Conn, David, et al. v. Gabbert, Paul (04/05/1999)

By: Daniel Rubin, Medill News Service

Questions presented

1. Does a prosecutor violate an attorney's rights under the 14th Amendment by causing the attorney to be searched at the time his client is testifying before a grand jury?

2. If the answer to the first question is ""yes,"" was such a right on the part of the attorney clearly established in March 1994?

Brief

This case began as a small footnote in the high profile murder trial of Lyle and Erik Menendez, who brutally killed their parents in 1989.

As the Los Angeles County jury in the brothers first trial deliberated in January 1994, L.A. County Deputy District Attorney David Conn learned that Lyle Menendez had allegedly sent a letter to defense witness Traci Baker instructing her to lie in her testimony. After the case ended in a mistrial, an investigation of possible perjury by Baker was initiated by the District Attorneys office.

As part of that investigation, Conn obtained a subpoena that ordered Baker to produce any correspondence with Menendez. Baker told investigators who had come to her home that she had given all of her correspondence to her attorney, Paul Gabbert.

As Gabbert and Baker walked into the Los Angeles Courthouse for a scheduled grand jury appearance on March 21,1994, Conn approached the pair and told Gabbert that he had a search warrant to see if he had the letter with him. Gabbert was detained in a separate room while his belongings, including other files that had nothing to do with the Baker case, were searched.

As Gabbert was being searched, Los Angeles County Deputy District Attorney Carol Najera called Baker before the grand jury. After the first question in the grand jury room, Baker asked to confer with Gabbert and was let out of the grand jury room.

Gabbert was still being searched and was informed that Baker wanted to see him. Not knowing that Baker was right outside the room, he declined to leave his belongings and said that the prosecution should delay questioning. Baker returned to the grand jury room, and reading a card prepared by Gabbert earlier in the day, invoked her Fifth Amendment right against self-incrimination.

In June 1994, Gabbert filed a civil suit in federal court against Conn, Najera and two deputies who assisted in the search. Gabbert claimed that the search, because the timing was meant to prevent him from being with his client, had violated his 14th Amendment rights to freely practice his profession as well as his 4th Amendment rights to be free of unreasonable search and seizure. A district court judge granted summary judgment against Gabbert, ruling that his 4th and 14th Amendment rights had not been violated by the search..

The 9th Circuit Court of Appeals reversed, saying that the timing of the searches did indeed prevent Gabbert from practicing his profession. It also ruled that Gabberts 4th Amendment rights against unreasonable search and seizure had been violated.

“Without even looking for trouble, the interests of prosecution and defense can collide,” wrote Appeals Court Judge Michael Daly Hawkins, writing for a unanimous court. “This appeal demonstrates what can happen when one side steers those forces into direct and oblivious conflict.”

The Supreme Court granted certiorari on October 5, 1998, and limited review to the two questions above.

Kevin Brazile, Principal Deputy Counsel for Los Angeles County Counsel, said the appeals court decision could not be supported legally.

“My opinion is that the 9th Circuit created a brand new right that was not there,” he said. “The law was not clearly established at the time.” According to Brazile, Conns actions did not violate the law because precedent in similar cases had allowed those type of searches.

Gabberts lawyers, however, said the timing of the search is key to the 14th Amendment violation.

“The crux of our argument is the governments strategy to orchestrate the search as they were just about to enter the grand jury room interfered with an attorneys rights,” said Melissa Widdefield, one of Gabberts attorneys.

On April 5, 1999, a unanimous Court reversed. Writing for the Court, Chief Justice William Rehnquist held that a prosecutor does not violate an attorney's 14th Amendment right to practice his profession by executing a search warrant while the attorney's client is testifying before a grand jury. The Court found no support for the 9th Circuit's conclusion that the prosecutors' actions in this case deprived Gabbert of a liberty interest in practicing law.

It also found unconvincing Gabbert's argument that the search's improper timing interfered with his client's right to have him outside the grand jury room and available to consult with her is unavailing, since a grand jury witness has no constitutional right to have counsel present during the proceeding. The Court noted that it need not decide whether such a right exists, because Gabbert had no standing to raise the alleged infringement of his client's rights.