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NEW YORK � A federal appeals panel has clarified the law on attorney-client communications during the defendant’s ongoing testimony at trial. Addressing a case of first impression in the Second Circuit U.S. Court of Appeals related to witness coaching, the panel held that a “restriction on communication during a long recess can violate the Sixth Amendment even if the restriction bars discussion only of the defendant’s testimony.” In United States v. Andrews, 05-2630-cr, Judge Guido Calabresi wrote for the circuit that a “defendant’s constitutional right to consult with his attorney on a variety of trial-related issues during a long break, such as an overnight recess, is inextricably intertwined with the ability to discuss his ongoing testimony. Thus, a ban on discussing testimony during a substantial recess does materially impede communication of a ‘constitutional quality.’” The decision will be published Monday. Judges Barrington Parker and Rosemary Pooler joined the opinion. But the decision did not help Ben F. Andrews, who was convicted in 2005 of bribery, fraud and other charges in connection with a scandal involving the illegal investment of state pension funds by former Connecticut Treasurer Paul Silvester. At the close of Andrews’ first day of cross-examination, defense attorney Jeremiah Donovan told the district court that he wanted to talk to his client about his testimony. The government objected and Judge Ellen Bree Burns of the U.S. District Court for the District of Connecticut told Donovan he could not speak to his client about his testimony. Prosecutors, concerned that the order might be too restrictive to withstand scrutiny on appeal, quickly did an about-face and asked that it be rescinded. The ban ended up lasting from 5 p.m. to 8 p.m., but for one reason and then another, Donovan was unable to speak to his client until the next day. Although the court recessed the next morning to give the attorney and his client a chance to talk, Donovan said the opportunity was inadequate because by then he had a “hazy” memory of Andrews’ exact testimony. Donovan also said he had not taken notes the previous day because he believed he would be speaking with Andrews the moment his client left the witness stand.
‘Circuit precedent requires that we focus not on the length of time of the prohibition, but rather on the constitutional quality of the communications affected.’

JUDGE GUIDO CALABRESI Second Circuit


Donovan moved for a mistrial, which Judge Burns denied. She also ruled that during shorter breaks in the trial, including lunch breaks, the attorney and his client could meet, but could not discuss Andrews’ testimony. They could only discuss “other matters related to trial,” she said. The appeals panel’s ruling hinged on the interpretation of two U.S. Supreme Court cases, Geders v. United States, 425 U.S. 80 (1976), where the court found a Sixth Amendment violation when a testifying defendant was barred from talking to his lawyer during an overnight recess, and Perry v. Leeke, 488 U.S. 272 (1989), which said a trial judge may bar all communications between a defendant and his lawyer during a 15-minute break. Judge Calabresi said the Geders court emphasized the importance of attorney-client meetings during longer breaks, such as overnight recesses, because those are the times when strategies are formed, tactics are chosen and new information is elicited from the defendant about other matters that came up during the day. The Supreme Court also said that other methods are available for trial courts to prevent the coaching of a witness by his attorney. The government had argued that the initial ban ordered by Judge Burns was constitutional because it only lasted three hours, but the circuit disagreed. “Circuit precedent requires that we focus not on the length of time of the prohibition, but rather on the constitutional quality of the communications affected,” Judge Calabresi said. So the circuit read Perry as allowing a ban not because the break was only 15 minutes, but “because, given the context � a very short midday recess in the middle of the defendant’s cross-examination � ‘it [was] appropriate to presume that nothing but the testimony would be discussed,’” Judge Calabresi said. “In contrast, it seems equally appropriate to presume that the discussions between a client and an (attorney) that are likely to occur in the three hours immediately after the close of the day’s trial are precisely those constitutionally-protected conversations that Geders states usually take place during overnight recesses.” Applying the law to the “unusual circumstances” of the Andrews case, Judge Calabresi said, “[W]e believe that the court’s restriction was trivial and did not meaningfully interfere with the defendant’s Sixth Amendment rights to effective assistance of counsel.” He added later, “Given what transpired after the court issued the order, we are not persuaded that it was the restrictions placed on the communication by the court, rather than the decisions made by defense counsel, that precluded Andrews from being able to consult freely with his counsel that evening.” Moreover, the restriction imposed by the district court only blocked discussion of trial testimony and Andrews was given plenty of time the next morning to discuss other “trial-related” matters with his lawyer, Judge Calabresi said. Adding that the government “acted in full good faith,” by researching immediately whether the ban it had requested might violate the Sixth Amendment. Assistant U.S. Attorneys William Nardini and David Ring represented the government. Mark Hamblett is a reporter with the New York Law Journal, a Recorder affiliate.

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