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The 2d U.S. Circuit Court of Appeals has ruled that a restriction on communication between an attorney and a client during a long trial recess may violate the Sixth Amendment, even if the restriction only bars discussion of the defendant’s testimony. U.S. v. Andrews, No. 05-2630-cr. Addressing a case of first impression in the 2d Circuit related to witness coaching, the panel said a “ban on discussing testimony during a substantial recess does materially impede communication of a ‘constitutional quality.’ “ The decision doesn’t help Ben F. Andrews, who in 2005 was convicted in a Connecticut federal court of bribery and fraud. At the close of Andrews’ first day of cross-examination, defense attorney Jeremiah Donovan of Old Saybrook, Conn., told the court he wanted to talk to his client about his testimony. The government objected and U.S. District Judge Ellen Bree Burns 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that the order might be too restrictive to withstand scrutiny on appeal, quickly did an about-face and asked that it be rescinded.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 lasted from 5 p.m. to 8 p.m., but, for a number of reasons, 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 only had a “hazy” memory of Andrews’ exact testimony. He moved for a mistrial, which Burns denied. She also ruled that during shorter breaks in the trial, the attorney and his client could meet, but could not discuss his testimony. They could only discuss “other matters related to trial.” The 2d Circuit based its ruling on two U.S. Supreme Court opinions: Geders v. U.S., 425 U.S. 80 (1976), which held that barring a testifying defendant from talking to his lawyer during an overnight recess violated the Sixth Amendment; 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. Writing on behalf of the panel, Judge Guido Calabresi said that Geders emphasized the importance of attorney-client meetings during longer breaks, such as overnight recesses, because those are the times when strategies are formed and new information is elicited from the defendant about matters that came up during the day. Calabresi 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.’ ” However, it’s reasonable 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, 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.” Moreover, the restriction imposed by the district court blocked discussion only of trial testimony, and Andrews was given plenty of time the next morning to discuss other “trial-related” matters with his lawyer, Calabresi said.

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