X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A private investigator who claims he has incriminating evidence against Scott W. Davis, arrested but never indicted for the 1996 killing of a Buckhead, Ga., millionaire, is one step closer to testifying before a Fulton grand jury. Until an appellate decision last week, the testimony of James R. Daws, a private investigator that Davis hired for his 1996 divorce case, had been delayed while Daws and Davis challenged whether the investigator’s grand jury appearance would violate Davis’ attorney-client privilege. Now, a Georgia Court of Appeals panel, ruling in an unusual case where the attorney-client privilege and the need for grand jury secrecy collided, has authorized Daws to tell what he knows. Davis, 35, was arrested in 1996 for the killing of David L. Coffin Jr., found shot to death in his burning mansion Dec. 10, 1996. At the time, police claimed Davis had shot Coffin because the millionaire had been having an affair with Davis’ estranged wife, who had filed for divorce. The son of a well-known forensic psychiatrist who develops profiles of killers, Davis was charged with murder, arson, breaking into Coffin’s home and stealing Coffin’s Porsche, which was found burning in a vacant lot in DeKalb County, Ga. Davis insisted he was innocent. Eighteen months later, Fulton County, Ga., prosecutors dismissed the murder warrant against Davis because of a lack of evidence. Coffin’s family had offered a $100,000 reward for information leading to a conviction in the Buckhead man’s death, then upped the offer last summer to $200,000. According to the Fulton County prosecutors’ brief, Daws’ attorney, G. Kennedy McLeod Jr., called the Fulton district attorney’s office the day after the new reward offer. McLeod won’t discuss what his client knows about Coffin’s death or Davis, but adds he doesn’t believe he called the next day. INVESTIGATOR SUBPOENAED Prosecutors subpoenaed Daws to appear before the grand jury and produce relevant documents, photographs or recordings he might have. But before his scheduled Dec. 14, 1999, appearance, Daws filed a motion to quash that subpoena. Days later, Davis, represented by Atlanta criminal defense lawyer Bruce H. Morris, moved to intervene and quash the subpoena. The issue both men wanted addressed prior to any testimony was the attorney-client privilege: whether the investigator, under the law, should be considered part of Davis’ legal team and, as such, subject to the same restraints on discussing confidential information as lawyers. McLeod says Daws simply wanted that issue resolved before offering any testimony. “My client wanted to do the right thing,” McLeod says. “He knew it was possible the person he was testifying against may have some attorney-client rights, so he wanted the court to determine what his obligations and duties were.” REFERRAL ISSUE The attorney-client privilege arose in this situation because Davis’ divorce lawyer, Jonathan R. Levine, had referred Daws to Davis, according to the appellate file. Daws informed Levine of the results of his investigation and submitted a report to Davis on Dec. 5, 1996, days before Coffin’s death, court documents say. Davis paid the private investigator’s fees. At a Dec. 20, 1999, hearing before Fulton Superior Court Judge John J. Goger, McLeod argued that Daws shouldn’t be considered part of Davis’ legal team because he didn’t give Davis legal advice. He also argued that some of Davis’ communications to Daws “had been in furtherance of a crime,” the June 8 appellate decision says. (While the panel’s opinion uses initials rather than Davis and Daws’ names, both men’s names are cited in the state’s appellate brief.) Levine testified at the hearing that while he and Davis had discussed hiring a private investigator, it was his decision to hire Daws. Morris asked to question Daws since he had the burden of demonstrating that the attorney-client privilege applied, but Goger refused, instead choosing to question Daws himself without either Morris, his client or the state being present. MOTION DENIED After Daws’ session with Goger, transcribed by a court reporter, the judge denied the motion to quash Daws’ subpoena, finding that “the direction and control of the witness by the attorney w[ere] not sufficient to warrant the confidence which the attorney-client privilege and work product doctrine require.” Goger also sealed the transcript of Daws’ in-camera testimony. Davis appealed, arguing his procedural rights were violated because his lawyer was denied the chance to cross-examine Daws. Fulton Deputy District Attorney Bettieanne C. Hart wrote the state’s appellate brief. Hart argued that, while there are instances when investigators have been covered by the privilege, in those cases the investigator was hired by the attorney and worked under the lawyer’s direction. Here, she added, Daws was an employee of Davis, not the attorney. She also argued that the crime-fraud exception to the privilege — which covers communications made in furtherance of a crime — should apply. “Clearly, the mere fact of representation by divorce counsel cannot be used as a sword to prevent the disclosure of communications regarding the contemplated … crimes of burglary or murder.” Writing for the appellate panel, Judge Herbert E. Phipps said “we are presented with two countervailing interests” — grand jury secrecy and the attorney-client privilege. The privilege, wrote Phipps, “does not extend to communications which occur before perpetration of a fraud or commission of a crime and which relate thereto.” The panel had reviewed Daws’ in-camera testimony to Goger, Phipps wrote, and concluded it did not conflict with Levine’s. Daws also told Goger what Davis had allegedly said to him once his investigation was complete, Phipps wrote. There was no violation of Davis’ procedural rights, Phipps wrote. “Because the investigator’s testimony authorized the court to find that the subject communications from S.D. were made after the investigator ceased acting as an agent or employee of the attorney, and that they fall within the crime-fraud exception to the attorney-client privilege, there are no substantive grounds for a reversal either.” Morris says he will ask the panel to reconsider. He says he has no idea what the investigator will tell the grand jury. “The danger is for $200,000, he could say anything.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.