Proving Interference With Counsel Claims
After State v PowersPROVING
INTERFERENCE WITH COUNSEL CLAIMS
AFTER STATE V. POWERS
Bradley
D. Myerson, Esquire
5261 Main Street P.O. Box 915 Manchester Center, Vermont
05255
E-mail:
cmylwyr@sover.net
Website:
www.mylwyr.com
One of
the first questions to ask a prospective D.W.I. client
is whether they were aware of video cameras at any point
of the processing. The State Police and certain Sheriffs
and local Police Departments video tape both the
roadside and the in-station processing. If the client
remembers that there were video cameras present, was he
aware that they were being used? If he was being video
taped by the side of the road, this could suggest to the
client he was also being tape recorded or monitored once
inside the station. The client should also be asked 1)
where the cameras were positioned in the room, 2) when
and how he first became aware of them during the
processing and 3) whether he was told or had reason to
believe that he was being electronically monitored or
video taped - including whether the officer mentioned
that the video would be shut off during the conversation
with counsel.
Positive
answers to these questions can then lead to a discussion
of whether the client was inhibited in any way by the
presence of the cameras. It is good practice to request
a copy of any video, (don’t forget the cost is now
$20.00), even if the D.W.I. processing form doesn’t
indicate that the client was video taped. However, it is
wiser to first establish the client’s awareness of the
video cameras, and his belief that he was being
monitored or recorded, before determining whether either
of those activities impacted upon his conversation with
counsel. It is assumed, of course, that the suspect did
exercise his right to counsel; if he did not, even if
his exercise of that right was deterred by his belief
that he was being video taped, a resulting motion to
suppress the breath test results or refusal will likely
be unsuccessful.
It is
well settled that any demonstrated police actions which
“cloud” the informed, voluntary nature of a D.W.I.
suspect’s decision whether or not to give a breath
sample must result in suppression of the test results.
State v. Carmody 140 Vt. 631, 636 (1982); State v.
Fredette 167 Vt. 586, 587 (1997) (mem.) (The “...court
will not tolerate deliberate efforts by law enforcement
personnel to thwart an arrestee’s meaningful opportunity
to consult with counsel.”).
A D.W.I.
suspect’s right of confidential consultation with his
attorney initially springs from 23 V.S.A. § 1202(c),
which affords him the right to speak with an attorney
before deciding whether to give a sample of his breath.
State v. Lombard, 146 Vt. 411, 415 (1985). That decision
is, of course, a crucial one, and it must be entirely
voluntary in nature. State v. Baldwin 140 Vt. 501, 513
(1981); see, also, State v. Duff, 136 Vt. 537, 539
(1978). Otherwise a “flaw” may result from any
unauthorized police conduct impinging upon the decision
making process, which can require suppression of the
test results. State v. Carmody, supra at 636; State v.
Lombard, supra.
The right
to counsel “concerns an arrestee’s opportunity to
consult freely with counsel...” State v. Fredette 167
Vt. 586, 587-88 (1997) (mem.)
The
Vermont Supreme Court has held that there must be
prejudice shown by a defendant who, as here, is claiming
interference with the statutory right of counsel where
the decision whether or not to take the breath test is
concerned. State v. Roya 174 Vt. 451 (2002) (mem.) (No
grounds to suppress breath test results where defendant
could not show prejudice arising from being furnished
insufficient notice of right to counsel); State v.
Sherwood 174 Vt. 27 (2002) (Where police video taped
defendant’s conversation with his attorney, without the
defendant’s knowledge, suppression was not warranted as
defendant could not show either that the taping deprived
him of a meaningful consultation with counsel or that he
was otherwise prejudiced). However where a defendant did
not prove a security risk, and testified that the close
proximity of the policeman during his consultation with
counsel prevented him from asking certain questions of
his attorney, suppression of the breath test results was
ordered. State v. Wright 7 Vt. Tr. Ct. Rptr. 230, 231
(2003) attached as an “Appendix” (construing Roya and
Sherwood).
Even
the most recent line of Supreme Court cases requiring a
finding of prejudice where a claim is made with
interference with counsel, do not modify the over
arching rule that in order for consultation with counsel
to be meaningful it must be private and unconstrained.
...a
defendant’s statutory right to counsel is
violated where the police unjustifiably monitor
a defendant’s legal consultation and the
monitoring inhibits, coerces or otherwise
restricts the defendant’s ability to
meaningfully engage with his attorney...”. State
v. Sherwood, supra at 82 (citations omitted).
State v.
Lombard, supra, at 415, looked to 3 main criteria as
indicating whether a violation of the right to counsel
provided under 23 V.S.A. § 1202(c) occurred. First, did
the defendant present a “legitimate security risk” which
clearly justified the Officer’s continued presence
during the telephone consultation? Next, was there any
evidence suggesting that defendant “felt inhibited,
coerced or restricted” in conferring with counsel in the
presence of the video camera? Finally, did any part of
the attorney-client consultation assist the prosecution
in any way? See also State v. West 151 Vt. 140, 145
(1988) (Construing Lombard in applying a “totality of
the circumstances” test to determine whether reasonable
efforts made to allow private consultation with
counsel).
State v.
Powers 2004 Vt. 39, 176 Vt. 444 (2004) clarifies the
standards to be followed in proving that police
monitoring of a D.U.I. arrestee’s conversation with his
attorney interfered with the § 1202(c) right to have a
meaningful and open consultation before deciding whether
to provide a breath test. In Powers, a D.W.I. arrestee
asked and was told that his interview in the station was
being recorded on both audio and video tape. When Mr.
Powers requested an attorney, he was not told that the
officer would turn off the recording. He testified that
he could not ask his on-call attorney about the impact
of his prior D.W.I. arrests because, “I didn’t feel
comfortable discussing my situation because I wasn’t
sure if there was something I would say that could be
held against me”. Id. 2004 Vt. 39 ¶ 3, 176 Vt. at 447.
Accordingly, he refused to provide a breath sample. A
portion of Mr. Powers’ conversation with his attorney
was tape recorded and actually admitted into evidence at
the separate Civil Suspension and suppression hearings.
Restating
the “totality of the circumstances” test set down in
State v. West, supra, the Powers court held:
In summary, when faced with a challenge under §
1202, where defendant does not present a
security risk, a court must determine if the
police justifiably monitored the consultation
and whether that monitoring caused defendant to
feel inhibited during the conversation. This
inhibition is judged using an objective
standard. The standard asks the following
question: looking at the totality of the
circumstances, given the nature of the setting,
how would a reasonable person in the defendant’s
position have understood his situation? Id. at ¶
8, 176 Vt. at 449-50 following State v. West,
supra. 151 Vt. at 145.
In
reversing both the trial court’s denial of the Motion to
Suppress, and judgment in favor of the State on the
Civil Suspension case, the Powers court found that
police interfered with the defendant’s right to a
private and meaningful consultation with his lawyer,
even though the officer turned off the audio recording
of the processing...”because the defendant was told that
the processing was being recorded, he reasonably
believed that his conversation with his attorney was
also being recorded” id. 176 Vt. at 450 (emphasis
added). From these facts the Powers court found that the
State had violated Mr. Powers’ “right to a reasonably
private consultation with (his) attorney”. Id. comparing
State v. Sherwood, supra.
The
Powers court next reviewed the record for any evidence
that “defendant felt inhibited in his consultation with
his attorney”, in order to decide whether that
consultation was meaningful. Id. The defendant’s
testimony that he didn’t “feel comfortable discussing my
situation”, based upon his belief he was being recorded,
was evidence of such inhibition. Id. Interestingly, no
mention was made of whether the defendant changed his
behavior in order to gain more privacy in shielding
himself from the video camera than speaking with
counsel. Even though the police weren’t recording his
conversation, Mr. Powers’ reasonable belief that he was
being taped was pivotal to the Court’s finding that the
police violated the statutory right to counsel.
Again
relying upon State v. Sherwood, the Powers court raised
one final bar to be cleared in order to justify
suppression: was there a “causal nexus...between the
alleged illegality and the evidence of defendant seeks
to (suppress)” Id. 176 Vt. at 450-51 quoting State v.
Sherwood, supra, 174 Vt. at 33. Again Mr. Powers’
testimony about “feeling inhibited about what he could
reveal to the attorney about his prior record” was
objective proof which furnished the “sufficient causal
nexus between the police violation of defendant’s right
to a meaningful consultation with an attorney and his
refusal to submit to the evidentiary breath test” to
justify suppression. Id. at 451. This finding of
prejudice rested upon the fact that “Defendant could not
ask the questions necessary to get the information he
needed to make an informed opinion”. Id.
Lessons
To Be Learned From State v. Powers
Where the
D.W.I. arrestee did not present a security risk, and
will testify that either police were present during his
conversation with his attorney, or he believed he was
being subjected to video monitoring, the following
questions should be asked in order to prove a motion to
suppress, or for judgment in the Civil License
Suspension case for failure to comply with 23 V.S.A. §
1202, see 23 V.S.A. § 1205(h)(5):
-
did police actually
monitor the conversation?
-
was the client
handcuffed to a wall or bench? • where was it
positioned in the processing room?
-
if there was a video
camera was it activated?
-
did the client ask
or was told that the camera would be shut off,
or the sound deadened during conversation with
counsel?
-
where were the
police during the video monitoring?
-
did defendant know
where they were?
-
as in Powers, did
the defendant believe that his conversation with
counsel was being recorded either because either
(1) police did not tell him that the camera
would be shut off, or 2) the defendant knew that
the entire processing was being video taped (be
sure to ask if the client was aware that he was
being video taped inside the police cruiser,
which would reinforce his belief that he was
being taped during his conversation with
counsel)?
-
did the defendant
change his behavior to gain more privacy and
shield himself from the cameras, by lowering his
voice, projecting his voice toward the floor,
turning away from the camera, bending his head
(and speaking into his chest) or cupping his
hand over the receiver?
-
how brief was the
conversation with the attorney?
-
how much of the
conversation time recorded on the D.U.I.
processing form was spent actually receiving
advice from the attorney as opposed to the
officer speaking with counsel (obviously the
shorter the conversation the stronger the
argument that the client felt inhibited because
he could not get all of the information
necessary to make an informed decision)?
-
was the client a
repeat offender, and/or did he actually refuse
the test? Such facts would underscore the need
for a more detailed consultation which, if only
several minutes long, coupled with testimony
about the inability to ask more questions
because the suspect believed he was being
monitored, could establish the prejudice
necessary to justify suppression.
-
can defendant show
prejudice by demonstrating how the monitoring
interfered with his ability to get all the
necessary information from his attorney in order
to decide whether to take the test? This is a
cause and effect relationship where the
defendant only has to satisfy a minimal burden
of production on showing that the interference
with counsel influenced in some way either his
refusal or a decision to take the breath test,
which choice would have been different had full
access to counsel been given. See State v. Roya,
supra 174 Vt. at 453.
-
were there questions
he wanted to ask counsel but could not because
he was afraid of being overheard? Under Powers
this is an objective test which must be
satisfied by testimony from the client himself.
However, the Powers court cautioned “against
revealing the contents of privileged attorney
client communications in an attempt to
demonstrate that the defendant suffered no
prejudice”. Id. 176 Vt. at 447 ftn. 2.
SETTING
AND COLLECTING YOUR FEE
Bradley
D. Myerson, Esquire
5261
Main Street P.O. Box 915 Manchester Center, Vermont
05255
E-Mail:
cmylwyr@sover.net
Website:
www.mylwyr.com
The
practice of law is as much a business as it is a
profession. We have the right to charge a reasonable fee
for the service we provide to the client, subject to the
constraints of Vermont Rule of Professional Conduct
1.5(a) which requires us to weigh, inter alia, what
other attorneys in the area customarily charge for
defense of D.W.I. cases, the amount of the fee and the
results obtained, the time limits imposed in defending a
D.W.I. case, i.e. court scheduling orders and motion
deadlines, and the “experience, reputation and ability
of the lawyer...performing the services”. Prof. Cond. R.
1.5(a)(3),(5),(7). So how do you set a fair fee? How do
you collect it?
When a
prospective D.W.I. client calls, give them roughly 10
minutes of time in order to get the facts of their case
and have them feel comfortable with you before
discussing fees. Most clients want more answers to their
questions than can be provided over the telephone in a
10 minute conversation. I always suggest to prospective
clients that an office consultation, either in person or
by telephone, would allow for a more detailed analysis
of their case, the interplay between the D.W.I. and
Civil Suspension cases, and how the D.W.I. and Civil
Suspension matters would be defended. The client is told
that they would be charged my standard hourly rate of
$160.00 per hour for this consultation, which normally
lasts for 2 hours, and is payable by the time we meet. I
also decide 1 whether the client is simply looking for
free advice, or is actually able to pay for the defense
of their cases, and will act accordingly.
At the
end of the office consultation and upon review of any
processing materials I tell the client what kind of case
they have, the chances for success of any motions , the
likelihood of a reduced charge, and other possible
outcomes. The client must be reminded that they are
facing two separate charges, the criminal D.W.I. charge
as well as the Civil Suspension case. Much care should
be given to the difference between the Civil and
Criminal matters. I charge a separate fee for each, with
the Civil Suspension fee being all inclusive and the
D.W.I. defense fee taking the case through to Calendar
Call, after pre-trial motions have been decided. A
suggested fee retainer is attached. Any non-D.W.I.
offenses, such as drug possession, should be handled by
a separate retainer charging a separate fee.
If the
client decides to hire me, I consider the consultation
fee included in the fee retainer, and will refund the
consultation fee back to the client. I do not charge for
out-of-pocket expenses (telephone, mileage, video tape,
etc.) except for experts, demonstrative evidence, etc.
If I have to travel outside of Bennington County I will
slightly adjust the fee to account for additional travel
time spent.
I also
include language in the retainer agreement calling for a
reduced fee if the D.U.I. and Civil cases settle at
arraignment, with the unearned balance of the underlying
fee retainer being immediately returned to the client.
My fee retainer agreement also provides that the fees
charged for pre-defense of the D.W.I. and Civil
suspension cases are flat fees which are non-refundable
if there is no settlement within one week of
arraignment. This is intended to cure any dispute over
the fee where the client rejects an offer made at
arraignment, but after the case is worked up and 2
litigated, elects to accept that same initial offer.
Consider
the time spent on the following tasks typical for
defense of a 1st offense D.U.I. and Civil Suspension
case, in setting your fee:
-
Initial Interview
(including initial phone intake)
= 2 - 3 hours
-
Arraignment (not
including travel time)
= 1 - 2 hours
-
Research and preparation
of all pretrial motions, pleadings and contested
issues, including interviewing witnesses, working
with the chemist, reviewing video tape and Data
Master Discovery.
= 5 - 6 hours
-
Preparation for and
attendance at (joint) contested Civil Suspension and
Pre-trial Motions hearing (not including travel
time).
= 3 - 5 hours
-
Post-hearing Calendar
Call and plea negotiations (not including travel).
= 1 - 2 hours
-
Client contacts not
included in above, including case wrap up.
= 1 hour
TOTAL = 13 - 19 hours
If the
typical first offense D.U.I. and Civil Suspension case
consumes 19 - 20 hours of your time, not including
travel, ask yourself whether your fee adequately covers
this amount of time, as well as accounting for your
level of experience, success in handling D.U.I. and
Civil Suspension cases, your reputation in your area,
and the time constraints imposed by the court. The Rules
of Professional Conduct do allow for charging a fixed
fee greater than the lawyer’s hourly rate multiplied by
the number of hours spent in defense of a criminal case.
Be wary
of the client who is lawyer shopping and claims that
attorney x’s fees are lower than yours. I also never
accept scheduled payments in D.U.I. cases or criminal
cases generally, unless 3 the matter is heading for
trial. If the client wants to hire you, and he realizes
that D.U.I. and Civil Suspension are very serious and
complicated charges, then he will pay the fee by the
date of arraignment. Accept scheduled payments at your
peril. If the prospect client is lawyer shopping, tell
him that there are certainly less expensive attorneys
out there, and perhaps counsel who charge more than you
do. You must be sufficiently confident in your ability
to defend the client, and in your track record in
handling these cases, in order to impress upon the
client that the fee being charged him is being
justified.
The fee
retainer should also specify that if the D.W.I. charge
is not resolved by Calendar Call, the client will have
to agree to a new retainer agreement covering trial
defense. I customarily charge by the hour for criminal
trial defense, and require a trial fee retainer to cover
at least the first 40 hours of preparation time, with
any unearned balance to be refunded to the client.
It is
more difficult to set an adequate fee where the case is
a D.U.I. 2nd offense or greater, a felony, i.e. serious
injury to another or where a blood test is involved.
Invariably I find myself under estimating flat fees
charged for these cases. I would generally add at least
$1,000.00 to my quoted fee for defending against a D.U.I.
2nd offense. Felonies, particularly involving blood
sampling issues, take up so much time and effort that I
have decided to simply charge by the hour for these
cases, with an average retainer of $5,000.00 to cover
the equivalent amount of time per hour. Any companion
charges, including vehicle forfeiture or immobilization
defense, may be governed by a separate retainer
agreement as they will require additional preparation
time.
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