State v. Lenarz-Dissent, SC18561 Dissent

• Court: Supreme Court of Connecticut
• Writing for the Court: PALMER.
• Docket Number: SC18561 Dissent
• Parties: STATE v. LENARZ—DISSENT
• Decision Date: 19 July 2011

STATE
v.
LENARZ—DISSENT

SC18561 Dissent

Supreme Court of Connecticut

Dated: July 19, 2011

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ''officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ''officially released'' date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.

Page 2

PALMER, J., with whom ZARELLA, J., joins, dissenting. Until today, no federal or state court in this country ever has presumed a sixth amendment violation on the basis of a government's unintentional breach of the attorney-client relationship, and no federal or state court ever has dismissed criminal charges due to such a breach. Indeed, until today, this court never has ordered the dismissal of criminal charges as a remedial measure. In an opinion that represents a radical and wholly unjustifiable departure from settled sixth amendment principles, however, the majority does what no other court before it has done: it presumes a sixth amendment violation due to the state's inadvertent breach of the attorney-client relationship—despite the trial court's express and undisturbed findings that the breach was unintended and caused the defendant no harm—and it orders the dismissal of the criminal case of the defendant, Patrick J. Lenarz, solely because the assistant state's attorney (prosecutor), acting lawfully and in good faith, read a single e-mail, from the defendant to his wife, containing certain of his proposed trial strategy. The majority reaches this conclusion even though it was not determined until many months later that the e-mail in question was covered by the attorney-client privilege because, unbeknownst to the prosecutor and the court, the defendant also had forwarded the e-mail to his attorney. Moreover, there is nothing in the record to indicate that the prosecutor ever read the e-mail again, that he failed to notify the court and the defendant of the e-mail as soon as he received it, or that he or any other law enforcement officer used or otherwise benefited from the e-mail in any way. The record does reveal, however, that (1) the e-mail was placed under seal with the court immediately upon its disclosure, so that neither the prosecutor nor anyone else had access to it thereafter, (2) the defendant expressly rejected the remedy of having the prosecutor removed from the case and, in fact, sought no remedy at all until moving to dismiss the charges well over one year after being notified of the e-mail, and (3) the prosecutor's review of the e-mail caused the defendant no actual prejudice.

The majority's unprecedented decision is deeply flawed in a multitude of other fundamental respects, as well. In fact, there is not one aspect of the majority opinion that withstands scrutiny. Among the many, serious errors that the majority commits in reaching its extraordinary result are: (1) the majority resolves the case on the basis of a claim that the defendant never has raised and the state never has had the opportunity to address;¹ (2) it finds facts in violation of this court's strict prohibition against appellate fact finding and then relies on those facts—all of which directly contradict

Page 3

the trial court's factual findings—in asserting that the state is to blame for the breach of the attorney-client privilege; (3) it ignores the critical and universally recognized distinction between a knowing violation of the attorney-client relationship by the state and the state's unintentional, good faith breach of that relationship— the latter of which occurred in the present case—and then presumes prejudice and a sixth amendment violation solely on the basis of a patently incorrect application of United States v. Levy, 577 F.2d 200 (3d Cir. 1978), a case that has absolutely no bearing on the present case because Levy involved an egregious and intentional invasion of the attorney-client relationship; see id., 208 (holding that sixth amendment violated when ''confidential information is disclosed to the government'' due to ''a knowing invasion of the attorney-client relationship'' [emphasis added]); (4) it denies the state any opportunity to rebut this newly created presumption of prejudice; (5) it establishes a presumption that dismissal is the appropriate remedy notwithstanding unanimous contrary authority; and (6) it orders the dismissal of the case despite the defendant's failure to allege actual prejudice, and without affording the state any opportunity to demonstrate why dismissal is neither necessary nor appropriate.

Finally, the majority devises its unprecedented methodology without any input from the parties, and then proceeds to apply that methodology retroactively to the present case, also without any input from the parties. In doing so, the majority effectively has taken over the litigation of the case from the parties themselves, an approach that this court rightly has characterized as exceeding the proper limits of its authority; see, e.g., Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816, 822, 9 A.3d 322 (2010) (rejecting contention that reviewing court may decide case on any basis, regardless of nature of claims raised on appeal, because contention ''misconstrues the limits of the [reviewing] [c]ourt's authority''); because the result is not the product of a truly adversarial process. In fact, the fair and impartial application of settled sixth amendment principles requires that the defendant's claim be rejected in view of his failure to present any evidence that the prosecutor's review of the privileged documents was either wrongful or prejudicial. I therefore dissent.

I
ADDITIONAL FACTS

Before discussing my disagreement with the majority in greater detail, I first set forth certain undisputed facts and factual findings that, although overlooked by the majority, are particularly important because they place the issue presented by this appeal in proper context. The defendant's computer was seized pursuant to a duly authorized search warrant on November 17, 2004, but the state laboratory did not complete its report on

Page 4

the contents of the computer until July 21, 2005, and the record does not reveal either when the prosecutor received the report or when he read the five documents that are the subject of this appeal. The record does indicate, however, that the prosecutor provided defense counsel with those documents at a meeting between them on September 19, 2005. Thus, as the defendant's appellate counsel expressly acknowledged at oral argument before this court, as far as the record discloses, the prosecutor provided defense counsel with the documents immediately upon receiving and reviewing them.²

Furthermore, on that same date, the defense sought and obtained a court order requiring the prosecutor and the Simsbury and Granby police departments to turn over to the defense any ''protected material,'' that is, documents arguably subject to the attorney-client privilege. In addition, the prosecutor provided the court with the state's copies of those documents, which then were placed under seal. It therefore appears that, from that date on, the prosecutor had no access to any of those documents. Even though defense counsel received the documents on September 19, 2005, the defendant did not file his motion to dismiss until November 20, 2006, a full fourteen months thereafter. Finally, in his motion to dismiss, the defendant expressly rejected any remedy other than dismissal, including the remedy of having the case tried by another prosecutor from outside the judicial district of Hartford, with no prior involvement in or knowledge of the defendant's cases.

As the trial court expressly found, personnel at the Connecticut Forensic Science Laboratory (state laboratory) had made a good faith effort to comply with the order issued by Judge Scheinblum on November 18, 2004,³ barring them from reading or publishing any ''communications'' between the defendant and defense counsel, Kevin Ferry, or Ferry's investigator, Allen Cowling, that might be discovered in connection with the search and analysis of the defendant's computer. In support of this conclusion, the trial court explained that state laboratory personnel had neither read nor published any communications between the defendant and defense counsel or his investigator that were styled as e-mails or letters to or from the defendant and defense counsel or his investigator.

Although the majority...