UM Law Professor Anthony V. Alfieri says Broward prosecutors exhibited poor form by listening to phone conversations
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UM Law Professor Anthony V. Alfieri was quoted in the following Sun-Sentinel article on December 28, 2008 about Broward prosecutors who listened to a phone conversation between Luis O. Martinez and his attorney. Professor Alfieri, who directs the Law School's Center for Ethics & Public Service, says it was “poor form and possibly unethical.”
Sun-Sentinel
December 28, 2008
Murder suspect seeks freedom after prosecutors snooped on calls to lawyer
Attorney says prosecutor ruined chance for fair trial by listening to calls made by defendant to lawyer
By Tonya Alanez
The telephone calls came from behind bars, from a suspect in a first-degree murder case to his defense lawyer.
A prosecutor listened.
So now a Broward Circuit judge must decide: Have the rights of the accused been so egregiously violated that he must be freed?
Defense attorney Chris Grillo is alleging misconduct, saying prosecutors eavesdropped on privileged conversations including key points of legal strategy, tainting client Luis O. Martinez's chances of getting a fair trial.
"It's unprofessional and inappropriate," Grillo argued in court. "They had no right."
Prosecutors said they asked the Broward Sheriff's Office for recordings of Martinez's phone calls from jail because they suspected he was making threats to his estranged wife. When they received compact discs of recorded calls, they included two conversations with his lawyer.
Prosecutors Brad Weissman and Julie Vogel said nothing of value was gained from the calls. Also, they are not privileged, the lawyers said, because Martinez gave explicit advance permission to be recorded by answering "yes" to automated voice prompts.
"Once you agreed to have the conversation on a recorded line, you destroyed the privilege," said Assistant State Attorney Scott Raft, who argued in court on behalf of Weissman and Vogel. "A recorded line is the functional equivalent of having a third party on the line."
Judge Susan Lebow has said she will rule on the matter by Jan. 1.
Martinez, 43, is accused of shooting Lighthouse Point businessman Charles Moretto, 58, in the head Oct. 29, 2003, while posing as an investor wanting to buy the man's fancy house and Bentley. If convicted, he would face life in prison.
At the time, Martinez was serving four years' probation for auto theft. He had spent time in prison for trafficking in stolen property, theft and fraud.
The recordings in question were made in September during the first days of his murder trial.
Lebow's decision will hinge on whether she deems the calls privileged exchanges between an accused man and his lawyer.
"[For prosecutors to listen to] a conversation between a criminal-defense attorney and a defendant facing first-degree murder in the middle of trial is fundamentally, ethically and legally wrong, and it's as simple as that," said Jamie Benjamin, a board member of the Broward Association of Criminal Defense Lawyers.
Law professors, though, have differing opinions.
Tony Alfieri, founder and director of the University of Miami law school's Center for Ethics & Public Service, says it's unlikely Martinez understood "he was waiving his attorney-client privilege."
Regardless, Alfieri said, prosecutors should not have listened.
"It's certainly poor form and possibly unethical," Alfieri said.
However, Bob Jarvis, professor of legal ethics at Nova Southeastern University, said the defense is "grasping at straws."
"If you are going to speak on an open line where you have no reasonable expectation of privacy and you want to talk about your case and you know that your client is calling from jail where phone calls are monitored, then, you know, I think all is fair in love and war," he said.
To protect lawyer-client confidentiality, the Brow- ard jail doesn't record calls from inmates to the phone numbers their lawyers have listed with the Florida Bar. Martinez called his attorney on another line.
Grillo said the prosecution is desperate after his client rejected a plea deal that would have meant spending eight years in prison.
"There is no eyewitness, there is no confession, there's no DNA, no fingerprints, no blood, no fiber, no forensic evidence that connects [Martinez] to the crime, and there's no murder weapon," Grillo said. "So it's a factually difficult case for them. After Luis turned down the plea offer, they reacted very angrily and this happened."
The jury is on a two-month recess. The trial is scheduled to resume Jan. 5.
posted 02-January-2009
