Federal Criminal Conviction Reversed When Trial Judge Prohibited Defendant From Talking with His Attorney During Two Overnight Recesses

Yesterday the Court of Appeals here in Atlanta reversed a federal criminal conviction in a mortgage fraud case.  The Defendant was in the middle of testifying in his own defense.  During two overnight recesses, the trial judge told the Defendant he could not speak with “anyone” about his testimony, and could only talk with his lawyer about his “constitutional rights.”  The Court of Appeals, relying on a series of earlier decisions, decided that this prohibition against speaking with the Defendant’s own attorney amounted to a violation of the Sixth Amendment’s promise that a person may consult with counsel during a criminal case. The case is United States v. Cavallo, and can be found here.

A  man named Streinz was one of the Defendants in a large mortgage fraud prosecution in the Middle District of Florida.  Streinz and his lawyer informed the trial judge that Streinz would be testifying on his own behalf.  Just before he testified, the attorney turned over some late materials that Streinz said he had just found in his home office, materials that impacted his testimony.  The trial judge apparently smelled a bit of a rat, and directed that the prosecutor and federal agents go to the home office with Streinz and his attorney in order to sort out the documents.  Streinz became outraged during this process, claiming that the agents were seizing excessive materials.

The next day Streinz began his testimony.  As the trial recessed at the end of the day, the court instructed Streinz that he could not discuss his testimony with “anyone,” but that he could talk to his lawyer about his “constitutional rights.” The court did not, however, explain what that phrase might mean.

Before he resumed his testimony, Streinz sent a letter directly to the court expressing distress at his situation. The court acknowledged Streinz’s letter, but merely let him go over some of the documents that had been taken from his home office.  Streinz continued his testimony all that day.  At the end of that day, the trial judge again said that Streinz could talk to his lawyer about “constitutional rights” during the overnight recess, but could not talk to his lawyer “about the case.”  The next morning, Streinz sent a second letter to the court, again expressing his anxiety.

The Court of Appeals had little difficulty in ruling that this procedure grossly violated Strein’s Sixth Amendment right to counsel. While there is good reason to prevent witnesses from consulting with attorneys while the witness is up for cross-examination, a Defendant in a criminal case is in a far different situation. Referring to two rulings from the United States Supreme Court, yesterday’s ruling noted that while a non- party witness will likely have little to discuss with trial counsel other than his upcoming testimony, an accused and his attorney will often have many other matters to discuss during an overnight recess. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed.  The defense lawyer might need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events.

This was a highly unusual case.  We are glad to see that the Court of Appeals reversed the conviction, in order to protect the right to counsel for everybody, both the guilty and the innocent.

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