Chambers of Judge Hugo Bright
Supreme Court, 100 Centre Street
8.30 am Monday 27 October 2003
Judge Hugo Bright leaned back in his chair. "Let me get this straight," he said. "You want me to issue a warrant authorizing the police to eavesdrop on a conversation between a prisoner and an attorney? Don't take this the wrong way, Mr McCoy, but have you completely lost your mind?"
"On the contrary, your honor," McCoy said. "A prisoner and an attorney, yes, but not a prisoner and his attorney. Ms Sheets did represent Mr Bruner, but she withdrew and was replaced by Mr Timothy Schwimmer."
"That's the Timothy Schwimmer doing time in Attica because you couldn't persuade him to break attorney-client privilege?" Judge Bright asked, and when McCoy nodded, "I'm getting a whiff of something I don't much like the smell of, counselor."
"Your honor —"
Judge Bright turned to Jessica. "Mr Bruner told you what he told Mr Schwimmer, didn't he?"
"Your honor, for obvious reasons, I can't disclose whether or not that's true."
Bright ignored her. "And now you intend to go talk to him, and when he tells you again what he told you before, Mr McCoy will claim it's no longer a privileged communication." He shook his head. "I'm sorry, counselors. It's not that I'm not sympathetic to your dilemma, Ms Sheets, but you can't withdraw from representing a client and then use privileged communications to inform an attempt to interrogate that same client as an agent of the D.A's Office."
"I don't believe that the target of this investigation had anything to do with the request to be relieved as counsel filed by Ms Sheets," McCoy said.
Bright raised an eyebrow at Jessica, who said, "Again, for obvious reasons, I can't be specific."
"I can," McCoy said. He took a sheet of paper from his bag and offered it to the judge. "An affidavit from A.D.A. Serena Southerlyn who assisted me on the case, your honor, detailing remarks made to her by Mark Bruner. I invite you to draw the obvious conclusion as to the reason Ms Sheets felt unable to represent Mr Bruner with the zealousness required by the canons. I was present during the interviews and can attest to the accuracy of Ms Southerlyn's statement."
Judge Bright took the affidavit and read it. "Even drawing what you call the obvious conclusion," he said, "that still doesn't resolve the problem that the other obvious conclusion here is that your aim is to get Mr Bruner to repeat, on tape, statements he originally made under privilege."
McCoy leaned forward. "I will stipulate that we will only use new information —"
"You'll unring the bell?" the judge asked. "Nice try, Mr McCoy. You mean you'll bootstrap privileged information into an inevitable discovery argument. If not, why the warrant? Ms Sheets could simply visit Mr Bruner and report any new statements he made to you."
"Your honor, with respect," McCoy said, "you haven't dealt with Mark Bruner. I have. The warrant is to enable not just recording, but communication with Ms Sheets during the interview, including by an expert consultant psychiatrist. If it will assist your honor, I will agree to limit the auditors of the interview to those absolutely necessary and to agree that Ms Sheets will review the transcript and redact all privileged material before it's made available to others."
"Except she's the only one who can know if all the privileged material is included in that redaction."
"I promise —" Jessica started.
McCoy spoke straight over her, coldly furious. "Your honor, I am professionally and personally outraged at the imputation against my colleague. If the unblemished career of Ms Sheets is not enough to prove to your honor that she has the highest ethical standards, basic logic should tell you that if she were inclined to breach privilege in any way, this entire rigmarole would be unnecessary. A simple anonymous letter would suffice. She would be far from the first defense attorney to resolve a conflict between personal and professional ethics in such a way and her insistence on an above-board —"
"Alright, alright!" Judge Bright said, holding up a hand. "I take your point. Ms Sheets, like Caesar's wife, is above reproach." He paused. "I'll review the list of individuals who will audit the interview live. Ms Sheets will make it explicitly clear to Mr Bruner that she is not his lawyer and nothing he says to her is privileged. And I will review the redacted transcript before it's made available to the police and the District Attorney's Office."
"Agreed," McCoy said. "On the condition that I —"
"Mr McCoy, I make the conditions here," Judge Bright said. "That's why they gave me this nice black robe."
"—can impose additional security restrictions on Mr Bruner for the purpose of the interview if I don't consider those of the Department of Corrections to be adequate."
The judge leaned back in his chair, frowning. "You think that Ms Sheets could be in danger?"
"I don't think that Mr Bruner has anything to lose, your honor," McCoy said.