The People, Respondent,v.Marcellus Johnson, Appellant.

Brief

N.Y.February 16, 2016

APL-2015-00070 COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MARCELLUS JOHNSON, Defendant-Appellant. BRIEF FOR RESPONDENT IN RESPONSE TO AMICUS CURIAE SUBMISSION CYRUS R. VANCE, JR. District Attorney New York County Attorney for Appellant One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 PATRICK J. HYNES SUSAN AXELROD ASSISTANT DISTRICT ATTORNEYS Of Counsel JANUARY 26, 2016 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 POINT PROSECUTORS' REVIEW AND USE OF RECORDED UNPRIVILEGED PRISONER TELEPHONE CALLS IS CONSISTENT WITH INCARCERATED INMATES' SIXTH AMENDMENT RIGHTS. ................................................................................... 2 CONCLUSION ................................................................................................................... 15 TABLE OF AUTHORITIES FEDERAL CASES Maine v. Moulton, 474 U.S. 159 (1985) ................................................................................. 10 United States v. Henry, 447 U.S. 264 (1980) ................................................................... 10, 12 United States v. Levy, 577 F.2d 200 (3d Cir. 1978) ............................................................. 8-9 United States v. Mitan, 2009 U.S. Dist. LEXIS 88886 (E.D.Pa. 2009) ............... 5, 7-10, 13 United States v. Mitan, 499 Fed. Appx. 187 (3rd Cir. 2012) .............................................. 5-9 STATE CASES People v. Cardona, 41 N.Y.2d 333 (1977) ............................................................................. 10 -ii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARCELLUS JOHNSON, Defendant-Appellant. BRIEF FOR RESPONDENT IN RESPONSE TO AMICUS CURIAE SUBMISSION INTRODUCTION Pursuant to Rule 500.12(f) of this Court, the People of the State of New York respectfully submit this response to the brief filed in support of defendant-appellant by the Brooklyn Defender Services as amicus curiae. Amicus joins defendant in asking this Court to conclude that defendant's Sixth Amendment rights were violated by the introduction at trial of the recordings of a number of his unprivileged telephone calls made while incarcerated, which contained admissions concerning the robbery. In stressing its desire for such a ruling, amicus insists that the potential harm to a defendant goes beyond the fact that prosecutors can use a defendant's telephonic admissions of guilt at trial. Rather, amicus conjures up any number of harms and abuses that could occur from prosecutorial access to those calls. Amicus does not suggest that defendant suffered any of these injuries, but rather urges this Court to rule that the Sixth Amendment prohibits prosecutors from having access to unprivileged prison calls so as to guard against the possibility that some other defendant might find himself or herself facing these hypothetical situations. As shown below, the arguments and analyses amicus offers in support of its request do not withstand scrutiny. POINT PROSECUTORS' REVIEW AND USE OF RECORDED UNPRIVILEGED PRISONER TELEPHONE CALLS IS CONSISTENT WITH INCARCERATED INMATES' SIXTH AMENDMENT RIGHTS (Answering Amicus's Brief). Amicus concedes that the City of New York Department of Corrections (DOC) is entitled to tape-record prisoner telephone calls. Amicus also does not contest that this defendant, like all inmates who are incarcerated prior to trial, was notified that unprivileged telephone calls will be tape-recorded and monitored by DOC. Rather, amicus focuses on the fact that these recordings may be provided to prosecutors upon their request and insists that this arrangement "renders the legal proceedings unfair" (Brief at 8). In an effort to show just how unfair, amicus offers potential adverse consequences that could arise from prosecutorial access to these unprivileged communications. For instance, amicus opines that prosecutors would be willing to use the information learned from a prisoner's tape-recorded conversations to do such -2- things as "leverage a defendant's financial limitations or family obligations to target plea negotiations to force a defendant to plead out for a less preferential sentence" (Brief at 7). Amicus posits a situation in which a prosecutor, who initially was willing to offer a plea bargain with minimal jail time, might increase the offered prison sentence after learning that "a defendant would accept a guilty plea that would release the defendant from confinement before his daughter's high school graduation," which was at a date after the release date of the lesser term initially contemplated (Brief at 10). Such uses, amicus claims, would interfere with his right to counsel. Amicus also contends that District Attorneys' Offices have gained access to these recordings by "abus[ing]" their relationship with DOC and asks this Court to "curtail" that behavior (id. at 2). Amicus claims that the concerns it raises here have been recognized by at least one federal court and asks this Court to follow that court's lead and set aside defendant's judgment (id. at 10). Amicus then insists that this Court need only look to the analytical framework laid out by the United States Supreme Court in connection with jailhouse informants in order to arrive at this relief (id. at 13). As a review of the cases and framework on which amicus relies make clear, the legal analysis put forward in its brief is simply incorrect. At the outset, throughout its brief, amicus describes the prosecutor's access to prisoners' unprivileged tape-recorded conversations by resorting to loaded terminology such as "underhanded" and "insidious" (Brief at 2, 7). However, as should be readily apparent, there is nothing secret or underhanded about the -3- prosecutors' review of unprivileged prison telephone calls. The program is so well- established that the Legal Aid Society, which has also filed a brief as amicus curiae in this matter, commented on the fact that the Society has represented a number of defendants "whose recorded telephone calls to relatives and friends were reviewed by District Attorneys and introduced at their trials since the inception of inmate telephone recording in 2008" (see Brief by Legal Aid Society at 2). Even a cursory search of legal databases such as LEXIS will reveal a myriad of cases from federal and state jurisdictions in which prison telephone calls were recorded, the recordings were provided to prosecutors, and those calls were introduced at the defendants' trials. Indeed, this type of evidence collection has been so well documented that it blinks reality to assume that defendants are not informed by their attorneys, at arraignments, that their unprivileged conversations will be recorded by DOC and provided to the prosecutor upon request. Amicus chooses to ignore this reality and instead focuses on hypothetical uses of these conversations by prosecutors to gain advantages or to strong-arm defendants into accepting certain plea deals. Amicus provides nothing to demonstrate that prosecutors have in fact behaved as suggested. There are no affidavits included with the brief from lawyers or defendants who have been subjected to the treatment that amicus describes. Nor does amicus even remotely suggest that any of its examples apply to the defendant at bar. -4- Rather, it is amicus's position that because these examples could happen, defendants need the protection of a firm rule flatly prohibiting the sharing of prisoners' unprivileged telephone calls with prosecutors' offices. Amicus looks for support for its position to United States v. Mitan, 2009 U.S. Dist. LEXIS 88886 (E.D.Pa. 2009), which, it contends, demonstrates that at least one court has recognized the issues surrounding the sharing of telephone calls and has been critical of the "process through which the government gains access to defense's legal strategy" (Brief at 10). In fact, however, Mitan does not further amicus's cause. In Mitan, the defendant, who was indicted with several others, was proceeding pro se, although he was assigned stand-by counsel. He was notified, by the Federal Detention Center (FDC), that his non-legal calls were subject to monitoring and recording and that he was required to contact FDC to request an unmonitored attorney call. United States v. Mitan, 499 Fed. Appx. 187, 189 (3rd Cir. 2012).1 While his case was pending, the government commenced an investigation into him and his mother for obstructing justice by intimidating witnesses and, as part of that investigation, subpoenaed his unprivileged telephone calls from FDC. The government did not notify the defendant of this investigation or that they had 1 The defendant appealed his conviction to the Third Circuit, which, in ruling on his claim that he was entitled to a dismissal of his indictment as a result of the prosecutors' monitoring of his telephone calls, provided a detailed rendition of the proceedings before the district judge. See United States v. Mitan, 499 Fed. Appx. at 187. Because the facts as laid out in the Third Circuit's opinion are more comprehensive than those in the district court's decision, we have cited primarily to the Third Circuit's opinion. -5- obtained those calls. While reviewing the tape-recordings, the government heard a call between the defendant and his brother in which they were discussing a legal citation. Aware that the defendant was acting pro se, the government ceased listening to that call and then arranged for a taint team to screen the defendant's calls. Id. at 189-90. While that investigation was continuing, the defendant filed a motion for a protective order requesting that the prison be precluded from disclosing to the Department of Justice, the FBI and the United States Attorney's Office any of his "legal defense work product," including his telephone calls with legal counsel and potential witnesses.2 The district judge ordered the government to devise protocols to protect the defendant's privileged conversations, which they did. After reviewing them, the district court "granted the defendant's motion according to the protocols." Id. at 190. The defendant and the government, however, differed in their understanding of how the protocols were to work. The defendant believed that he could make calls in which he discussed his legal defense over the unprivileged line and that FDC would not disclose them to the prosecutor. The government, on the other hand, concluded 2 It is ironic that amicus has cited to this case as the facts here undercut a claim made by defendant in his main brief and echoed by amicus, that a defendant who is notified that his calls are being intercepted for prison purposes does not realize that those calls may be shared with the District Attorney's Office (Brief at 3). Here, the defendant was certainly well aware of that fact, as he made a pre-trial motion to prevent this sharing. -6- that the defendant was aware that he had to make arrangements to speak on an attorney line and that, therefore, there was no need for a taint team to continue reviewing calls made on the non-legal line. They continued to receive and listen to the defendant's calls, most of which were between the defendant and his mother or brother. Id. The defendant then moved for a protective order in connection with his conversations with experts and witnesses. The court denied that motion as unnecessary as prison regulations already precluded the sharing of this information. Id. at 191. When the defendant subsequently learned that the government had been monitoring his communications, he moved to dismiss the indictment on the ground that "the government violated his Sixth Amendment rights by monitoring his phone calls with his mother and brother, which he claimed were legally protected communications." Id. at 191. The district court rejected this argument. While expressing displeasure with the prosecutors for their post-protocol monitoring of the defendant's telephone calls made on the non-legal line, the court ruled that these conversations were not covered by attorney-client privilege. 2009 U.S. Dist. LEXIS 88886 at *10. The court recognized the possibility that the government could have obtained information about the defendant's defense strategy or overheard conversations with witnesses. Thus, the court stated, if the defendant called his mother or brother at trial, the court would conduct a voir dire "to determine whether his defenses have been compromised in a manner not yet ascertainable from the -7- current record." However, the court would not dismiss the indictment, prior to trial. Id. at *13. The district judge subsequently reviewed several calls that the defendant claimed were illustrative of the prejudice to his defense and found that they did not contain any discussions that would have revealed the defense strategy and that the defendant therefore had not been prejudiced by the government's conduct. 499 Fed. Appx. 187 at 191. Before the Third Circuit, the defendant complained that the lower court erred when it required him to show prejudice in order to obtain a dismissal of the indictment. He claimed that it was impossible to know how the government might have changed its trial strategy, either consciously or unconsciously, after reviewing the hundreds of telephone calls that the defendant had made. Id. at 191-92. The defendant cited United States v. Levy, 577 F.2d 200 (3d Cir. 1978), and argued that he was entitled to a presumption of prejudice. The Third Circuit rejected his argument. The Court noted that Levy involved a situation of joint representation where one of the defendants was, unknown to his co- defendant or the lawyer representing both of them, a government informant. The Third Circuit ruled that this constituted a "knowing invasion of the attorney-client relationship" in which confidential information had been disclosed to the government and that, as a result, there were "overwhelming considerations militating against a standard which tests the sixth amendment violation by weighing how prejudicial to the defense the disclosure is." 499 Fed. Appx. at 192, quoting Levy, 577 F.2d. at 208. -8- Thus, in Levy, the Third Circuit held that where there was intentional government conduct which violated attorney-client privilege and resulted in the release of confidential information, the defendant was not required to show prejudice. 499 Fed. Appx. at 192.3 In Mitan, the government had not intentionally invaded any attorney- client relationship and had taken steps to ensure that it did not "invade the defense camp." Id. Thus, the defendant could not rely on the presumption but had to demonstrate actual prejudice. As is readily apparent, the rulings in Mitan hardly further amicus's request that this Court devise a holding that protects against potential, as opposed to actual, prejudice. Although the district judge in Mitan did criticize the government's conduct in monitoring the pro se defendant's calls, both he and the Third Circuit recognized that the defendant was not entitled to any relief unless he proved actual harm. And while the district court was willing to consider the effect on the defense of the prosecutor's review of unprivileged conversations, the Court of Appeals made clear that the defendant had to show that his privileged conversations had been invaded. In other words, that court was not concerned with the possibility that the government's access to unprivileged communications might enable a prosecutor to glean information about which it had not been aware. Rather, the appellate court required 3 The Third Circuit also noted that, given subsequent United States Supreme Court law, it was unclear whether the test in Levy remained viable. 499 Fed. Appx. at 192. -9- that the defendant show that the prejudice he suffered was the result of a review by the government of privileged communications, something that did not occur in the case at bar. Amicus's reliance on Mitan to support a total ban on prosecutorial access to prisoners' unprivileged telephone calls is therefore clearly misplaced. Amicus is on no firmer footing in its assertion that application of well-settled United States Supreme Court law on the Sixth Amendment should lead this Court to hold that DOC's provision of unprivileged telephone calls to a prosecutor upon request violates a defendant's right to counsel. To be sure, the Supreme Court has ruled that once the right to counsel has attached, neither the prosecutor, the police, nor their agents may interrogate the defendant about the charged crime outside of the presence of counsel. See Maine v. Moulton, 474 U.S. 159, 171-73 (1985). Thus, a defendant's right to counsel is violated when an informant or agent, operating at the direction of the government, obtains inculpatory statements by acting in a way designed to elicit those statements. United States v. Henry, 447 U.S. 264, 270 (1980). In People v. Cardona, 41 N.Y.2d 333 (1977), this Court stated that where the government "affirmatively plays on [the informant's motivation to inform] or harkens the informer to his self-interest, it thereby runs the risk of being responsible and accountable for the informer's actions." Id. at 335. Amicus notes that when DOC provides the requested telephone calls to a prosecutor, it asks the prosecutor to alert DOC if review of the calls uncovers information that may be of interest to DOC. Amicus contends that "the prosecutor's promise" to fulfill this request motivates DOC to give -10- the prosecutor "unfettered access" to the telephone calls and that this motivation creates an agency relationship (Brief at 16). These conclusions are simply not borne out by the facts. It is certainly correct that when DOC provides requested telephone calls to a prosecutor, DOC Operations Order 01/09 mandates that the disk containing those calls be accompanied by a form that "advises the Law Enforcement Agency/District Attorney's Office to notify the Department if their monitoring of the recorded inmate telephone call reveals any information that may be of interest to this Department" (Respondent's Appendix at 390). But, the assertion that DOC's provision to the prosecutor of the tapes is conditioned primarily on a prosecutorial "promise" to fulfill this request is one made from whole cloth. While it is a fair inference that a prosecutor's office, as a law enforcement agency, will report to DOC prisoner conversations that reveal threats to prison security, amicus offers this Court no evidence that any prosecutor's office has suggested to DOC that, if it would provide these telephone calls, the prosecutor would return the favor by conducting monitoring for DOC. And, amicus certainly does not establish that DOC's motivation to tape-record prisoners' telephone conversations was to receive such an eventual "quid pro quo," as amicus describes it (Brief at 15). DOC's primary motivation for recording these conversations is for its own internal purposes, namely prison security, and prosecutors review recordings of only those prisoners who are of interest to their own investigations. Thus, it would -11- hardly be efficacious for DOC to have created an entire system of prison taping with the idea of relying on prosecutorial review for its own security.4 In any case, amicus's strained interpretation of the term "deliberately elicited" (see United States v. Henry, 447 U.S. at 270) must be rejected. As amicus recognizes, even those statements obtained by an agent may be disclosed to a prosecutor and introduced at trial so long as the agent took no steps to encourage the defendant to make them (Brief at 15). Neither the prosecutor nor DOC acts to encourage prisoners to make incriminatory statements or to divulge information that the prosecutor can then use to advantage. In fact, DOC takes steps to discourage the creation of such statements by explicitly informing prisoners that their calls will be recorded. Amicus, however, takes this obvious proposition and turns it on its head. First, amicus asserts that the mere fact that inmates are given access to a telephone at all induces them to make incriminating statements, as DOC provides isolated and worried prisoners with a vehicle by which to discuss "their cases with the people who are close to them" (Brief at 18). While there is no doubt that pre-trial incarceration can be lonely and stressful, amicus's reasoning that the privilege of telephone use 4 Amicus asserts an agency relationship exists without actually describing which office would be the agent of the other. This is clever obfuscation since the arrangement amicus describes by which the prosecutor provides certain intelligence to the prison authorities is one in which the prosecutor is actually the agent of DOC and not the other way around. -12- constitutes a deliberate attempt by the government to collect evidence is absurd, especially in light of the warnings given to the inmates that their calls will be recorded. Amicus attempts to dismiss the import of these warnings by contending that "[t]he fact that DOC gives inmates notice that calls may be recorded, but fails to mention that the prosecution working against the inmate will have access to the recordings, further demonstrates that the government has created an environment to deliberately and improperly elicit information from inmates" (Brief at 19). In that regard, amicus makes the outlandish claim that this supposed omission in the notice given to inmates can only be explained as a "deliberate ploy" by prosecutors to "exploit the psychological burden of incarceration" in order to "take advantage of irrational and spontaneous statements that the inmates are susceptible to making while in confinement" (Brief at 20). It is hard to take seriously the suggestion that amicus would consider an allegedly heinous violation of the right to counsel to be obviated by a mere amendment of the notice. In any event, as with every other accusation levelled in its brief, amicus offers nothing by way of proof and instead ignores the reality that the nature and scope of the warnings that inmates are given are determined solely by the prison system, not any district attorney's office. Given the emphasis that amicus places on the scope of the warnings as it pertains to a defendant's Sixth Amendment rights, it is no wonder that amicus refuses to considering the possibility that, as in Mitan, inmates actually are already aware that their phone calls may be shared with prosecutors, even in the absence of more -13- specific warnings from DOC. But this is merely willful blindness. After all, defendant's Sixth Amendment claim presupposes that his right to counsel has attached. As discussed supra, given that the prison recording system has been in place for a number of years and prosecutors in jurisdictions both in New York and nationwide have used evidence derived from those telephone calls at various defendants' trials also for years, inmates are undoubtedly advised by their own single minded counsel of the fact that DOC may provide their tape-recorded, unprivileged telephone conversations to the prosecutor. In sum, as amicus's legal analysis is misguided and its attacks on the behavior of prosecutors are unsupported, its requested ruling barring any disclosure of tape- recorded, unprivileged prisoner telephone calls to District Attorneys' Offices should be rejected. -14- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: SUSAN AXELROD Assistant District Attorney PATRICK J. HYNES SUSAN AXELROD Assistant District Attorneys Of Counsel January 26, 2016 -15-