U.S. v. Johnson
| Decision Date | 09 February 2001 |
| Docket Number | No. CR 00-3034-MWB.,CR 00-3034-MWB. |
| Citation | 131 F.Supp.2d 1088 |
| Parties | UNITED STATES of America, Petitioner, v. Angela JOHNSON, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Patrick J. Reinert, Assist. U.S. Atty., Cedar Rapids, IA, for plaintiff.
Robert R. Rigg, Drake University Legal Clinic, Des Moines, IA, for defendant.
TABLE OF CONTENTS
I. INTRODUCTION ................................................................ 1091
A. Factual Background ....................................................... 1091
B. Procedural Background .................................................... 1091
II. LEGAL ANALYSIS .............................................................. 1093
A. Willett's Continued Representation Of Johnson ............................ 1093
1. The concerns and the inquiry .......................................... 1093
2. Is a conflict of interest likely to arise? ............................ 1095
a. Were any confidences imparted to defense counsel by the
witness? ........................................................ 1096
b. Did the witness waive any privilege by debriefing? ................. 1096
c. Is any potential conflict of interest sufficiently "serious"? ...... 1099
3. Remedying any potential conflict ...................................... 1100
a. Has Johnson made an "acceptable waiver" of any conflict? ........... 1101
b. Is a further remedy required? ...................................... 1101
B. Reinert's Continued Representation Of The United States .................. 1103
1. Applicable principles ................................................. 1104
2. The circumstances of the prosecutor's testimony ....................... 1106
3. Application of the principles in the circumstances presented .......... 1107
III. CONCLUSION .................................................................. 1108
Concerned that unusual circumstances in this criminal prosecution may disqualify two of three defense counsel and the lead prosecutor, the parties have wisely brought their concerns about continued representation before the court in a joint motion well in advance of trial. The parties are commended for their conscientiousness not least because the court finds that the parties' motion raises issues that potentially affect the fairness of the trial of a death penalty eligible criminal defendant charged with very serious offenses, including five counts of aiding and abetting the murder of a witness in violation of 18 U.S.C. § 1512.1
The charges against defendant Angela Johnson are premised, in part, on the government's contention that a jailhouse informant, Robert McNeese, convinced Johnson to confide certain inculpatory information to him while both were incarcerated in the Benton County Jail. Prior to this incident, while McNeese was in the Linn County Jail on unrelated charges, McNeese's investigator, Geoffrey Garrett, sought out attorney Alfred Willett to see if he would represent McNeese. The parties agree that Willett spoke with McNeese at the Linn County Jail for about one hour, but ultimately did not undertake to represent McNeese. McNeese subsequently debriefed fully about his criminal conduct pursuant to a plea agreement with the government. The parties also agree that if McNeese revealed any confidential matters to Willett during the interview, then those matters are, or at least were, protected by attorney-client privilege. At an in camera hearing before the court, however, Willett and McNeese disagreed about whether any confidences were imparted during Willett's conference with McNeese: McNeese contends that he revealed privileged or confidential information to Willett, while Willett testified that he has no recollection that he received any privileged or confidential information from McNeese.
Willett now represents defendant Angela Johnson in this matter, giving rise to concerns about a possible conflict of interest from Willett's "successive representation" of McNeese, a prime witness against Johnson, and Johnson herself, to the potential detriment of Johnson's representation. Furthermore, another member of Johnson's defense team, attorney Thomas Frerichs, initially represented Geoffrey Garrett, McNeese's investigator, on criminal charges against him arising from his alleged burglary of attorney Willett's office in which information pertinent to the criminal prosecution of McNeese was allegedly removed and copied. Finally, it is anticipated that the lead prosecutor in this action, Assistant United States Attorney (AUSA) Patrick Reinert, will be called as a witness in a hearing scheduled for March 15, 2001, on the government's motion regarding the admissibility of McNeese's testimony, in which the government asserts that McNeese's testimony is not the result of a "Massiah violation."2 Johnson has resisted the government's motion, thus suggesting that McNeese was planted by federal authorities in the Benton County Jail to elicit incriminating statements from her without Sixth Amendment protection in violation of Massiah. Therefore, the present action presents in real life a factual scenario that might seem too wildly improbable to be presented as a hypothetical situation in an examination question for law students.
The parties brought their concerns about attorney representation in this matter to the court's attention in a joint motion filed on January 10, 2001. Neither party, however, expressly moved to disqualify counsel for the other. In support of the motion, from its perspective, the government filed on January 10, 2001, a Filing Regarding Ex Parte Hearing. The government subsequently filed, on January 26, 2001, a Memorandum In Support Of Joint Motion For Hearing On Potential Conflicts Of Interest, and on January 30, 2001, proposed questions to be directed to Robert McNeese in an ex parte hearing on representation issues and a Supplemental Memorandum In Support Of Joint Motion On Hearing On Potential Conflicts Of Interest. Defendant Johnson also filed a Memorandum In Regard To Issues Of Attorney Representation on January 26, 2001. That Memorandum was filed by Robert R. Rigg of the Drake University Legal Clinic, who represented Johnson, both on the brief and at the hearing on the joint motion, for the limited purpose of the court's consideration of Johnson's continued representation by attorneys Willett and Frerichs and continued prosecution of this action by AUSA Reinert.3
On January 31, 2001, the court held a hearing on the parties' joint motion. By agreement of the parties, the hearing was conducted on the record in open court, with two exceptions. First, the court heard testimony by Robert McNeese, the government's informant, in camera and ex parte, but on the record, with only Mr. McNeese and his counsel, Mark Meyer, a court reporter, and the undersigned present. Second, the court heard testimony from Alfred Willett, one of defendant Johnson's attorneys, in camera and ex parte, but on the record, with only Mr. Willett, a court reporter, and the undersigned present.
In the course of the hearing on attorney representation issues, attorney Thomas Frerichs agreed to withdraw from further representation of Angela Johnson, thus eliminating one thorny issue from the court's consideration, the "successive representation" issue arising from attorney Frerich's initial representation of McNeese's investigator and subsequent representation of defendant Johnson, the person against whom McNeese is likely to testify. However, "successive representation" issues concerning defense counsel Willett and "attorney-as-witness" issues concerning AUSA Reinert remain to be resolved.
Johnson contends that attorney Willett suffers from no disqualifying conflict of interest, because McNeese waived any privilege he might have had concerning his alleged confidential communications with Willett by providing a thorough factual debriefing pursuant to his plea agreement with the government. Moreover, Johnson contends that she has made a knowing and voluntary waiver of any conflict of interest that attorney Willett may have, and that she wishes to have him continue to represent her. However, the government contends that "successive representation" issues continue to taint Willett's representation of Johnson, because, during his debriefing, McNeese disclosed only underlying facts concerning his criminal conduct, which does not waive any attorney-client privilege as to McNeese's communications with Willett.
As to AUSA Reinert, Johnson contends that Reinert's continued representation of the United States in this case, should he be called as a witness in the course of the hearing on the admissibility of McNeese's testimony, would allow Reinert to play conflicting roles frowned upon under rules of ethical conduct. Specifically, she contends that Reinert should not be allowed to bolster the government's position regarding the legitimacy of McNeese's evidence, by testifying at the hearing on the admissibility of McNeese's testimony, and then be allowed to continue prosecuting this action as an advocate for the government. The government contends, however, that there is no hard-and-fast rule that requires AUSA Reinert's disqualification in this case, and that his appearance as a witness in a preliminary matter before the court, not in the trial before a jury, does not necessarily require his disqualification in this case.
With these facts and arguments in mind, the court turns to resolution of the complicated issues regarding continued participation of defense counsel Willett and AUSA Reinert in the criminal proceedings against Angela Johnson.
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