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State v. Sherwood4/19/2002
overnment in its further investigation of the case." United States v. Levy, 577 F.2d 200, 208 (3d Cir. 1978). Although a DUI prosecution is a relatively simple matter, the point remains that any knowledge by the prosecution of a defendant's private contact with his attorney undermines the integrity of the entire process. Here that concern is justified because the state's attorney spread the whole conversation on the record to establish that defendant was not inhibited. Even if the state's attorney had not acted so carelessly, however, disclosure of the conversation to at least the trial court would be required to determine whether defendant was prejudiced by the violation of his right to consult an attorney. Given the sensitivity of the information contained in an attorney-client conversation and the uncertainty of assertions of its non-use, other cases that have confronted the violation of attorney-client confidence have concluded that dismissal is the only remedy that would "effectively discourage the odious practice of eavesdropping on privileged communication between attorney and client." State v. Cory, 382 P.2d 1019, 1023 (Wash. 1963).
Finally, I am persuaded that dismissal of the case is warranted in light of the reason advanced by the State to justify its routine procedure. The State claims that the reason the videotape is not stopped during conversation with attorneys is to avoid accusations that the tape had been tampered with. It cannot be the case, however, that the state police may commit one flagrant violation of the law by taping confidential conversations in order to avoid potential, future allegations of another. Even if the concerns for these potential allegations are valid, recording conversations with attorneys is hardly the only solution. For instance, the police could at least inform the suspect that he was being recorded, the tape could be stopped and started with consent from the suspect, or the police could disconnect the recording of volume leaving only the image for that period of time. Thus, the State has failed to identify any exigency that would necessitate such an intrusive violation into defendant's rights.
Almost twenty years ago, we found no violation of the right to counsel when police officers were nearby the defendant when he spoke with his attorney because the defendant posed "a legitimate security risk." State v. Lombard, 146 Vt. 411, 415, 505 A.2d 1182, 1185 (1985). At the conclusion of that opinion we warned that "we in no way sanction or approve of police conduct which effectively prevents defendants from freely communicating with their attorneys in private. Defendants must be afforded a meaningful opportunity to consult with counsel before submitting to a breath test. Police practices [that] unjustifiably interfere with this right cannot be tolerated." Id. Today, the Court repeats this warning at the end of its opinion. Ante, at 8. We cannot expect police to take these admonitions seriously if there are no consequences for failing to heed the Court's own cautions. I respectfully dissent.
I am authorized to state that Justice Skoglund joins this dissent.
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