A criminal defense lawyer need not give grand jury testimony about text messages exchanged with a client who had bolted from court to avoid arrest.
Superior Court Judge Frederick Theemling Jr. quashed the subpoena proffered by prosecutors in State v. Thomas, Grand Jury No. F10, finding the testimony unnecessary because there was sufficient other evidence to show the defendant had skipped bail.
The Hudson County judge also said the defense lawyer’s revelation of the content of the texts in open court was a mere courtesy and didn’t make them subject to a grand jury subpoena.
Jacob Hudnut, a Jersey City solo and a pool attorney for the Public Defender’s Office, represented Lucius Thomas, who was arrested in August 2011 after police allegedly found cocaine and heroin in an apartment where he had been staying.
Theemling presided at a May 2012 jury trial. Thomas was acquitted on nine of 10 counts and found guilty only of resisting arrest. He was released from jail, having been there 10 months.
Thomas appeared at a sentencing hearing on July 6, 2012, but prosecutors moved to postpone and to have Thomas taken into custody on other drug charges lodged since his release.
Theemling granted the motion, but there weren’t enough sheriff’s officers to take Thomas into custody right away. During the delay, Thomas excused himself to the restroom. Hudnut later informed the court that Thomas had left the building and had texted him that he would not be returning. Hudnut said he texted back, urging Thomas to return, but to no avail.
Days later, Assistant Prosecutor Priya Ramrup asked Hudnut to forward her the text messages, but he refused.
Thomas eventually was arrested in September and remains in custody on the pending drug charges.
On April 15, Hudnut was served with a grand jury subpoena instructing him to appear on May 7 "to testify to all which you may know concerning the above matter," which Hudnut says he understood to refer to the text messages.
Hudnut informed Hudson County Deputy Public Defender Joseph Russo about the subpoena, who in turn contacted the Association of Criminal Defense Lawyers of New Jersey.
John O’Reilly of Day Pitney, an ACDL-NJ trustee, moved to quash the subpoena, arguing the messages were protected by attorney-client privilege and the information sought was available to the state through less intrusive means.
"The basis for the failure to appear was stated on the record and was relied upon by the court in the issuance of a bench warrant," O’Reilly wrote. "Consequently, a transcript of the proceeding is sufficient to establish that Defendant did not appear and what Mr. Hudnut reported to the court regarding Defendant’s nonappearance."
At a May 2 hearing, Ramrup acknowledged that she sought Hudnut’s testimony about the texts and argued that he had waived any privilege by revealing the nature of the messages in court.
But O’Reilly said Hudnut’s disclosure was compelled by Rules of Professional Conduct 1.6(b)(2) and (d)(2), which require a lawyer to disclose information to prevent a client from perpetrating a fraud on the court and to defend himself or herself from a complaint connected to a client’s conduct.
Theemling, ruling from the bench, granted O’Reilly’s motion without reaching the privilege issue. He found Hudnut revealed the text messages as a courtesy so that the court did not waste time awaiting Thomas’ return.
O’Reilly, the first assistant Morris County prosecutor from 1982 to 1992 and Warren County prosecutor for six years after that, says the ruling strikes a blow for public defenders’ integrity and independence. He says many clients already distrust public defenders because they’re paid by the government, and a contrary ruling by Theemling "would just magnify that by a hundredfold."
Hudnut says of the ruling: "No matter what happened last week, I would’ve done the right thing. And I don’t see participating in my client’s prosecution as the right thing."
Ramrup did not return a reporter’s call on Monday.