Oregon: No Presumed Prejudice for Violation of Attorney-Client Communication
by Mark Wilson
On August 20, 2014, the Oregon Court of Appeals upheld a lower court’s refusal to dismiss criminal charges against a defendant because a detective had read his legal mail.
Michael James Russum, 33, was charged with four sex crimes against his step-daughter in April 2010 and detained at the Multnomah County Jail.
Jail policy allows for the inspection and copying of outgoing mail unless the prisoner writes “Legal Mail” on the envelope. Incoming mail which is “clearly marked” from an attorney or law firm must be inspected for contraband in the prisoner’s presence.
After Russum’s arrest, Detective Hickey suspected that Russum was sending letters through his grandmother to influence his step-daughter’s mother, who was a potential witness. At Hickey’s request, jail staff began opening Russum’s mail and scanning the contents into the jail’s computer system.
In July 2010, Deputy Watts, who coordinated the jail’s mail monitoring program, sent Hickey an e-mail with 30 to 50 attachments consisting of Russum’s mail between June 1, 2010 and July 1, 2010. Each attachment was a scan of an envelope or a single page of a letter.
In August, Watts sent Hickey a second e-mail with additional copies of Russum’s mail as attachments. A third batch of Russum’s correspondence was sent to Hickey before the monitoring request expired on August 27, 2010.
Hickey claimed that he opened the attachments in no particular order. While reading an attachment to the second e-mail, Hickey became curious “who Russum was telling this particular piece of information to.” He opened the preceding page and discovered that the letter had been sent to Russum’s attorney, Mr. Barnett. The envelope had not been marked “Legal Mail” and did not address the recipient as an attorney.
Hickey immediately informed John Casalino, the prosecutor over Russum’s case, that he had read the letter. Casalino instructed Hickey not to communicate any contents of the letter to him and to seal it and await further instructions.
Casalino then e-mailed Russum’s defense counsel to explain what happened. Hickey claimed that he printed the letter, sealed it in an envelope and mailed it to Barnett. He then deleted the e-mail from his computer. Barnett never received the letter.
Hickey asked Watts to e-mail him a scan of only the envelope to Russum’s letter to Barnett. Watts could not separate the attachment and re-sent the entire batch. Hickey said he did not open any of the attachments and told Casalino what had occurred. The prosecutor instructed Hickey not to do anything and Hickey did not delete the e-mail. Casalino again contacted Barnett to explain what happened.
Barnett informed Russum about the situation and told him not to worry because it was probably a mistake. In addition to the unmarked letter to Barnett, jail officials had also opened “five or six envelopes with the inscription ‘Legal Mail’” that had been sent to or from Russum.
Russum moved to dismiss the indictment with prejudice for intrusions into his attorney-client correspondence. After hearing testimony from Hickey and Watts, the trial court found both were credible. Hickey testified that he did not change his investigation or act on the information in the letter to Barnett; he claimed that his investigation culminated in Russum’s arrest in April 2010, about four months before he saw the letter, and he did not share the contents with Casalino or any other law enforcement officers.
The trial court found it “very troubling” that the jail had been opening legal mail. Nevertheless, the court held that Russum failed to show any tainted evidence or attorney-client communication had been shared with the prosecutor. As such, the court refused to dismiss the charges with prejudice. Hickey was precluded, however, from testifying as to any information discovered through Russum’s letter to Barnett. The court also invited defense counsel to alert the court if he felt Hickey’s testimony had been influenced by the letter. Counsel did not do so, and Russum was convicted at trial.
Russum appealed, arguing that Hickey had violated his rights under the Oregon and U.S. constitutions when he read his legal mail, which required dismissal of the charges.
The Oregon Court of Appeals disagreed, concluding “that no presumption of prejudice arises in the absence of evidence of a purposeful intrusion that conveys the content of attorney-client communications to the prosecution.” Rather, “[i]f the intrusion is inadvertent, defendant must offer some evidence to show prejudice to his constitutional rights, such as the disclosure of trial strategy to the prosecution or the production of tainted evidence.”
Restricting its opinion to the facts before it, the appellate court explained that “if a purposeful intrusion takes and conveys privileged information, it will remain for another case to determine what prejudice should be conclusive or might be rebutted by an appropriate standard of proof if the state could show that defense strategy or evaluations were not actually communicated to the prosecution, that no evidence resulted from or in response to the privileged information, and that no other compromise of defendant’s constitutional rights occurred.” See: State v. Russum, 265 Ore. App. 103, 333 P.3d 1191 (Or. Ct. App. 2014), review denied.
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Related legal case
State v. Russum
|Cite||265 Ore. App. 103, 333 P.3d 1191 (Or. Ct. App. 2014), review denied|
|Level||State Court of Appeals|