Attorney/Client Privilege Waiver Ineffective Assistance Claim
Commonwealth v. King, PICS Case No. 17-0713 (Pa. Super July 12, 2017) Fitzgerald, J. (17 pages).
The Post Conviction Relief Act court appropriately granted defendant a preclusion order since the private interview prosecutors sought with defendant's trial counsel could easily have become a freewheeling inquiry into privileged matters falling outside the scope of defendant's claim of ineffective assistance of counsel. The court affirmed an order of preclusion.
Defendant Jerome King was charged with murdering Nathaniel Giles in retaliation for providing incriminating information about defendant to law enforcement officials. During trial, the Commonwealth introduced evidence that in 2004, Giles admitted that he purchased a handgun for defendant because defendant could not pass the requisite background check. A member of defendant's gang shot and killed a child with the same gun. A jury found defendant guilty of first degree murder and, inter alia, criminal conspiracy. Defendant then sought relief under the Post Conviction Relief Act (PCRA). PCRA counsel filed an amended petition alleging that trial counsel was ineffective for failing to object to the admission of a prior bad act and request a cautionary instruction. In anticipation of an evidentiary hearing on the ineffective assistance claim, PCRA counsel wrote trial counsel seeking a strategic reason for the decision not to request a cautionary jury instruction concerning "other act" evidence introduced at trial. Trial counsel did not respond. Ultimately, defendant filed a motion requesting that the District Attorney be precluded from interviewing trial counsel ex parte. He argued that a preclusion order was necessary to prevent trial counsel from disclosing privileged or confidential information that defendant shared with trial counsel during his representation. The PCRA court granted defendant's motion. On appeal, the appellate court rejected the Commonwealth's argument that defendant waived all privileges by accusing trial counsel of ineffectiveness. The PCRA provides that a claim of ineffectiveness constitutes a waiver of privileges relevant to that claim, but not as to any other issues, the court emphasized, citing 42 Pa. C. S. 9545(d)(3). Moreover, Pennsylvania precedent, including Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011) and Commonwealth v. Flor, 136 A.3d 150 (Pa. 2016), demand that the PCRA court vigilantly guard against disclosure of "privileged materials" in out-of-court interviews with individuals who performed work for the defense or in discovery proceedings outside the courtroom. A defendant only waives applicable privileges in PCRA cases to the extent that they related to his specific claims of ineffectiveness. When, as in Harris, the Commonwealth seeks a private interview with a professional who formerly worked for the defense, "it does not seem possible to eliminate or even minimize the possibility" of disclosure of still-privileged materials, the court reasoned. A private interview between prosecutors and trial counsel could easily become a freewheeling inquiry into privileged matters falling outside the scope of the ineffectiveness claim. As such, the PCRA court correctly found that a preclusion order was necessary, the court determined.