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Jan Marie Franks may have known something about the still-unsolved disappearance of a 9-year-old girl four years ago near Dayton, Ohio. That leaves two problems. First, Franks died in a homeless shelter of a drug overdose in 2001. Second, investigators think she talked to her lawyer about the girl. The lawyer, former public defender Beth Lewis, is in the middle of a dispute that has brought her a contempt citation and may land her in jail. The issue is whether she must disclose the privileged communication of her deceased client. The question is being considered by the Ohio Supreme Court in a case over the investigation of the disappearance of Erica Baker, who went missing more than four years ago while walking her dog in a suburb of Dayton. Officials have declined to say why they think Franks knew about the girl’s disappearance. In April, Montgomery County prosecutors pursued Lewis in court after she refused to talk. Judge Michael Hall of the Court of Common Pleas ordered the former public defender to answer two sets of 10 questions. She refused. Hall found her in contempt and threatened jail time. Lewis’ lawyers, a pro bono team assigned by the Ohio Association of Criminal Defense Lawyers, appealed to the Ohio 2nd District Court of Appeals. The court unanimously upheld Hall. The issue is now before the Ohio Supreme Court, which voted, 4-3, to take the case and held oral arguments on Oct. 22. Ohio v. John Doe, No. 19408. The crux of the debate is the so-called testamentary exception written into the Ohio statute on privileged communications. More than half the states have codified the exception, typically used to allow a surviving spouse to waive the attorney-client privilege to determine the intentions of the deceased partner about his or her estate. Prosecutors note that the exception permits a spouse or close relative to waive the deceased’s right to confidentiality about any matter, as Franks’ husband has agreed to do. The law says a lawyer “may testify” in such a circumstance. “The general assembly in Ohio has decided that this is a matter of policy, not procedure, and courts are not free to alter it,” said Carley Ingram, the Montgomery County prosecutor who argued the case to the Ohio high court. Prosecutors say the privilege is not a constitutional right and that the Ohio Legislature deemed the spouse, not the lawyer, the best person to interpret the intentions of the deceased. Lewis’ attorneys say that the waiver should only be used in instances that further the client’s interests. One of Lewis’ lawyers, John P. Feldmeier of Cincinnati’s Sirkin Pinales Mezibov & Schwartz, said prosecutors have never verified what led them to Franks. He claims that the rumors involving Franks range from a jailhouse informant to a psychic, and that Lewis has never indicated whether or not she has information that could help the police. “Before the state attempts to pierce the privacy, they should have to certify to the trial court that they have exhausted all other means of obtaining the information,” Feldmeier said. He claims that the police twice tried to question Franks, but she referred them to Lewis. FALSE HOPE? Montgomery County Prosecutor Mathias Heck Jr. bristles at the suggestion that Lewis might not know anything. “If we go through all this and give the family hope and give the detectives hope, and they say they don’t know anything, then all I can say is shame on her,” Heck said. He said Lewis could have made a good-faith statement if she didn’t know anything and his office would have backed off. Paul Skendelas, president-elect of the defense lawyers’ group, said the group is very concerned about the decision and has filed an amicus brief to the court. The Supreme Court weighed in on the issue in a case over the suicide of White House Deputy Counsel Vince Foster, whose attorney’s notes were subpoenaed by the Office of the Independent Counsel. The Court ruled that Foster was entitled to the posthumous protection of confidentiality that is necessary to encourage “full and frank disclosure” between the attorney and client. Swidler & Berlin v. U.S., 524 U.S. 399 (1998). Swidler rejected the use of balance tests, even in criminal cases, to outweigh the client’s confidentiality interests. But prosecutors say the Ohio case is unique because there is a statute on the issue.

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