Wednesday, November 24, 2010
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Court of Appeal Rules:
Eavesdropping on Lawyer-Client Talks No Basis for Dismissal
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court judge engaged in “judicial overkill” by dismissing charges that five defendants stole more than $1 million in Medi-Cal funds because state agents eavesdropped on attorney-client conversations, the Court of Appeal for this district ruled yesterday.
Suppression of evidence obtained through the eavesdropping is the appropriate sanction, balancing the defendant’s rights and the government’s interest in prosecution, Justice Kenneth R. Yegan wrote for Div. Six.
Retired Los Angeles Superior Court Judge John L. Martinez, who sits on assignment, denied prosecutors’ motion to reinstate a felony complaint against Peter Shrier, Anna and Gersha Gravich, and Arkady and Ella Rozenberg.
A magistrate had dismissed the complaint, finding that state Department of Justice agents had committed an “outrageous” due process violation by intentionally listening in as three of the defendants discussed the case with their lawyers while reviewing discovery material in a conference room at the department’s Burbank office.
The five were arrested in February 2008 and charged with operating a bogus maternity clinic at 2500 Wilshire Blvd. in downtown Los Angeles. Prosecutors said they provided women with cash and baby accessories in exchange for undergoing unnecessary medical procedures, then billed the state between $100 and $500 per patient.
Agents said they were tipped off by former employees. Routine audits failed to uncover the scheme earlier because the employees were careful to create falsified documentation to cover their tracks, authorities told reporters at the time.
The complaint identified Shrier as a physician and owner of the clinic, Anna Gravich as a doctor there, and the Rozenbergs as clinic administrators, and charged the five with filing false Medi-Cal claims and grand theft.
In moving to dismiss the complaint, the defendants attached a law enforcement report, which was filed, and remains, under seal. As described in the motion, the report reveals that a Russian-speaking agent—who was present in the room while Shrier and the Graviches spoke to their lawyers, both in English and Russian, listened in and reported the contents of the conversations to his superiors.
The prosecutor argued that there was no reasonable expectation of privacy because the defendants knew the agent was working for the government, even though they did not know he spoke Russian. The government could not be faulted because “these attorneys spoke too loud,” the prosecutor argued, while acknowledging that they spoke in low tones and did not intend to share the content of those conversations with the government.
The magistrate said the prosecution knew the conversations were intended to be private and “intentionally pierced that confidentiality veil,” and that such conduct could not be “accepted or glossed over” and ordered the complaint dismissed with prejudice.
Yegan, however, said that dismissal was an excessive response to the misconduct.
In doing so, he distinguished Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, which held that dismissal was the appropriate remedy for prosecutorial misconduct, which consisted of planting an investigator outside a holding cell for the purpose of eavesdropping on the defendant’s conversation with defense counsel.
While Yegan agreed with the defendants that the conversations were privileged, and that the agents had intentionally interfered with the attorney-client relationship, there were several features of the case that differed from those of Morrow, he said.
The justice noted that the eavesdropping in this case was orchestrated by a state agent, not the prosecutor; that it did not occur in the courtroom; that unlike in Morrow, the agents and the prosecutor did not refuse to testify; and that the defendants in this case are charged with “brazen and ambitious attack upon the public fisc,” a crime Yegan characterized as of greater magnitude than the “simple residential burglary” charged in Morrow.
The case is People v. Shrier, 10 S.O.S. 6544.
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