Government Responds: Recording Privileged Phone Calls Not a 6th Amendment Violation
by Shari Dovale
On November 8, 2017, Ryan Payne filed a motion for dismissal with prejudice in the Bunkerville Standoff case because the government was caught recording attorney-client phone calls. In general, the specific calls cited were for co-defendant Blaine Cooper.
These calls are considered privileged and protected by the 6th Amendment, which reads:
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
On December 4, 2017 the prosecutors responded to the motion and requested that the Court deny the motion, including calling it “meritless”.
Within their response, they refer to Payne’s motion (emphasis added):
Defendant asserts that the Superseding Indictment should be dismissed
because the government represented in response to its previous motion in October 2016 that it had no jail calls between defendants and their counsel from CCAPahrump, but now privileged calls have been produced relating to another defendant, the prosecutors did not know attorney calls were included, and therefore collectively, the government has acted with flagrant misconduct.
The government goes on to state, “Even if such a violation has been shown, that violation in and of itself does not rise to a constitutional violation.“
The prosecutors then go on to cite several cases to back up their claims. The bottom line, within all the legalese they have cited, is this:
Recording privileged phone calls is okay so long as they cannot be shown to substantially use it against the defendants.
They cite the examples of sending in undercover agents, or informants, to defense strategy meetings. If they cannot be shown to use it against the defendants, then it is still okay.
The prosecution then goes on to cite a case in which the recordings were deliberate, yet the court held that “…the Sixth Amendment is violated only when the government’s action ‘substantially prejudices the defendant.’”
The prosecution maintains that, in this case:
“the prosecution team has gone to great efforts to ensure respect for attorney-client privilege in this case.
To date, no one on the prosecution team has listened to Mr. Cooper’s privileged attorney-client calls or was aware of such calls.”
They expect everyone just to trust them? … because, like the cameras overlooking the Bundy Ranch home, of course no one watched them, took notes, or recorded the live feed.
‘Just because the prosecution says so’ does not rise to any respectable level in this case. They have been shown to be untrustworthy, deceitful and manipulative throughout months of proceedings. Their word cannot be trusted.
The prosecution has lost the public’s confidence. As they should have been held to a higher standard to begin with, yet were not, now they should be held accountable and be dealt the consequences of their actions. They do not even deserve the “benefit of the doubt”.
Trust must be earned, and AUSA Myhre and Company have not earned anything.
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It would be too easy to take umbrage with the negative connotations of being called a “Constitutionalist”…since it is that that keeps us from having to say, “Yes, My Lord” or “Yes, My Emminence” or “Si, El Commandante”.
That being said, it is the privatization of services that allows people to only seek and acquire the services they want. And if a Corporation is a bad corporation their reputation will proceed them.
It is not a cut and dry simple situation though, because people will blindly just obtain services/products whether the source is good or bad; reference how hard it is to enforce, whether privately or socially, “Non-Importation” and “Non-Comsuption” Acts.
Further, to show what a tempestuous sea Liberty is…by privatization in the extreme the reality is an environment of economic feudalism and a drive to cut-throat monopolization.
If you embrace Liberty you also have to steadfastly embrace “Caveat Emptor” and “Caveat Venditor”.
In farthest extreme, to demonstrate there is no universal Utopian answer, and there will always be a struggle for equilibrium…read Thomas Paine’s “Agrarian Justice”:
http://xroads.virginia.edu/~hyper/Paine/agrarian.html
Paine’s premise is overtly Communistic/Socialist…except for one fact…it is a statistical probability. The more private land and ruthless monopolization occurs…the less there is for the populace en masse to fit in except as a cog.
You can’t privatize the structure of land ownership…and once the government does that it to a degree it insinuates itself into “the haves” and the “have nots”.
There is no easy answer…but it deserves mature consideration…and not light and transient broadsides.
What all you constitutionalist seem to miss,. Is the fact that the privitized of previous government services puts those institution in the hands of corporations. Corporation do not have to follow the Constitution only government… Corporations spy on you at work and home, they can tell you no guns on their property,. They can silence your free speech. And many other things. This is what you ask for. Deregulation and less government
Cato, when addressing the Roman Senate, would always end with “And besides, Carthage must be destroyed”! The Carthaginian empire was Rome’s great rival for hegemony in the Mediterranean. My refrain today is that our perception of the Fed as arbiter and overlord must be destroyed, replaced by a firm assertion of State pride and State integrity. We have seen firsthand what can only be called a “Federal Culture” in action, cavalier, alien and inimical to everything we stand for as free Americans. We may use the same words, but we speak a different language. Fraud, misconstruction and abuse have become the Fed’s standard operating procedure, and it’s ever encroaching invasiveness threatens to consume us. It is all well and good to hear President Trump say ” We are restoring the rule of law. We are interpreting the Constitution as written and defending 2A” and to hear him say ” Speak up! Be heard! Fight! Fight! Fight!” but these are the words of a Federal official. This restoration of the rule of law has to start someplace, and by “Someplace” I mean an actual geographic location, ground were the Constitution as written is implemented. On paper, this break with Federal overlordship is well supported – 10A – but the infestation of Federal Supremacists in State office is the obstacle. We need Governors who see the end of Federal Hegemony as the overarching goal, and who say, like Cato ” And besides, ! Federal iniquity must be driven out “.
Good show, Neil. I could write a comment longer than the article on this topic…in fact had it all laid out in my mind. But will just forward one thought from Thomas Paine:
“But Britain is the parent country, say some. Then the more shame upon her conduct. Even brutes do not devour their young, nor savages make war upon their families. Wherefore, the assertion, if true, turns to her reproach; but it happens not to be true, or only partly so, and the phrase PARENT OR MOTHER COUNTRY hath been jesuitically adopted by the King and his parasites, with a low papistical design of gaining an unfair bias on the credulous weakness of our minds.” – Common Sense
Consider the German “Fatherland” and “Mother Russia” and “Uncle Sam”…these concepts prey upon the credulous weakness of our minds.
I once asked a girl whether she supported “La Constitution” or “El Constitution” and she replied, “La Constitution, of course.” And therein lies the crux of the matter…besides the fact it is clearly “El Constitution”…the clearer we are the less we will be left clinging to evanescent cliches.
Not at all Boyd…you’ve been a valuable contributor to Redoubt News, and it is far from me to gainsay. With a blue collar readership in mind, I have tried to write in a popular vein, and I couldn’t do any better than the near biblical “Sunlight is the best disinfectant”….”Help your neighbor, try to right wrongs” or that we should “Claim, use and defend” our rights. I do keep one particular reader in mind – Prosecutor Myhre – it’s a probable twelve to seven that he reads Redoubt News.
Ammon has said that sunlight is the best disinfectant. At great risk to themselves and to their loved ones,the Bundy family has carried this fight ever higher, from a showdown against armed mercenaries and till now, against mercenaries in three piece suits. Due to their fortitude and unshakable faith, this cause has inspired thousands, and has been elevated far beyond a dispute over cows and grazing. Now on trial in Las Vegas is, as Ms Dovale has noted above, the very confidence we have in these high courts, and the machinations of legal fiction, personified by a scheming, lying prosecutor,are now caught in a glaring spotlight. We do, at least, have to give prosecutor Myhre high marks for a brazen chutzpa. He claims that these gross violations of attorney client privilege did no damage. Is this not like a bank robber’s justification that yes,I robbed the bank, but I never spent the money ! This reign of witches must pass away.
At some point something like what I am going to comment has to be stated…so don’t take this as an attack, Neil…just for what it is worth and my taking an opportunity and license to make an observation.
“If sunlight is the best disinfectant then let us in the pursuit of truth move from the long Arctic summer to the long Antarctica summer and spend most of our lives in the sunlight (ignoring the cloudy days of course).”
That is a silly proposition of course…but not from the perspective of the United States of America having a base at Thule, Greenland and McMurdo Station, Antarctica. Words like “Empire” and “Pax Americana” come to mind.
So how does that relate to anything? Because at the apex of our society…the society we desire to behave Constitutionally…are people who are in and control the Military, NASA, National Reconnaissance Office, CIA and more…whose minds do not operate based on light and dark…and analogies based on those concepts are summarily dismissed, though suffered, as equatorial and provincial. Their minds are attracted to power…all power…everywhere and all time.
Analogies make life and conversation rich…but they come no where near addressing the power that is in play by the people at the apex of the USA’s government.
The U.S. Constitution was written to check and balance that power…and there are few if any analogies in it’s text.
Again, there is a time and a place to say things, so if ya’ll feel this was the wrong time to say this specifically…then, please just consider it generally. Because the less we are liable to be dismissed summarily as equatorial and provincial rubes, though of course we are equatorial and provincial, some of us that is, the more likely to be taken with a measure of seriousness.
It has been my experience that recording the Gov’t secretly pays vast dividends in the way of gathering evidence in support of straight out firing them. Small damage to Bundy could be huge dividend for US. I’ll take it 🙂
Marilyn, I think I misunderstand some of what you are saying. Are you advocating the secret recordings made by the government?