Sixth Amendment Issue

Facts:

One week prior to the trial of John Doe, the district attorney invited John Doe's sister, Jane Roe, to speak with him. During the meeting, the district attorney told Jane Roe that he was offering John Doe thirty five years if he pleaded guilty to murder. The district attorney asked Jane Roe to communicate the offer to John Doe and arranged for her to speak with him in an attorney conference room at the county jail.

Issue:

Was John Doe deprived of the effective assistance of counsel through the district attorney's actions?

Discussion:

The Sixth Amendment of the United States Constitution, made applicable to the States through the Due Process Clause of the Fourteenth Amendment guarantees a defendant in a criminal proceeding the right to the assistance of counsel. U.S. Const. amend. VI; Gideon v. Winwright, 372 U.S. 335, 343-45 (1963). The right to the assistance of counsel attaches when the State initiates “formal adversarial procedures” against a person. State v. Frye, 897 S.W.2d 324, 328 (Tex. Crim. App. 1995). The State initiates formal adversarial procedures against a person when it charges him with a crime by complaint or indictment. Id. at 327-28. And after the State charges a person by complaint or indictment, the accused must have the assistance of counsel during all critical stages of the criminal proceedings against him. United States v. Ash, 413 U.S. 300, 313 (1973). Pretrial proceedings are critical stages when the defendant “requires aid in meeting with his adversary.” Hale v. State, 220 S.W.3d 180, 182 (Tex. App.—Eastland 2007, no pet. h) (citing Ash, 413 U.S. at 313; Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994).

If the State deprives the accused of the assistance of counsel during a critical stage of a criminal proceeding, then the court must tailor a remedy which will “neutralize the taint” of the State’s actions. Frye, 897 S.W.2d at 330 (citing United States v. Morrison, 449 U.S. 361, 365 (1961). Generally, a court neutralizes the taint of the deprivation of the assistance of council when it suppresses evidence discovered through the deprivation of the assistance of counsel or limits the State’s ability to cross examine a witness. Frye, 897 S.W.2d at 330. But when the accused “suffers demonstrable prejudice, or a substantial threat thereof,” and the court does not have the ability to suppress evidence or limit cross examination, the only means remaining to neutralize the taint resulting from the deprivation of the assistance of counsel is to dismiss the indictment against the accused. Id. (citing Emery v. State, 881 S.W.2d 702, 708-09 (Tex. Crim. App. 1994); Phillips v. State, 650 S.W.2d 396, 399-403 (Tex. Crim. App. 1983); United States v. Morrison, 449 U.S. 361 (1981).

In State v. Frye, the Court of Criminal Appeals dismissed the indictment charging Frye with theft of services after the State deprived him of the assistance of counsel. See generally State v. Frye, 897 S.W.2d 324 (Tex. Crim. App. 1995). After Frye’s right to the assistance of counsel had attached, an intern at the Harris County’s District Attorney’s office contacted him and questioned him. Id. at 325, 329-330. Although Frye constantly advised the intern that he was represented by Foreman, DeGeurin, and Nugent, the intern continued questioning him. Id. at 325. Some time later, the same thing happened when an assistant district attorney also called Frye and questioned him. Id. at 325-26. During these conversations, Frye revealed some of his defenses and strategies. Id. at 331. The Court of Criminal Appeals found both telephone conversations with Frye were critical stages of the proceedings against Frye and both deprived him of the assistance of counsel, prejudicing his defense because the State learned Frye’s defense strategies and evidence through the conversations. Id. at 330. And because the State learned of Frye’s defense strategies and evidence, the court held the suppression of evidence “was insufficient” to neutralize the taint resulting from the State’s actions. Id. at 331.

Like Frye, Doe was deprived of the assistance of counsel during a critical stage of the criminal proceeding against him when his sister, Jane Roe, spoke to him on behalf of the District Attorney. The meeting between Jane and Doe was a critical stage because it was a pretrial, adversarial meeting between an agent of the State and the accused, and Doe needed the assistance of counsel to ensure he did not reveal information vital to his defense to the State. See Hale v. State, 220 S.W.3d 180, 182 (Tex. App.—Eastland 2007, no pet. h) (citing Ash, 413 U.S. at 313; Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994). Although she was not employed by the State, Jane was acting as an agent of the District Attorney, like the intern in Frye. Seven days prior to trial, the District Attorney enlisted Jane, Doe’s sister who was under subpoena to be a witness for the State, to speak with Doe in jail. When she arrived at the jail, J.R. Kessinger, an investigator for the District Attorney’s office, arranged for Jane to speak with Doe in an attorney conference room and gave her his card with instructions to call him if she had any questions. Jane then spoke to Doe without Doe’s attorney present. And there is no substantive difference between the intern’s conversation with Frye and Jane’s meeting with Doe. Both the intern and Jane acted on behalf of the District Attorney. Neither Frye’s attorney nor Doe’s attorney were present during either conversation. Frye was deprived of the assistance of counsel, and so was Doe.

Because Doe was deprived of the assistance of counsel, the indictment against him must be dismissed. Although the hearing on the motion to dismiss Doe’s indictment did not indicate the meeting between Jane and Doe resulted in demonstrable prejudice, the meeting posed a substantial threat of prejudicing Doe’s defense. See Frye, 897 S.W.2d at 330 (stating “demonstrable prejudice, or a substantial threat thereof,” resulting from the deprivation of the assistance of counsel justifies dismissing an indictment against a defendant). The meeting occurred seven days prior to trial, and evidently, the State was concerned that it would not be able to prove its case against Doe. So the State enlisted the help of Jane to ensure Doe would be held accountable for the death of Joel Garcia. While she met with him, Jane, like the intern in Frye, learned of Doe’s trial strategy, his defenses, and the strengths and weaknesses of his case. All Jane had to do to prejudice Doe’s defense was call Kessinger and tell him all she had learned. And dismissing the indictment against Doe is the only remedy available to this court to “neutralize the taint” of the District Attorney’s actions. The meeting between Jane and Doe did not result in any evidence to suppress, and because Jane would be a witness for the State, the State would not be cross examining her, and therefore, could not be limited in cross examining her. Thus, the only means by which this court can ensure “reverence” for Doe’s Sixth-amendment right to counsel is to dismiss the indictment against Doe. See Frye, 897 S.W.2d at 331.