, Rubin noted, established in camera procedures by which a Franks remedy could be obtained in a case where the warrant is based on information supplied by a confidential informant. While the defense may supply questions to be asked of the informant and specify documents to be examined, Rubin explained, “the court is given the responsibility of conducting a thorough inquiry and examination of any necessary witnesses.”
The jurist elaborated:
“We see no reason not to apply a variant of those procedures to motions involving claims that a search warrant was obtained because the police procured a breach of the attorney-client privilege. At bottom, both types of motions require factual findings by the trial court into claims of police misconduct. Given the same mandate to conduct a vigorous in camera proceeding...we believe the trial courts can adequately protect a defendant’s rights while taking steps to safeguard the confidentiality of police informants to the greatest extent possible.”
Gates said she would seek review in the California Supreme Court and expressed confidence that the justices “would see the fallacy of the Court of Appeal opinion.”
The decision has “given lawyers an avenue to turn in their clients,” she said. “...The government is now protecting illegality.”
A suggestion in the opinion that a client could sue civilly for breach of the privilege is “ridiculous,” Gates commented, because many clients will never know that their lawyer was the person who turned them in.
The case is People v. Navarro, 06 S.O.S. 1654
Copyright 2006, Metropolitan News Company