Prosecutorial Infringement on Defendants' Right to Counsel
Welcome to behind the blindfold, a podcast featuring your hosts, Romeo Salta and Scott Fenstermaker, New York lawyers with over 75 years of experience between them. Using personal experience and that of their guests as well as your audience contributions, Romeo and Scott will explore the not uncommon inconsistencies, fabrications, falsifications, half truths, slight of hand, and distortions that one encounters when practicing law. Using real life anecdotes from their decades of experience supported with evidence, documents, witness testimony, correspondence, court filings, and similar support, Romeo and Scott will raise the curtain on the aspects of the practice of law that understandably lead to skepticism from you, the listening public. Scott, who's a graduate of Harvard Law School and the United States Air Force Academy, spent years litigating military commissions matters at Guantanamo Bay and related federal court habeas matters and has additional consistent experience in the federal and state courts in the United States, will provide insider accounts of the court findings that cannot be reconciled with either the facts or the law. Romeo, who has practiced in the state and federal courts in New York for over 4 decades, will share his broad and deep experience handling civil and criminal litigation in the courts.
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Romeo Salta:Good afternoon, Scott.
Scott Fenstermaker:Hey, Romeo. How are you?
Romeo Salta:Good. So, today's podcast is about an attorney who the prosecution wanted to issue an arrest warrant for an attorney who, can you tell us a little bit about that?
Scott Fenstermaker:Yeah. The the allegations against the attorney are one that he threatened to go to the US attorney's office regarding a, a concern that he had regarding whether or not the prosecutors somehow or other either tampered or or allowed evidence to be manipulated in some way. And the second thing that they were concerned that he did is that they claimed that he was visiting with the defendants in the local county jail to discuss their case, the defendant's case with them. And based upon those two concerns, the prosecutors both reached out to the local police department to, see if the police department was willing to investigate, his alleged misconduct, and they also reached out to the bar disciplinary authorities to make similar complaints.
Romeo Salta:So there's basically, 2 parts to this. The first part involve prosecutor, I from what I understand, not not willing to do not willing to give a defendant's own evidence back unless that defendant agreed to waive any kind of complaint. It's called spoliation, for people who don't know. Destruction of evidence complaint against the prosecution. That was the condition for getting the evidence back.
Romeo Salta:His own evidence, by the way. Isn't that right?
Scott Fenstermaker:That's correct. It's not only his own evidence, but it was it was a a hard drive for a DVR that was a security system in his own home.
Romeo Salta:Alright. Let's get into that.
Scott Fenstermaker:Romeo and I want to let the listening audience know that the prosecutor referred to in this podcast was a sent written invitation to participate in the podcast and be interviewed as part of it and she did not respond to that invitation. So the the first the first initiation of, this concern that the prosecutor raised had to do with the evidence that you just mentioned. And in a series of emails that she exchanged with the defendant's then attorney, she asked him essentially to waive the issue of evidence spoliation. And I'm going to read directly from the emails. The first email portion of the email says, I've got no issue with returning these items.
Scott Fenstermaker:And when she said these items, it was had to do with the DVR system from the security cameras in the defendant's home provided you will waive any possible spoiliation claims that could arise from the release back to your client. There was some back and forth between the prosecutor and the defense attorney, about her request And then in order to explain her request, she then wrote, a thing that I get concerned about is that if we obtained evidence from a device, the defense can sometimes try to argue that we ruined it or something so that they cannot get their own evidence from it. And then finally after the the, the defense attorney expressed some reluctance to engaging in such a waiver, she then closed the email sequence by saying, well, would you be saying upon receipt of those items, and again the items are the DVR system and hard drive, that we destroyed potentially exculpatory evidence? That's what I'm trying to avoid. We are working in good faith here but if you cannot waive that issue, we'll just hang on to them for trial.
Romeo Salta:Yeah. I'm just saying that's kind of amazing. In other words, the DA over there is saying we're gonna hold on to your own evidence if you don't agree to waive any kind of complaint or assertion or spoliation of evidence. I mean, that's amazing.
Scott Fenstermaker:Yes. And and essentially, if if you could again describe what spoliation of evidence is. If from your perspective is spoliation of evidence solely intentional damage to the evidence or intentional and and perhaps unintentional damage to the evidence?
Romeo Salta:Well, regardless, I mean, they're putting conditions on the defense attorney for the return of evidence and precluding the defense from asserting that either intentionally or unintentionally, potentially exculpatory evidence was destroyed and they would have to waive that defense in order to get the evidence back?
Scott Fenstermaker:That that is apparently what she was saying. Alright. So this the same prosecutor testified at a at a hearing under oath regarding this request, And we're going to read a brief sections from her testimony regarding this request. And I'm gonna read the questions and, Romeo, you're gonna read the answers. Is that correct?
Scott Fenstermaker:Okay. Question. Let me ask you a question. In the in the exhibit 89, did you ask mister McNally to waive evidence, issues of evidence tampering or spoliation with respect to DVR?
Romeo Salta:Answer. No. I did not ask him to waive anything with regard to tampering.
Scott Fenstermaker:Next question. My question is, did you ask him to waive evidence spoliation issues with respect to the DVR?
Romeo Salta:Answer. I I think I might have asked him. Yes. I might have asked him to waive spoliation issues.
Scott Fenstermaker:Next question. Miss Staples?
Romeo Salta:Answer yes.
Scott Fenstermaker:My question is, you were willing to give the DVR back to mister McNally when you sent that email on the condition that he waived evidence spoliation. Correct?
Romeo Salta:I believe so.
Scott Fenstermaker:And the reason you were willing to give it back to him is that you you decided to not use the DVR at trial. Correct?
Romeo Salta:We had no information that we were going to. No. We couldn't get into it.
Scott Fenstermaker:But you had decided at that point in time that you were going to give it back to him because you weren't going to use it at trial. Correct?
Romeo Salta:Depending on how our discussion went, yes.
Scott Fenstermaker:When you say your discussion, the only issue that had to do with your whether or not you were going to give the DVR back to him at that stage is whether he's going to waive evidence spoiliation Correct?
Romeo Salta:I can't say that was the only issue, but that's certainly an issue that I a concern that I raised in the email.
Scott Fenstermaker:So the next issue is has to do with an email that was sent by the attorney to the prosecutor regarding the evidence spoliation issue. And the email reads as follows. Heather, I understand that you are involved with Jeff Witham's prosecution. I have reason to believe that you or other law enforcement officials have tampered with electronic evidence in his case. It is my intention to make a criminal referral to the United States attorney regarding your and others' potential misconduct.
Scott Fenstermaker:Please let me know if there is anything that you would like me to add in my referral by way of mitigation or exculpation. Thank you. Now the the same prosecutor was asked asked questions at the hearing regarding, this issue as well. And as before, we're gonna read the questions and answers having to do with this subject. Question, so earlier, when you was your concern regarding my involvement in Jeff Witham's case triggered by your receipt of the email that is in board exhibit 17?
Romeo Salta:To the best of my recollection, yes.
Scott Fenstermaker:The the issue here was that the defense attorney or the the attorney sent an email suggesting to the prosecutor that he might make a referral to a law enforcement official regarding concerns that that attorney had regarding whether or not the prosecutors or other law enforcement officials were tampering with evidence. Is that correct?
Romeo Salta:Yes. That's that's that's correct.
Scott Fenstermaker:Based upon you, how long have you been an attorney, Romeo?
Romeo Salta:40 gosh. About 43 years.
Scott Fenstermaker:And and based and based upon your 43 years of have you had has much of your criminal has much of your practice been in the practice of criminal law? Practice of criminal law?
Romeo Salta:About half that time.
Scott Fenstermaker:Based upon your 20 years of experience as in the practice of criminal law, do you see any criminal concerns that you have with respect to the defense attorney's conduct here of informing the prosecutor that he was potentially going to conduct here of informing the prosecutor that he was potentially going to make a referral to the United States attorney's office?
Romeo Salta:On the face of it, no. I mean, if there was potential misconduct first of all, if there was potential misconduct, there's nothing wrong, I believe, ethically or legally with, bringing that potential misconduct to the attention of the proper authorities. In this case, the, the attorney did say gave, gave the, district attorney the, opportunity to present any mitigation or exculpatory evidence, or or even an explanation, as to what's going on before even going to the authorities. So, I mean, that's that certainly, takes away from any kind of, unethical conduct, I would think. Certainly not criminal.
Romeo Salta:If if they are arguing, I think the only argument they could have is the attorney is doing this in order to gain some kind of advantage, in his case in in his case where he's representing the defendant. But from what I understand, number 1, correct me if I'm wrong, the attorney was not, the the this defendant's attorney at the time. And there really was no advantage here because, the the attorney I'm I'm sorry. The defendant was already indicted. It was so it was
Scott Fenstermaker:The attorney the attorney in question here was not at this time has never been that defendant's attorney at any point in time.
Romeo Salta:Correct. And and the defendant was already, charged.
Scott Fenstermaker:Correct. And did did the attorney in question ask the prosecutor to take any action on that defendant's case at any time?
Romeo Salta:No. No. No. No. And I can't even imagine what what what potentially could be asked.
Scott Fenstermaker:Alright. So the next the next example of evidence from this interaction between the defense attorney and the prosecutor is an email that the prosecutor sent to the to the local, city's police department and a a investigatory detective in the that police department. And she laid out the fact pattern and then she at the very conclusion of her email, she stated to the detective, please let me know if you have any questions or concerns. I am wondering if we can get bail conditions upon an arrest warrant that would prohibit him being the defense attorney from any contact with any inmate at the local county jail except those he is attorney of record for with the court looking forward to hearing back. And that's the email.
Scott Fenstermaker:The prosecutor again testified at the at the hearing under oath in the following manner. Question. I'd like you to turn your attention to the 3rd page of defendant's exhibit 67 in evidence.
Romeo Salta:Yes. I'm right there.
Scott Fenstermaker:Question. Okay. In in that email, it states that you you expressed some wonderment to detective Weatherby regarding whether or not you could get an arrest warrant and get bail conditions set on a male person prohibiting him from any contact with an inmate at the in the Hancock County Jail accepting the ones that he's already representing. Who is that him?
Romeo Salta:Who is that what?
Scott Fenstermaker:Who is the him that you were referring to in the second line of that?
Romeo Salta:That would be you, mister Fensdomecker.
Scott Fenstermaker:Next question. Do you recall what, if any, crimes you felt that I was committing that would lead to your attempt to secure an arrest warrant for my arrest?
Romeo Salta:Well, again, referencing the email, it looks like I was considering obstructing criminal prosecution, a felony, title 17 a, main revised statute, section 754,1 and 2.
Scott Fenstermaker:Now with respect to the previous exhibit that we discussed, which was sent, an email sent from me to you on December 14th, with the exception of that email, what evidence did you have at the time that you sent this email to detective Weatherbee that I was obstructing justice?
Romeo Salta:I know that there was other evidence, that there were issues regarding your entry into the Hancock County Jail a number of times and concerns around that and concerns around interference with other criminal matters that you had nothing to do with of record.
Scott Fenstermaker:Question. What was your understanding that I was doing when I entered into the Hancock County Jail?
Romeo Salta:My understanding was that you were going in and speaking with clients that or inmates, essentially, residents that were represented by other counsel and and interposing yourself into that relationship.
Scott Fenstermaker:Question. And was it your belief that in speaking to defendants that were represented by other counsel that I was that was evidence of me committing a crime?
Romeo Salta:I'm not certain whether that independently would be evidence of a crime. What I was speaking to was specifically this apparent December 14, 2022 email where you essentially threatened me with the federal prosecution regarding mister Witham's prosecution.
Scott Fenstermaker:Next question. What evidence, if any, what evidence of any nature did you have that I engaged in this felony?
Romeo Salta:That email, which I think is board 17, I think you said we just saw it earlier. The snippet that's also pasted into defendant 67 where you state, Heather, I understand that you were involved with Jeff Witham's prosecution. I have reason to believe that you or other law enforcement officials have tampered with electronic evidence in this case. It is my intention to make a criminal referral to the US attorney regarding you and others' potential misconduct. Please let me know if there's anything you would like me to add in my referral by way of mitigation or exculpation.
Romeo Salta:Thank you, Scott.
Scott Fenstermaker:So in other words, you felt that was me obstructing criminal prosecution?
Romeo Salta:Yes. It was. In my view at the time, it was absolutely intimidation or an attempted intimidation. I should be more clear.
Scott Fenstermaker:So that that ends her testimony. And I just I'd like to, draw your attention, Romeo, back to, the email that the the the, prosecutor sent to the police detective.
Romeo Salta:OK
Scott Fenstermaker:What can what concerns would you have as a defense attorney where a prosecutor is trying to get you arrested and have bail conditions set on you prohibiting you from going into the local jail to speak to defendants?
Romeo Salta:Well, I mean, the very thing that they were complaining about is what they were doing. In other words, if anybody was obstructing justice or the the administration of justice, it's that. I mean, to to threaten I mean, listen, bail conditions, bail conditions, to set bail conditions to prevent basically to arrest and prevent an attorney from speaking with with a defendant, with an inmate in jail, even if, I suppose, even if that inmate invited the attorney to speak with him, which is which is insane. I mean, that
Scott Fenstermaker:In your 43 years of of legal practice and your over or close to 20 years of of experience in in criminal practice, have you ever heard of a prosecutor trying to have a defense attorney arrested and have a a court order imposed upon him blocking him or her from speaking to defendants in the jail?
Romeo Salta:No. No. As a matter of fact, it happens all the time where, an attorney may be speaking to a defendant in jail who's already represented by, say, legal aid or or some other attorney. That happens all the time. A lot of these defendants are shopping for an attorney.
Romeo Salta:Maybe they're not happy with the attorney that they have, or they don't want a a state public defender, so they reach out to other attorneys who are not of record, but, are certainly entitled to speak to, the inmate. I mean, happens all the time. I've done it. Happens all the time. So, I mean, I don't see how that how that even even colorably could be considered a criminal act.
Scott Fenstermaker:And and setting aside whether or not the defense attorney's behavior could be seen as a criminal act, what policy considerations would you see with the prosecutor trying to get an a a court order prohibiting a criminal defense attorney from visiting defendants in a jail?
Romeo Salta:What policy considerations are affected, you're saying? Yeah. Well, 6th amendment, the right to counsel. I mean,
Scott Fenstermaker:Would would it also would it also arguably affect the independence of defense counsel?
Romeo Salta:Oh, the independence of defense counsel and and also the the defendant's right to counsel.
Scott Fenstermaker:Would the known imposition of such bail conditions on a criminal defense attorney arguably have a chilling effect on the defense bar?
Romeo Salta:Absolutely. I mean, it happens in totalitarian states. That's where it happens.
Scott Fenstermaker:So we're gonna go to the next example, that we have here of the in the same line. And this is, exhibit 63 that was in evidence and this is another email from the same prosecutor to the disciplinary authorities not the criminal authorities but but to the disciplinary authorities about the same criminal defense attorney. And I'm gonna read a snippet from that and it says it is my position that he being the defense attorney is interfering with the judicial process and frankly harming defendants with this interference. I know that bar counsel's office has to show some immediate and a substantial risk of harm to get an interim emergency suspension, an example of which would be stealing from clients. However, I urge you to consider that mister Fenstermaker has demonstrated over a matter of months now a pattern of behavior that harms people.
Scott Fenstermaker:He needs to be stopped. Alright. And this same prosecutor testified about this email at the hearing as well. And I'm gonna go to that testimony. Question.
Scott Fenstermaker:The evidence that you relied upon in sending this email to miss Sheridan with respect to the allegations of my criminal conduct consisted of my email that I sent to the day before which is board exhibit 17 in evidence threatening you to report you to the United States Attorney's Office or Department of Justice for tampering with evidence. Correct?
Romeo Salta:I can't state to a categorical certainty that that was the entirety of the evidence that I was considering at the time. However, it certainly clearly was important.
Scott Fenstermaker:Question. And you were also concerned that I was interfering with the judicial process. Correct?
Romeo Salta:The criminal justice process. Yes.
Scott Fenstermaker:And you were also concerned that I was harming defendants. Correct?
Romeo Salta:Very much so.
Scott Fenstermaker:Question. My question is what harm did you believe that I was causing defendants when you sent this email?
Romeo Salta:I believe that when a defendant is working with their attorney in a criminal matter that that attorney client relationship is is frankly sacred. It is critical. It's really one of the core bases that our justice system is founded upon. And while, of course, sometimes some defendants will retain multiple attorneys, as we're aware, when another attorney appears to be interposing into a relationship into, frankly, what I would consider to be a very at risk community that's highly concerning, especially when you consider that the responsibilities of an assistant district attorney or a prosecutor is to try to serve and protect all the members of the community that they're serving, and that would include inmates at the Hancock County Jail. It was my belief that we needed to take care of everybody and make sure that everybody was getting the best result possible for their own case.
Scott Fenstermaker:Question. So it was your effort. The sending this email was in part your effort to protect the defendants from me. Correct?
Romeo Salta:I don't know if I will put it quite that way, but perhaps.
Scott Fenstermaker:Question. And what is it about me that led you to believe that you needed to protect the defendants from me?
Romeo Salta:I think that anytime an attorney is going into a jail and speaking with otherwise represented clients clearly is in flagrant violation of bar rules and ethics. That is highly concerning. Again, it interferes with the attorney client relationship. I've done defense work myself in a somewhat limited capacity back before I became an ADA. I know how inmates in jail can be.
Romeo Salta:They will grasp at anything. And I was concerned that what was being essentially sold to them was a bill of goods.
Scott Fenstermaker:Question. And what was being sold to them?
Romeo Salta:Some kind of promise for some kind of deliverance that outside of their attorney client relationship, They should have been working with their attorney who then, of course, works with the district attorney's office and the court system. We all work within the court system to try to get to the appropriate result for each case.
Scott Fenstermaker:Question. Which what promise did I were you aware that I made to any defendant at any time during the history of my career?
Romeo Salta:I'm not specifically aware of specific promises. It was more so what was coming out of the jail in various cases that we were seeing as a result of your going in and talking to represented people.
Scott Fenstermaker:Question, what was coming out of the jail?
Romeo Salta:A number of, a number of motions in various cases that clearly were of a nature that had far too much legal sophistication for an inmate in jail, the average inmate in jail, and would be one thing if sometimes an inmate is unhappy with their assigned attorney. So they write to, you know, asking for a new lawyer. That happens all the time. However, those those are different. There was a definite change, and it coincided with your entry into the jail talking to people.
Scott Fenstermaker:Were you in this email asking that she consider applying for an interim emergency suspension of me from the bar? Alright. Did you urge her to consider that I had demonstrated over a matter of months now a pattern of behavior that harms people?
Romeo Salta:That will be a direct quote from the second page. Yes.
Scott Fenstermaker:Question. To the extent that you already haven't described my my misconduct, what other misconduct had I engaged in?
Romeo Salta:At the time of the sending of this email, I mean, really, just if you reference the first, you know, the rest of the balance of the email, there's State versus Adrianna West. I had handled that matter. You had been appointed. You withdraw. You withdrew because you had a conflict with all district 7 cases with your own prosecution issues, but then you kept filing motions for miss West despite another attorney having been appointed.
Romeo Salta:That's that's one example. And the involvement again with mister Witham's matter, despite very very clearly not ever being counsel of record. That was obviously concerning as well, especially when one looks at the significance of the Witham matter.
Scott Fenstermaker:Next question. And then at the very last sentence of this email, you then you said he needs to be stopped. What if my behavior needed to be stopped?
Romeo Salta:Essentially, what I view to be interference with attorney client relationships that were established, that were working their way through an overburden, clogged, and frankly, somewhat insane criminal justice system, adding more noise to it, adding more challenges, adding more interposing into those relationships. That that needed to stop. And when you get to the actual basic ethics of the legal profession, interference with an attorney client relationship is one of the gravest things you can ever do, in my personal view, as an attorney. That's, again, a sacred relationship that you do not mess with. If you had wished to consult, you could have approached the attorney of record.
Romeo Salta:I'd like to consult. I'd like to do this. I'd like to do that. I'd like to help you out. That did not apparently ever happen, or at least it couldn't it didn't happen with mister Witham's case vis a vis mister Steed.
Scott Fenstermaker:Question. Is there a rule of professional responsibility that prohibits me from speaking with represented clients?
Romeo Salta:I would have to look through the rules of professional professional conduct. I'm not sure. I'm not an expert on the bar rules I speak of. Apparently, rule 4.2, contact with a represented individual.
Scott Fenstermaker:Next question. And in this matter, in the Witham case, did you have concerns about how that potentially obstructed the case?
Romeo Salta:Yes.
Scott Fenstermaker:Question. And can you briefly outline your concerns what your concerns were, your opinion of what the issues were?
Romeo Salta:Oh, it's challenging because there's just a knee jerk reaction because it's such an ethical violation. But in more specific more specifically, I was concerned that he could be counseling defendants to take whatever certain different path that their own counsel had suggested. I was familiar from my own brief practice as a defense attorney that inmates are essentially trying to get anything, understandably that they can out of anybody that will come in and talk to them. I myself had people, defendants talk to me or try to talk to me when they were represented by somebody else when I was a defense attorney because they felt I might do a better job. So, I mean, they they will reach out for anything that will give them any kind of different opinion than their own learned counsel will give them.
Romeo Salta:And I was concerned that that the advice that they could be getting from their own counsel, which would be which would be great, could be countermanded by mister Fenstermaker's interference.
Scott Fenstermaker:Question. And specifically, when you made the referral after receiving that email for the investigation request for investigation, Were you concerned that that the discovery practice in attempting to get evidence in the with with the matter had been impacted by mister Fenstermaker's involvement?
Romeo Salta:Yes, actually. I was really, kind of very concerned that perhaps, you know, mister Fenstermaker was access accessing all of this discovery that frankly was privileged between mister Witham and whoever his attorney was at the time.
Scott Fenstermaker:Next question. And you had mentioned during your testimony that the discovery was privileged. Is the discovery privileged or is it the communications between the attorney and the defendant that is privileged?
Romeo Salta:I think both actually. I mean, obviously, I think mister Witham could probably waive his own privilege as far as attorney client goes. However, the issues become, especially with that case, we had a 6 year old victim and was the allegations were frankly horrific along with her the child's mother. So we're talking about personal sensitive data involving 2 victims that that essentially, from state's perspective, were held at various weapon point for somewhere in the 36 hour range in and around mister Witham's home. All the discoveries surrounding that, plus there were additional individuals found at the home, I believe, when law enforcement went in to seize everything.
Romeo Salta:So I think that there was a lot of extra personal information that would go out in discovery that that would be that really should not go to people who are not entitled to receive it because it's personal identifying information.
Scott Fenstermaker:Question. Was there a protective order in place in mister Witham's case with respect to that discovery?
Romeo Salta:I cannot recall whether we ever got a protective order or not. We may have. I don't know if we got a I don't know. I can't, remember if there was a CAC interview with the child. If there was, we probably would have had a protective order for that.
Romeo Salta:However, I can't recall honestly at that at this point. There was something like 30 discs. So
Scott Fenstermaker:Question. Now you had mentioned that I had also interfered with a number of other matters other than mister Witham's. Correct?
Romeo Salta:I my understanding was you were discussing you were going in representing to be an attorney and talking to individuals in the jail that already had other counsel. Yes.
Scott Fenstermaker:Question. When you say I represented to be an attorney, was there was there a time that I represented to be an attorney that I was not?
Romeo Salta:I have, I'm I'm going to say I can't state that to a certainty.
Scott Fenstermaker:Okay. So that's the end of the testimony with respect to that particular complaint to the bar counsel. One question I have for you is that she stated that the discovery that I was apparently looking at was privileged between the defendant and his attorney. Have you ever encountered a situation, absent a protective order being in place, where discovery in a case is privileged in any way?
Romeo Salta:Let me see. Well, first of all, the the privilege can be waived by the, by the client. In this case, it would be the defendant. So, just even if there is something privileged, it's not, it does not mean that, it can't be divulged to, say, another attorney. In this particular case, it it appears that, we we we aren't really talking about the substance of the evidence, just that there was a DVR.
Romeo Salta:If I'm I mean, I do do I have that correct?
Scott Fenstermaker:I think it's broader than that because what she's saying here is that I was looking at discovery in a case and that I did not have the right to look at it because it was privileged. Have you ever have you ever encountered a situation where discovery forget about the communications between an an attorney and his client.
Romeo Salta:Well, discovery in and of its in and of itself. Discovery. No.
Scott Fenstermaker:So in in this her testimony, she described the discovery as being privileged. Correct? What what concerns would you have as a defense attorney criminal defense attorney with respect to a prosecutor claiming that discovery was privileged in the sense that a defendant could not have another independent attorney look at it?
Romeo Salta:Well like I said, the defendant can show it to whoever he wants
Scott Fenstermaker:I'm not the question the question is from a public policy standpoint, what problems can be generated by a claim of privilege that prohibits a defendant from showing his own his or her own discovery to independent defense attorneys.
Romeo Salta:Well, again, I mean, these you're infringing on the rights of the defendant to consult with counsel of his choosing.
Scott Fenstermaker:Okay. The right the right to counsel to of their choosing, is that only the the attorney that the person currently has in court or can a defendant consult with independent attorneys to get another opinion?
Romeo Salta:As far as I know, a defendant can absolutely consult with other attorneys. It's his it's his privilege.
Scott Fenstermaker:Okay. And and based upon that, what concerns would you have as a defense attorney with a rule that made discovery privileged such that the defending couldn't show it to anybody else?
Romeo Salta:That's a great concern because, number 1, the defendant has the right to consult with other attorneys. And if he's blocked by a prosecutor well, blocked indirectly because if the prosecutor can block the attorney, that would infringe on the rights of the defendant to, to access other opinions. I mean, that just doesn't make any sense. From a public policy standpoint, I mean, it violates the defendant's rights, and it, it it, puts a chilling effect on the, on the defense bar.
Scott Fenstermaker:Okay. And and based upon your over 40 years of experience as an attorney and 20 years of experience as a criminal defense attorney, is this what you heard in this particular colloquy, is it an unprecedented?
Romeo Salta:Well, I've never seen it before at all. I don't know if it's unprecedented. Let's put it this way. I've never seen it.
Scott Fenstermaker:Have you ever heard of it before?
Romeo Salta:No.
Scott Fenstermaker:So we're gonna get to our last example, with this particular issue in opening up the the criminal investigation and the the bar complaint against this attorney. And the the last example is a email that that, the prosecutor sent to the bar counsel where she described, the attorney's involvement as a crisis that is exigent in my view. And that is an that's a direct quote from the email where she's describing the attorney's involvement with with represented defendants as a a crisis that is exigent in her view. And she also testified about this at the same hearing and we're going to read from that testimony as well. Question, have you reviewed defendant's exhibit 66 for identificaiton?
Romeo Salta:Yes
Scott Fenstermaker:Question. Do you recognize it?
Romeo Salta:It appears to be an email from me to bar counsel Sheridan copying ADA Toffolon.
Scott Fenstermaker:Question. When you sent this email, miss Staples, assuming that that you did send it, were you aware that deputy district attorney Toff Toffelon was also gathering materials working on a possible referral to the board of overseers of the of the bar regarding me?
Romeo Salta:I it was. I believe it was my understanding that he may have been. Yes.
Scott Fenstermaker:Question. And were you also conducting your own efforts to gather materials to refer to the board of overseers of the bar regarding my conduct?
Romeo Salta:I don't believe so. No.
Scott Fenstermaker:Question. And you just testified that you were not gathering materials regarding my conduct.
Romeo Salta:I I don't recall. I I don't think I I'm not going to speak to whether I ever filed a formal bar complaint because I I think that's privileged. But I don't recall ever.
Scott Fenstermaker:Did you have a well, let me let me ask another question.
Romeo Salta:Sure.
Scott Fenstermaker:In the in the exhibit that exhibit 63 I'm sorry. The email that is at exhibit 63, did you not attach 5 attachments that you sent to the bar council's office?
Romeo Salta:Yes. I see that. Yes.
Scott Fenstermaker:Okay. Were those not gathered by you?
Romeo Salta:Gathered by me?
Scott Fenstermaker:Yes.
Romeo Salta:Define gathered.
Scott Fenstermaker:Did you not somehow or other get them together so that you could attach them to the email that is defendant's exhibit 63?
Romeo Salta:Yes. I did. I did attach them in that email. Yes.
Scott Fenstermaker:So you were at some level gathering documents or information regarding a potential referral regarding me to the board of overseers of the bar. Correct? No. In in that particular case, she essentially was describing my involvement with meeting with defendants as an exigent crisis and that that it essentially needed to end. In your experience as a criminal defense attorney over not over 20 years, but 20 years of experience as a criminal defense attorney, is it problematic for a defense attorney to meet with a defendant regarding his case where that defendant is represented some where by somebody else, and the attorney who's meeting with the defendant has been asked to go meet with the defendant by the defendant.
Romeo Salta:Well, like I said earlier, I mean, it happens a lot. And I I believe she even admitted in her testimony earlier that we read that when she was defense counsel, other, you know, defendants approached her while they were being represented by other counsel. So it happens. It happens a lot. And if they're grasping at straws, my answer to that is let them grasp at straws.
Romeo Salta:They have every right to hear other opinions and, and to discuss their case and get second and third opinions if they want with other attorneys.
Scott Fenstermaker:From both a public policy and from a legal perspective, what problems could prohibiting defense attorneys from visiting with already represented defendants present?
Romeo Salta:I would see it as a violation of the defendant's right, to to consult with counsel. He has an absolute he or she has an absolute right to do that. And, and moreover, to put possible sanctions on the defendant for doing that, I mean, if if that becomes a common practice or even if it's, if it's put out there that that's a possibility, I don't see why any attorney would wanna consult with any defendant. I mean, well, I mean, he would he would I mean, think about it. I mean, he would have to he or she would have to go to court, make a motion to be substituted as counsel before even speaking to the defendant.
Romeo Salta:I mean, how ridiculous is that?
Scott Fenstermaker:Well, you said you you just said, the imposition of sanctions against the defendant. Was there any indication in any of this evidence?
Romeo Salta:Not the defendant. I'm sorry. Did I say I meant defense attorney, if I said
Scott Fenstermaker:What potential problems could arise if the court or the the the disciplinary authorities were to impose sanctions upon a defend a defense counsel because he or she was meeting with defendants who wanted his or her advice regarding their case.
Romeo Salta:Well, I mean, the ramifications of that would be that nobody would would talk to any defendant that's that's being represented.
Scott Fenstermaker:So it would have a chilling effect on the defense bar.
Romeo Salta:Of course it would. Of course it would. And and on the rights of the defendant.
Scott Fenstermaker:Okay. And and is there anything else that you based upon the the 5 separate incidents here that we just described and and discussed with the listeners, is there anything else you wanna add to this podcast?
Romeo Salta:From what we've read, I don't see anything that in any way adversely impacted or potentially would adversely impact the defendant's right. I mean, the prosecutor here is is going on and on and on about, the the rights of the of the defendants and the inmates that shouldn't be infringed or whatever. I I don't see anything here that could possibly be considered detrimental to the defendant's case whatsoever. I'll I'll give you an example. I don't see anything as egregious.
Romeo Salta:For example, let's say, a a a defendant or an inmate wants to testify before a grand jury, and his lawyer says, that's a stupid idea. I don't think you ought to do it. Oh, then the defendant wants a second opinion, and consults with another attorney. And the other attorney says, sure. You should do that.
Romeo Salta:That would be highly inappropriate because those attorneys should know, the dangers of of testifying before a grand jury. Now in this particular case, I don't see anything that even comes close to being any kind of dangerous move on the part of the attorney that that could, adversely impact the the rights of the defendant or the case of the defendant. Nothing was said about that. Nothing was said about what the attorney did, which was, improper, bad advice, whatever. So they don't even have that is my point.
Scott Fenstermaker:Do you do you see anything that the attorney here is alleged to have done that was either criminal nature or in violation of any disciplinary rule of which you are aware?
Romeo Salta:No. I don't see any evidence of bad advice.
Scott Fenstermaker:Okay. So, that I think that that pretty much wraps up this episode of the podcast, and, I think that the next episode, is probably gonna be, an interview with a defendant who was prosecuted in Maine for trespassing because he went to go vote on election day at his lawful polling place. We're gonna try and have him actually be interviewed about his case, and just describe the nature of the prosecution and the circumstances that led him to be prosecuted for trespassing because he went to his lawful polling place to vote. Do you have anything else to add, Romeo?
Romeo Salta:No. I think that's it for now.
Scott Fenstermaker:Okay. Thank you very much for being, helping me host this episode and, we look forward to the, 6th episode shortly.
Romeo Salta:See you next time, Scott.
Scott Fenstermaker:Thanks, Romeo. Have a nice day.
