Friday, January 14, 2011

"All I want is an unfair advantage"

That was a favorite line of former AIG head, Hank Greenberg.  Nothing wrong with it, who wouldn't want a leg up on their adversaries?  Not exactly fair, but whatever.

What about when you find yourself charged with a crime and have to defend yourself in court?  As we've discussed in the past, the state is obligated to hand over the evidence they have against you as well as any evidence that they may have that's exculpatory and can help you defend yourself.  There are several states throughout the country that have what's called an "Open File Discovery", from the Criminal Defense Wiki page...
Open file discovery is promoted in the United States as a means to help equalize the investigatory disparity between the prosecution and the defense attorney. [1] Under open file discovery, a defendant should have access to the prosecutor's entire file and there should never be any surprises at trial.
Open file discovery is also the only means by which the state can guarantee due process to defendants. It also eliminates the need for prosecutors to evaluate whether evidence is both material and exculpatory under the Brady Rule.
Disclosure must not only be complete, it must also be timely. Disclosure must be completed well in advance of trial so that the defense attorney has time to examine the evidence, test it, and prepare an adequate defense. 
At least in my opinion as a lay person, this seems like the way things should be, it only makes sense.  Consider that the person charged with the crime doesn't have the resources to research the case as well as the state, it's hard enough paying for a lawyer let alone a private investigator.  Then you have to consider the fact that the current system in the state of Florida only obligates the prosecutor to turn over whatever they think is necessary therefore creating a perfect opportunity for a prosecutor or police to withhold evidence.  Think about it, if you were the prosecutor or a cop and you had something in your possession that would exonerate the defendant, how inclined would you be to turn it over to the defense knowing your case will get blown out of the water?  Granted under the Brady Rule a moral and ethical prosecutor is obligated to hand over such evidence, but we live in an imperfect world, that's hardly the case.

If that wasn't bad enough, this week we've discovered what could possibly amount to a prosecutor listening in on his targets discussing legal matters with their attorney.  Could you ask for anything more unfair than being able to listen in on someone candidly discussing legal matters or perhaps a crime with their attorney under the guise of the confidentiality afforded to them by the attorney client privilege?  Talk about having an unfair advantage?  

So here's my question.  If I was able to find out about this "body wire at attorneys office" business, then who else knows about it?  If indeed it is illegal to conduct such a recording, why hasn't anything been done about it?  If my hunch is right, this operation took place some time between October and December of 2008, that's over two years and nothings happened?  Perhaps it's not illegal to record conversations between an attorney and their client?  Or was all evidence of such a recording occurring hidden or destroyed?

We'll find out soon enough.

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