OP 26-0036 STERLING GLENN BROWN v. MONTANA 7TH JUDICIAL DISTRICT COURT

Added: 2026-05-22

[00:00:00]Morning everyone.

[00:00:27]Justice Gustin, you can hear us. Yes.

[00:00:30]>> Yes, I can. Thank you.

[00:00:32]>> Uh, Justice Shay has recused himself from this case. Uh, District Judge John Kzman has been designated to sit in his place. This is the time set for oral argument in OP 26-0036 Sterling Glenn Brown versus Montana 7th Judicial District Court Prairie County and Honorable Jessica T. Per residing.

[00:00:54]This is here on a rid of supervisory control and I understand I I met council beforehand so I understand Mr. Brown's council uh be splitting time and then a different I think Amika's council will be doing part of that. Is that accurate Mr. Hayes?

[00:01:11]>> That's correct your honor. Thank you.

[00:01:12]>> And Mr. Brown, you'll be doing the argument for the state.

[00:01:14]>> Yes, sir.

[00:01:15]>> Okay.

[00:01:17]May it proceed.

[00:01:38]may please the court. My name is Matt Hayhurst and I represent the petitioner and defendant in this case, Sterling Brown.

[00:01:47]>> Excuse me. Could you pick up that microphone and put it in? Yeah, we had another event in here yesterday, but the mic should be in the Yes. So, it's closer to you.

[00:01:56]>> Closer. Is that better?

[00:01:57]>> Yes.

[00:01:57]>> Yeah, that's better.

[00:01:58]>> May I start over?

[00:02:00]>> Yes. Sorry.

[00:02:01]>> Thank you. No problem. May it please the court and good morning. My name is Matt Hayhurst and I represent the petitioner and defendant in this case, Sterling Brown, along with attorneys Lance Jasper, Jenna Lions, and Forest Cra. Uh, as the chief justice pointed out, we have uh been permitted to provide part of our time amicus up to 10 minutes and we will reserve the balance of our time for rebuttal by Miss Lions.

[00:02:28]In in this case, the sheer magnitude of the attorney client violations, the admitted attorney client violations is significant.

[00:02:40]In fact, when it comes to the recorded phone calls, the violations can be measured down to the second.

[00:02:48]Specifically, 1 hour 56 minutes and 24 seconds. That is the length of time collectively that state agents listened to Sterling Brown's phone calls with his lawyer.

[00:03:04]that is shown in exhibit C to our petition which we provided as an exhibit to the court. This was a spreadsheet prepared originally by the state of Montana. What it does is it identifies the 20 telephone calls that were listened to and recorded. It identifies the length of the call and it also provides the percentage of the call that was listened to and that in turn allows us to create a calculation what we believe to be a bare minimum conservative calculation of the total listening time of 1 hour 56 minutes and 24 seconds.

[00:03:42]Thanks. And to put that in perspective, if you put that amount of attorney client access phone calls on a cassette tape and hopped in your car here in Helena, you could drive all the way up to Great Falls, past Judge Kudzman's chambers, and make it to Belt, or you could drive down to Dylan or over to Livingston. And the entire time, Sterling Brown's attorney client phone calls would be playing.

[00:04:12]Now, that is a stretch of time. Long enough that every minute matters. Long enough that you start to get uncomfortable.

[00:04:21]And now we take that from the perspective of Mr. Brown, who has been charged with the most serious of crimes for which he is presumed innocent. And yet, the state of Montana has listened to nearly two full hours of attorney client communications.

[00:04:41]And that brings us to the first point I would like to cover, which is the precedent in this case, both factually and legally. Before we go there, I'm just wondering from reading the materials, uh, you don't make a formal argument at all challenging the district court's finding of fact as clearly erroneous that no confidential uh, strategical information uh, was captured by the state during during the time of this.

[00:05:15]We are mindful of the the standard on our writ that we have to show a pure mistake of law. So we we disagree with that, but we we believe it is a legal mistake because under Montana's attorney client privilege under the statute 26183, anything a client says to an attorney is confidential. And likewise, any advice given by the lawyer is confidential. So, for purposes of applying the law to this record, uh we we are accepting the district court's findings of fact is correct. We we reserve our right to challenge that, your honor. Uh but we just don't believe we can challenge that in the context of the writ. Um we and there is evidence though that we think is important that wasn't directly addressed by the district court in its order that speaks to what these communications were like. For purposes of our decision at this point on a writ, we're accepting the district court's findings.

[00:06:17]>> Again, we we challenge that, your honor, but we understand the court's review is limited to legal questions. Yes. And the only thing I wanted to point out there is when it comes to the letters, and this is part of the factual precedent of this case, when it comes to the letters, we get a peak into what was contained there. not from any testimony by counsel, but from the testimony of the male officer, really the whistleblower here. When she learned that Mr. Brown's letters had been opened, she told him this and he was very upset. She testified he was upset because he explained to her that what was contained in the letters was a narrative of events. And that was the other exhibit that we provided to the court, which is exhibit BB. And this is an excerpt of one of the letters that was opened. This is 11 pages. The actual letter was longer. And you know on every page to my attorney Lance Jasper, that's what's contained herein. And we do have the evidence about what uh at least the jailer could testify about what was contained in the letter. C council, could I ask you um as between the letters and the interception of the telephone, is there a distinction in in terms of consent?

[00:07:36]>> We believe in terms of consent to access that.

[00:07:39]>> That's right. In other words, when he uh made those phone calls, he was told every time that they were being that they that they could be recorded. And I guess that's going to lead to the next question, but is that can that all does that also apply to the letters?

[00:07:56]>> We we well we we believe there's been no waiver of any kind. And the first point I'd make in response to that question is under this case under this court's case law, if you're going to prove a waiver of the attorney client privilege, then the burden is on the party trying to establish the waiver. So the state has to make that proof. Number one. Number two, what we know about the letters is that uh Mr. Brown's attorney sent pre-addressed envelopes with his law firm logo on them along with stationary which was accepted by the correctional facility and provided to Mr. Brown without other further explanation. And then on top of that, the letter was inspected by the member of the jail showing that it was correctly done. No indication to him that he needed to do anything further. And yet then the letters get opened. We believe there's been no waiver at all. We believe that the standard for that is much higher. Uh the the the court's case law indicates that that is a tough burden to prove particularly with a a party uh who's a lay person.

[00:08:56]>> But communications are intercepted in at least under federal juristprudence.

[00:09:03]um it's accepted that that they've consented based on those the the information that they get from the uh detention facility and and that and the posting of that is being recorded >> and and and we disagree that there's been any consent provided that there was any waiver whatsoever. And when it comes to the recorded phone calls, for example, what we know importantly that the the first person on the first day to access one of his phone calls uh among that group was Sheriff Lewis. And when he listened to that phone call, and he listened to 79% of it, but he realized it was an attorney client phone call.

[00:09:41]And then he raised the alarm. He contacted everyone he could think of to tell them to block that number. And yet it never happened. And then later we have 19 additional phone calls being accessed along with the letters being opened.

[00:09:57]>> The the district court found that he consented that was to those to the interception >> and and we obviously disagree strongly with with any conclusion to that effect or any uh suggestion to that effect. Um because under the circumstances, Mr. Brown and his attorneys were doing everything they could to preserve the attorney client privilege. And and furthermore, I'd point out that if you look at exhibit X to the evidentiary hearing, it's not a handout we provided, but what it is are redacted phone calls between the attorney and the lawyer. And what you will find in exhibit X are 16 different instances by my count of Mr. Jasper saying at the very outset of the call, I am Lance Jasper. I am attorney for Sterling Brown. Do not record this phone call. It is a privileged discussion again and again and again that was happening. Well, do you contest I know you contest the conclusion of waiver, but do you contest the facts upon which the state argues which is that there was a long series of violations of protocol by the defendant and defense council with regard to how to preserve the confidentiality of communications with this particular facility and and those were not complied with.

[00:11:16]>> We we we do challenge that. Again, we we appreciate the court's review, but but we challenge that. Um, >> you challenge the facts.

[00:11:24]>> We we do. I mean, it's in our view, your honor, there was no waiver. There was nothing even close to a waiver. One of the things that the district judge said in this case before we had the evidentiary hearing was every jail that she's used to has a policy, a written policy or protocol for blocking your number. As it turns out, we know from the evidentiary hearing, there was no written policy. It didn't come into effect afterwards. And yet Mr. Jasper provided an affidavit and testified that he did notify the correctional facility of his number. That testimony came in and we heard criticism by the state that we didn't call the legal assistant to back this up. Bear in mind that the legal assistant sat through four days of the evidentiary hearing, which means that the state whose burden they have to prove waiver could have called her as well and never did. Do you do you really think that there wouldn't be an objection to the state calling Mr. Jasper's legal assistant? I mean, that's I guess here's my question. The first one was February 2023.

[00:12:25]The sheriff found it, notified, based on the the facts I'm seeing, notified everybody, including the firm, not later than March. And yet this went till November of 23.

[00:12:39]And so that's the concern that I'm seeing Justice McKinnon is is yeah, I I agree. Clearly facilities doing some things wrong here. But defense council didn't do everything they could. They didn't we don't have evidence they actually registered their numbers. There were at least two different numbers. And if Mr. Jasper is at the beginning of every call saying this is an attorney call, that's a presumption that it is recorded and someone's going to listen to at least the first 10 seconds of it to go this is a lawyer rather than following the protocol so that it's not recorded at all. That and it's not really casting blame. It's we're trying to figure out what to do here. But the the facts put us in a position where we have to ask number one, like Justice McKinnon did, was there a waiver? And then two, there has what what your view on the demonstration of prejudice? the the view seems to be from from you you and your team that there should be a presumption of prejudice and Baka and Morrison indicate there needs to be some kind of a demonstration of prejudice.

[00:13:41]>> We we we believe prejudice is presumed and must be presumed and we believe Levy's the correct decision on this. Um we we believe that if there has been a two-part test met then you presume prejudice and you dismiss the case. And the two parts of the test are were attorney client communications accessed and second part were they accessed by a member of the investigation or prosecution team. If the answer to those two questions are yes then presump prejudice is presumed and the case must be dismissed. And there's a discussion about this in Levy. The other case that I would call to the court's attention is the Corey case from the state of Washington from 1963 and it contains a great discussion. This was the time when eavesdropping was really starting in the country and that's what had happened in the case was the sheriff's office had listened in on attorney client phone calls and the Supreme Court of Washington reviewed this and really explained why it's impossible to do anything but presume prejudice in this instance and it's impossible to have a fair trial once this bell has been rung.

[00:14:49]There's no way to unring it. So, council, I think the 10th circuit in hone recently um went through all the the uh the circuits and Levy is in a a real outlier decision and they you know, Hone put it in the framework of you know the AC privilege. um the confidentiality is waved by the consent procedure in the detention facility but you still have the sixth amendment constitutional right which is broader and so then the question is that two-part test and I think hone actually required actual prejudice but I think the question before us is uh given I mean if we get past the AC waiver issue we're into the framework of a sixth amendment analysis which is broader because the AC privilege is evidentiary.

[00:15:46]So once we and she there definitely and there is inconsistency in the district court's order. She did find I mean there were violations. So then the next question is how do we determine prejudice and your Levy is a presumed prejudice and it's a dismissal and that is the outlier uh case. Um, then there's a rebuttable presumption and I think several circuits follow that and then there's the requirement and I think it was HON's ultimate decision that there be actual prejudice. So I think what the court has to do is decide um first you know where the AC privilege you know how have how have we waved that um but secondly there's the bigger picture of that sixth amendment issue and so where should we be I'm I'm guessing you're it's a presumed prejudice it it it should be your honor and there's there's two reasons for this the first is a practical one and this is why we submitted the declaration of James Nelson not not because he served on this court, but because he spent 19 years prosecuting cases and he knows the fluid, lengthy, complex way they work up and he tried to explain in his declaration why you can't unring that bell. That's the factual side. The legal side is thankfully we are in the great state of Montana which has its own constitution. Article uh 2 section 24 is what we relied upon in addition to the sixth, fifth and fourth amendments in our motion. And this court has free reign to chart the appropriate course for the protection of the right to counsel. It is not bound by case law from any other state or any other jurisdiction when it's interpreting article 2 section 24. This court has sacrosanked protected sacrosan the attorney client privilege for years and years and years and there's no reason to uh reach a conclusion different here that has the practical problem of us trying to prove a negative of us being in this difficult position of proving no prejudice when a violation as you point out was found in this case that's undisputed.

[00:17:51]>> So you would base the presumed prejudice on section 24.

[00:17:57]>> Yes. Absolutely, your honor.

[00:17:58]>> A con a state constitutional basis.

[00:18:00]>> State constitutional basis as well as our attorney client protections that are in place and have been in place since 20 years before we became a state.

[00:18:08]>> I'm just trying to find a way to distinguish what you're asking us to do from the majority of jurisdictions. And I see section 24 as a possibility.

[00:18:16]>> Yeah, I I understand, your honor, and I I absolutely appreciate that. And I think that's the beautiful thing about the Montana Supreme Court interpreting our own Constitution here. You have the right to do that and you also have the right to look at this practically and figure the position that we've been put in and the difficulties we've been put in to try and unring this bell. So with that I think I've gone a little beyond my time. Uh we'll reserve our rest for rebuttal.

[00:18:39]>> One question though does that it's not a completely blank state. We've got Baka versus state from 2008 and and there we're saying there has to be some demonstration of prejudice. So, do we have to depart from our our precedent to get there?

[00:18:54]>> Not not at all. The way the way we read Baka, your honor, Baka applied and quoted Levy. And what Levy says is if those two parts of the test are met, you presume prejudice. That's exactly what we have here. And importantly, I want to I want to point out that the Levy test, the Baka test, it doesn't mean the defendant always wins. Baka shows that he tried to prove those two elements and he couldn't do it. But in this case, the proof is far far beyond that. In fact, it's to the point that it was undisputed before we had the evidentiary hearing that there were violations and it included people on the investigation team. That alone is what you're saying.

[00:19:36]>> Absolutely, your honor. And someday there may become a harder case that this court has to confront with one call or one letter, but that's not this case.

[00:19:44]>> Okay. Thank you. And it's a further distinction of Baka that in Baka the letters to his attorney were not there was no evidence that they were actually disclosed to the government whereas here the fact that the government interfered with the calls and the letters is established.

[00:20:01]>> Absolutely. It's a great point. Yeah. He he Baka couldn't prove his communications were intercepted by anyone from the state much less a member of the investigation or prosecution. And that's true here though. Thank you, your honor.

[00:20:19]>> And I believe Amicus.

[00:20:20]>> Yeah, it's >> we could do more of a back and forth, but >> Go ahead, council.

[00:20:30]>> Good morning and may it please the court. I'm Ryan Aken. I represent the Montana.

[00:20:34]>> Can you raise the microphone up a little bit? It's not picking up your voice.

[00:20:37]>> Is this better?

[00:20:38]>> Yeah.

[00:20:39]>> My name is Ryan Aken. I represent the Montana Association of Criminal Defense Lawyers. This case is unprecedented, not only in terms of the scope of the constitutional violations, but also in the sense that there is virtually no Montana precedent to guide the lower courts on how to deal with this type of problem. The problem itself, however, is not unprecedented. It is the inevitable result of the state's policy choice to record each and every single inmate communication, including those of pre-trial defendants who are entitled to a presumption of innocence and are awaiting their day in court. There are three main points that I would urge this court to consider in resolving this case.

[00:21:20]First, the Montana Constitution is relevant to the question presented.

[00:21:26]Second, the defendant is not responsible for safeguarding his own constitutional rights while he is in state custody. And third, dismissal is the only remedy that actually vindicates the rights violated.

[00:21:39]As to my first point, the state argues um that the Montana Constitution is wholly irrelevant to the question presented here. That's wrong for several reasons. Uh first the defense team specifically cited article 2 section 24 in its motion to dismiss in the lower court and it spoke broadly in terms of the right to counsel, the right to privacy, the right to due process.

[00:22:00]>> Did did the issue of consent come up?

[00:22:05]What was the issue of consent actually challenged on a basis that we should employ a higher standard than the federal jurisdictions for consent? That that that the idea that somebody who's detained and um is consenting to having their conversations recorded is kind of >> odd.

[00:22:34]I agree. Uh and I and I think that the um I mean >> they don't have any other choice but to consent. That's what my point is. But has that point been raised before the district court?

[00:22:45]>> You know, um I couldn't say for certain, your honor. I I apologize. Um but nonetheless, the the court's legal conclusion that there was a waiver of this right, I think is certainly within the um you know realm of what this court can can weigh in on and um and challenge reverse.

[00:23:06]Um, there is no dispute here that there was a violation of the constitutional right to council which is protected both by the United States Constitution and the Montana Constitution. And it is relevant, I believe, that the um that this situation is the direct result of a policy choice um by the government to engage in conduct that the authors of the Constitution of the Montana Constitution who gave us these rights would have found this type of electronic surveillance completely unjustifiable.

[00:23:40]As to my second point, the defendant is not responsible for safeguarding his own constitutional rights while he is in state custody. The state seeks to avoid uh taking responsibility here by claiming that these intrusions were inadvertent. But they are inadvertent only in the sense that collateral damage is inadvertent. The state may not have specifically intended to intrude upon attorney client communications, but it created the conditions that allow for this sort of thing to happen on a regular basis.

[00:24:11]Defendant is also not responsible for the action or inaction of his own attorney. Uh if for whatever reason the phone has not his attorney's phone number has not been blocked, then he has to make a choice as to whether to call his attorney knowing that it's going to be recorded and he's forfeiting his right to private communications or don't make the call at all and essentially forfeit his right to the assistance of counsel. Period.

[00:24:36]As to my third point, dismissal is the only appropriate remedy here. The remedy that the lower court provided suppression and exclusion of witnesses is fundamentally an evidentiary solution to an evidentiary problem. When the police obtain evidence in violation of your constitutional rights, they cannot use that evidence at trial. But the primary harm here is not the discovery of admissible evidence. It is um chilling of the attorney client relationship. It is insight into the minds of the defendant and his attorney.

[00:25:10]And the downstream effects of that sort of insight is impossible to measure for prejudice.

[00:25:18]Moreover, the right to council and the right to due process are designed to provide the very foundations for a fair trial. And when those rights are violated, it affects the very framework within which the trial proceeds, which is the very definition of structural error. And dismissal is the only appropriate remedy for that sort of error.

[00:25:41]And welcome any questions from the court otherwise.

[00:25:44]>> Okay. So, let's talk about your other remedies you've requested. Um, you've requested Mr. Brown's council requested to basically a different investigation from what was already conducted.

[00:25:57]and uh their challenge to the investigation by the DCA DCI agent came after his investigation was done.

[00:26:05]Basically, did they did they did they wave that argument by not filing a motion for a different independent agent to do that rather than participating in the investigation? No, I don't think so, your honor, because um certainly they could have objected to that at the time and and requested an independent um team, but you know, they we're here today to talk about whether or not the lower court gave the right remedy. And um here there was no remedy of any sort of independent investigative team. the question of whether or not the DCI team was appropriate um I I consider somewhat ancillary to the to the main issue.

[00:26:46]>> But that's but that's one of their arguments. Their arguments that they're asking us to order an independent investigation of some kind. My first question is did they wave that by participating with the DCI agents investigation and not challenging that at the outset?

[00:27:00]>> I don't believe so, your honor.

[00:27:02]>> Okay. So secondly, the district court judge said there's no point in another independent investigation when they've had however many witnesses testifying under oath subject to cross-examination for 4 days. So what's your response to that?

[00:27:16]>> Well, so and I don't want to step on the defense team's toes, but this is why I didn't I'm not suggesting that an independent team is an appropriate solution. My assessment is that there um essentially is no way to assess the danger, especially if you give it to an independent team who has no prior familiarity with the case and is not intimately involved with the case, you know, living and breathing the case for months on end. They're not going to be able to identify, oh, this statement may have been useful to the prosecution because the ways that that information, even knowing the, you know, the tenor of the conversation between an attorney and um and his client can provide an advantage to the state.

[00:27:58]>> So, the district court found that the agent didn't access any of the communications. He simply recorded, he documented who had accessed what and interviewed the people to see if they had remembered anything. So, I'm I'm just asking your response on that.

[00:28:16]>> Yes, sir. I I think I mean I I wouldn't challenge the integrity of any of these um officers certainly when when taking the stand.

[00:28:27]But I'm what I'm arguing is that that sort of endeavor um is not um is not basically helpful in determining whether or not um the right to attorney client privilege has been invaded and whether um dismissal is an appropriate remedy. Because once there has been an invasion and once we know that state actors have heard statements, have heard conversations um that there is a violation and the prejudice is impossible to assess and dismissal is the only possible remedy.

[00:28:59]>> So my other question is there's one of the requested remedies is that Mr. Brown's codefendant should be barred from testifying. It's not clear to me from the record what the nexus is between these violations and that remedy. What is the nexus there? I don't know, your I have to defer to the defense team on on that point.

[00:29:19]>> And was that asked of the district court judge below?

[00:29:24]>> I don't believe so. I don't >> uh I see I'm eating into defense time now. So, council, one more question.

[00:29:30]Your brief says when the state breaches attorney client confidentiality, it should be required to prove that absolutely no information relevant to the prisoner's defense was obtained and that no prejudice will result from it.

[00:29:51]The district court found, as summarized in its response, the court found there was no evidence that the attorney client privilege violations resulted in any harm or prejudice to Brown based on the specific testimony offered during the evidentiary hearing. Isn't that a satisfaction of the state's burden that you provide in your briefing?

[00:30:16]>> I don't believe so, your honor. Well, for I don't believe that the district court even um made mention of burdens at all and who whose burden is it to prove what whether there has been a harm or or not.

[00:30:28]>> Um I'm sorry, the second point of your question.

[00:30:33]>> Well, you you you state the standard in your brief about the state's burden to prove.

[00:30:38]>> Yes.

[00:30:38]>> And the district court's findings are that the state did in fact meet that standard.

[00:30:46]Yes, your honor. I I would still argue that when the attorney client we we know that there were state actors including members of the investigative team who listened to those conversations and I think that right there is prejudice in and of itself. And so simply saying I don't remember what I heard months after the fact and I understand this is now I'm guess I'm making a factual argument but >> right and so the state has this burden of showing there was no prejudice resulting from these conversations.

[00:31:20]>> I would argue that if if we if this court decides that there must be a prejudice analysis. I do believe that it must be the state's burden to prove beyond a reasonable doubt essentially that there was no intrusion and no harm.

[00:31:32]Thank I have one question. You say that the only remedy is dismissal, but in Levy where dismissal was ultimately the resolution.

[00:31:42]>> Didn't they find in that case that the defense strategy had actually been disclosed and that that strategy was now part of the public domain and so dismissal because of that was the only possible cure to the interception of attorney client communications? Yes, you are. That's correct. And >> and we end here. We don't have any evidence one way or the other on whether the strategy was actually relayed.

[00:32:11]>> That's true. Um but I would, you know, suggest that the court need not follow Levy. Um, and I would I would say that Levy was wrong on that particular point that there must be a demonstration that actual trial strategy was conveyed because again, you know, trial strategy even isn't necessarily the primary harm involved here. There's all kinds of advantages that the state can gain from intruding on that relationship. And so, I don't believe that um, you know, proof of the disclosure of trial strategy should be necessary.

[00:32:45]>> All right. So, one more. I'm not trying to beat up on you. I'm hoping your rebuttal can I'm asking you so your rebuttal can address it. Um the the courts sanctioned that Sheriff Lewis and Deputy Grey Eagle cannot testify in the brief, Mr. Brown's brief, had said this may be harmful to the defense because they wanted to potentially call one or both of them. So can the defense can the defense wave that remedy if it if they deem it helpful to them their case?

[00:33:13]>> I would think so. you know, that's is given to them as a as a reward and they say, >> "Okay, well, I'm hoping we get that."

[00:33:19]I'm I'm some of these nuances, I'd like them to be fleshed out.

[00:33:22]>> Certainly are.

[00:33:24]>> Any further questions, anyone? All right. Thank you, >> Mr. Brown.

[00:33:41]>> Thank you, Mr. Chief Justice. may please the court. My name is Roy Brown, assistant attorney general for the state at council's table. Megan Paddock, assistant attorney general for the prosecution.

[00:33:51]This court should affirm the district court's order for two reasons. First, the district court did not commit a mistake of law causing a gross injustice when it applied the applicable law United States versus Morrison and appropriately tailored a remedy and suppressing testimony from the upcoming trial from anyone who accessed or was exposed to any defense communications.

[00:34:09]Second, the district court did not commit a mistake of law causing a gross injustice when it allowed both the state and the defense to conduct independent investigations, allowed any party to subpoena and cross-examine witnesses for the 4-day evidentiary hearing, and invited the defense to identify any pertinent attorney client calls for review by an independent judge in camera, and the defense never took the district court up on its offer. First, on the first issue, the district court did not commit a mistake of law causing it.

[00:34:36]>> Let me interrupt you, Mr. Brown, but could you slow down just a little?

[00:34:39]>> Oh, I'm sorry. Hi, >> it's hard to keep keep up.

[00:34:42]>> Okay, thank you. Uh, the Supreme Court's decision in United States versus Morrison, not the preceding Third Circuit in decision and levy, sets the applicable standard for remedy of a sixth amendment violation regarding intrusions into attorney client communications. And it's important to note in the four corners of this petition, they're only challenging remedy. But the state is happy to answer any questions this court has on whether there was a constitutional violation or who bears the burden of proving prejudice. But I just wanted to state that outright. Morrison explains that the touchstone for the sixth amendment is a protection meant to assure the fairness of the adversary criminal process and the right to council must be balanced with society's interest in the administration of criminal justice. And the Supreme Court has said uh this should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.

[00:35:35]Importantly in Morrison it says absent demonstrable prejudice or substantial threat thereof dismissal of the indictment is plainly inappropriate even though the violation may have been deliberate. I want to pause here and point this court to state first yugal day 2000 MT MT 308. That's 2013 MT308.

[00:35:58]This court applied that holding in Morrison to an actual attorney client remedy uh case and uh in that case the state medical invest or the state u the state medical examiner communicated defense conversations to the actual prosecution. And this court found that the remedy of suppressing suppressing that medical examiner uh from the trial was appropriate.

[00:36:30]>> Morrison was an informant, wasn't it?

[00:36:33]>> Um yeah. So Morrison had So that's another distinction from Morrison is where they were sending actual agents into the defense camp to learn of defense strategy. And we really don't have that here at all. What the prosecution was doing was whenever they ran into this issue, they immediately notified the parties. They tried to rectify the situation. They did everything they could to avoid communications and then the defense starts communicating on the cell phone.

[00:36:59]>> I think which >> an attorney client privilege and confidentiality is is distinguishable. I get the application of Morrison. Yes.

[00:37:08]From an informant or that situation. I mean, I think there and there is case law on uh the recording situation that has come up here. Um >> um yeah, I'm sorry. Was there >> there's not really a question. Sorry.

[00:37:24][laughter] >> I'm just thinking out loud.

[00:37:26]>> No, I I like it. I love where you're going. Um so, and I do want to address um waiver because I know you've been um talking about that. So, but I >> Before you hit waiver, I I want to make sure we're keeping the right shoe on the right foot here. I mean, so we have to begin with I mean, are you conceding there was pretty poor I don't know what it was communication policy on the mail.

[00:37:49]Um, if the sheriff in March or February discovers this is going on, I understand, you know, I I think there's a certain amount of Mr. Jasper's firm is not doing whatever procedure, but there's a certain amount of alarm should have been raised months before. I mean, state, is that a fair statement?

[00:38:07]Well, it it depends on whether we're talking about the jail or the prosecution. Whenever the prosecution heard or accidentally intercepted something, they were immediately notifying all the parties. And that yes, the state does concede that the jail could have handled this entire situation better. But also regarding the mail, um Mr. Brown was not complying with with the policy and that policy is in place so that they know if if a letter goes out to uh and it gets lost, who do they send it back to? They need to know who's who's actually sending the letter. In this letter itself, it was um it was sent from the it doesn't label itself as from a law firm as the district court's findings of facts show, but it was al also addressed and received from the same entity from Jasper's law firm. So, uh it was reasonable for them to open that mail. Um and it was complying with policy for them to do so. Um, >> but didn't didn't the envelope have the initials of a jail personnel who had checked the letter to make sure there was no contraband in it >> and then signed off on it? And didn't that jail personnel not tell him to put his name and jail number on it?

[00:39:17]>> That's correct. So, it wasn't what it wasn't just Brown who didn't comply with policy. It was the person who initially inspected the letter. You're correct, your honor. Um but so when we're talking about remedy in this case which again is all that they challenge this court has applied Morrison. Um the district court did not commit a mistake of law causing a jo gross injustice and applying Morrison. It appropriately tailored the remedy to the scope of the intrusion which was suppressing the testimony and calls from anyone who accessed any of this information. But part of that remedy includes Sheriff Lewis and Deputy Grey Eagle not testifying, which um the defense says they want to have testify.

[00:39:59]>> They did testify, your honor. Um they both >> trial.

[00:40:03]>> Oh, yes. Oh, I'm sorry. And the state would not oppose um any motion from the defense to have them testify at trial.

[00:40:10]Um and and we believe that the district court uh if they have evidentiary purposes for doing so, the district court will permit it. the the scope of the uh district court's order is cons is is to contain the contagion from the intrusion. Um so the only case that that appellant has ever cited here was levy but levy is inapplicical prec precedent here. It wouldn't even imply in the third circuit on this facts. It's wrong on the remedy and it's probably no longer good law. Um, the defense argues that this court adopted levy in Baka, but in Baka, it was a PCR claim with an IA claim overlaid on it and the petitioner relied on levy and the court cited that the petitioner had relied on levy, but it's not entirely clear what the court was doing with levy, but but it was reasonable that the scope of what the district >> it was kicking the can down the road.

[00:41:02]>> Thank you, your honor. So, but you say that Morrison applies and Morrison does establish that there needs to be a substantial threat to the fairness of the trial. And on page 15 of your brief, you say that Voit cabined Levy and to say that Levy applies to deliberate intrusion. And you know that Voit explains Levy does not apply when the government was scrupulous in its effort to avoid procuring confidential defense strategies. So I have three questions.

[00:41:35]>> Yes. First, if Sheriff Lewis directed the Dawson County Correctional Facility to stop recording calls between Brown and his attorneys on the day after Brown arrived, which I think was February 14, but the Dawson County Correctional Facility continued to record those um me those phone calls for nine months and apparently nine more 19 more calls for an hour and almost two hours. Um, how can you characterize the government's efforts to avoid procuring confidential defense strategy as scrupulous? Second question, if the government's being scrupulous in its efforts to avoid procuring confidential defense strategy is what void limited leave you to requiring, how is it wise for the government to have its lead investigator, Tucker, investigate whether the government procured confidential defense strategy? And third, you characterized the decision of the lead investigator as being wise not to have listened to any of the calls and ought not to have read the letters. But if that's what he did, how could he then re how could his investigation reveal whether the government procured confidential defense strategy?

[00:42:47]>> Okay. Um, so I want to address your first question in the scope of whether there was ever even a constitutional violation on this record. Weatherford vers Berscie is the applicable case. And in that case, the um an undercover government informant vandalized the building with Berscie. To maintain his cover, Weatherford accompanied Berscie at his invitation to two tri pre-trial meetings with Berscie's defense council.

[00:43:10]But Weatherford did not elicit information from Berscie or his council.

[00:43:14]He did not ask to attend those meetings, and he didn't communicate anything to the prosecution team. And so the Supreme Court said, "There being no tainted evidence in this case, no communication of defense strategy to the prosecution and noal intrusion by Weatherford, there can be no violation of the Sixth Amendment." So when we look at the district court's findings of fact of what the jail actually did, they didn't communicate either among each other with these jail calls, much less communicate that to the prosecution. That's a critical element to establish a Sixth Amendment violation. So, um, when we're talking about what the jail did, it's also important to understand that they have fundamentally different reasons for recording and monitoring calls. What the jail is doing is doing that for safety and security purposes. Um, when when uh when people get on the line and say that they're attorney, they can't do that unless the defense council actually verifies their number that they are an attorney. Um, I want to I want to address your second question on the independent investigation. Um, Agent Tucker investigated not the phone calls themselves, that agent Tucker never had any access to the phone calls. What he investigated was the scope of the intrusion at the jail itself. Now, um, when he did this, he trans the calls were recorded and transcribed and given to the defense. I'm sorry, the interviews of all these witnesses were transcribed and recorded and given to the defense. the defense had the ability to cross-examine and bring any witnesses uh at at the evidentiary hearing that um that they could have uh if there was a discrepancy with how Mr. Tucker handled his case, if he was biased, the defense could have explored that, but that yielded no different result than what actually happened in the interviews. So, when they say Agent Tucker is biased or he had a he had his own he had his own uh opinion on what questions to ask, the defense wasn't precluded from asking any questions to these witnesses or bringing these witnesses. It ultimately yielded no different results. And when we look at the phone calls themselves, your honors, we're not, the reason I say we're not even close to an actual Sixth Amendment violation here is because it's the defense's primapacia burden to establish that actual attorney client competences have been disclosed. Um, and that's not even on the record here.

[00:45:29]>> And how would he do that unless he's recording the calls between the investigators and the prosecution? Well, that's pretty easy, your honor, because at the very beginning of this case, when they raised the attorney client claim in December 2023, all these calls were delivered to the defense. They sat with the defense for two years. They didn't do anything with them. So, when we get to the October 2024 status hearing, which is at petitioners exhibit O, I want this court to look at 90 pages 90 to 100. The district court specifically invited the defense, please, if you have any calls that you want actually figured out, we should do this in camera by an independent judge. And um the the district court invited the defense to submit a proposal. Then we get to the defense's proposal, Doc 213 in the record. Doc 213. Um the defense the defense's proposal was that an evidentary hearing is not required because they weren't required to show prejudice. But no court assumes a constitutional violation even in levy.

[00:46:34]You have to meet the Weatherford factors and then the inquiry into prejudice stops.

[00:46:39]>> But didn't the district court I mean so you're saying there's no violation because we don't really know what the substance of the the uh communications were. Um but but the defense is arguing that the violation occurs just by intercepting that communication.

[00:46:58]>> And that's that's incorrect, your honor, because it's not just an interception.

[00:47:02]It has to be an a communication or the there has to be some effect on the trial. It has to reach the prosecution.

[00:47:08]The prosecution has to actually learn of defense strategy for this even to even be an issue. We're not even in the ballpark under levy, which is the most permissive case that they rely they rely on or otherwise.

[00:47:20]>> But but that's that's confusing the evidentiary attorney client privilege, which there was a violation of that.

[00:47:28]>> Well, not on the district court's findings of fact, your honor. The district court actually said the state had a valid um argument for waiver and the defense had unclean hands.

[00:47:38]>> Yeah, waiver is a big issue. Um, >> yeah, >> I I if there had not been a waiver, there was a violation of the attorney client privilege. And I think the district court found that there were interceptions of those communications.

[00:47:55]And the question really is where do where are we with prejudice? And I think your your discussion is going to that prong of the the analysis, >> right? And so you don't presume prejudice without a violation is the state's point. Um, and >> before you move on, um, before we lose the threat on this, Sheriff Lewis listens to the call early on in the process, figures out that that number goes to Mr. Jasper's office and he calls up and says in effect, "Block this number. It goes to a law firm in Missoula."

[00:48:31]>> Yeah.

[00:48:31]>> And they don't do it. Do we know why?

[00:48:38]This guy's got >> why why the jail did not block the number?

[00:48:40]>> Sheriff Lewis, I assume his county's got a contract with the jail in uh Glend to house his inmates. It would seem to me like he's an important guy. Why would they just not do that when an authority figure says this number goes to a law firm in Missoula?

[00:48:54]>> Right. And so it's important to put this into context that we're in Dawson County where where the defendant is housed. The sheriff is in Prairie County. Um they're not connected at all. Dawson County is not involved in the prosecution of this case, but Dawson County has their own policies and procedures. And um the sheriff, yes, they the sheriff asked the county, the jail to do so, and the sheriff had no ability to do so himself because he was an external user of the ICS system. So the jail needs these numbers to come from the defense, >> right?

[00:49:24]>> So what's the magic in having Mr. Jasper call as opposed to the sheriff of this adjacent county?

[00:49:29]>> Uh because well, we don't we don't think that Mr. Jasper actually completed the call and we have I mean I can go through that too if you want.

[00:49:37]>> Well, right, Mr. J I mean the record reflects that Mr. Jasper didn't make that call. But my question is they the the jail staff finds out on day one or day two from an authority figure somebody who they would presumably regard as reliable that this number goes to a law firm in Missoula and they don't shut the number down. I'm just wondering does the record tell us why they did that? Were they waiting to hear it from the defense lawyer?

[00:49:59]>> Yes, and that was what was communicated to Mr. um to Sheriff Lewis was that it had to come from the defense itself >> was so what prompted the March emails between Mike G and uh >> that was the that was the intrusion with the letters your honor and so Mike G um talks to Jordan Kilby and she says we'll take care of it um we'll call the next day um and so >> that was letter or was that phone call >> I thought I thought that email >> that was that was an email between those two yeah >> okay but I'm saying is I thought did that email reference registering a phone number.

[00:50:32]>> Um yes, uh Mike G also advised uh the defense to register their numbers. So what the state is doing here is just give like trying to completely avoid these calls at every turn and telling the defense to register their numbers, but at the same time the prosecution has no idea that these calls are still going ongoing at the jail. I want to get to your point about the uh priv uh the privilege, your honor. Um this court in Nelson vers city of Billings 2008 MT36 says it it constrrews the attorney client privilege narrowly because that obstructs the truthf finding process and courts typically look at these attorney client privilege if it's if it's intended to mean confidential and under the circumstances that were reasonably uh understood to be confidential. Now the recorded calls were not the only way for Mr. Brown to communicate with his attorney. He could have uh the the jail had handbooks on his pod that said you can submit a kite. You can have a private call in an unrecorded room free of charge. By the way, Mr. Brown paid for every single one of these calls, but you can have a call free of charge in a private room unrecorded, which is the typical way that the jail does this. And so the the fact that the defense is saying, "Oh, we couldn't protect the privilege. We had no way to do this."

[00:51:48]That's completely inaccurate. they had two different ways to protect the privilege. And um and so when we're talking about privilege, you're right, the it's it's broader under the sixth amendment, but then you have to meet the sixth amendment factors. And um your honor, you said earlier that uh the district court said that there was a violation on the record of the sixth amendment. But the findings of fact from the district court do not say that. What the district court did here was impose an out of caution remedy. So when we're on remedy, it's just Morrison and Ugalde. This court doesn't even need to get to uh the scope of whether we should presume prejudice or whether there was even a constitutional violation.

[00:52:29]>> Well, I I understood the order to be based on consent that that Mr. Brown had consented based on all of the u the procedures that are in place for advising. Now, I want to get back to Justice Biggary's question about, you know, and I think that what you're talking about is when you're talking about the state, you're looking at them as a fundamental entity, the jail and maybe the uh prosecution can be lumped together of the state. I want to point the court to Williams vers Woodford 384F3567.

[00:53:03]This is in the 9inth Circuit. 384 F3D567.

[00:53:08]And William alleged that the jailhouse monitorings of his conversations with visitors, the interception by jail personnel of even a document indicating the appointment of a defense psychiatrist violated his six men right to counsel. The Ninth Circuit explained that even if we're going to lump these lump the jail together and assume that jailhouse monitoring and interception was deliberate state interference in a confidential relationship between Williams and his council, Williams never argued and the record did not show that the prosecution used any confidential information obtained from the monitoring and recording to gain an unfair advantage against Williams. And that's exactly what happened in this case. The district court's findings of fact stand on themselves. Finding 46. None of the individuals had any substantial recollection of the contents of the calls and all confirmed they had not discussed any such content with anyone else, nor had they heard others discussing any such content. So when we put what the district court did into perspective here, it opposed an out of caution remedy. It did not find a violation. It did not find there is no constitutional violation on this record there. The defense never met the Weatherford factors. They never met their primacial burden to even show that attorney client competences were disclosed and they had these calls for two years. Um I want to go back to >> finish that. I have another I'm off topic so finish. So on the point of the independent in investigation, I want to go back to the to the calls themselves.

[00:54:43]After the district court invited the defense to submit a proposal for dealing with these calls, the defense submits a proposal that says in the hypothetical, sure, this court could order an independent investigation, but the defense didn't point it to any jail calls. The state rejoins that in dock 224. That's dock 224. The state submits its own proposal and says, "No, defense, you are on notice that you have the primapacia burden to establish that actual attorney client confidences are disclosed. If you have any specific calls you want reviewed, you need to get this reviewed in camera by an independent magistrate." Nothing happened.

[00:55:21]Excuse me.

[00:55:25]So, I want to the issue raised briefly by Mr. Aken and again we're we're you know mindful of my order on Amikas is focused on what was raised below. He he's saying there's a separate violation not just sixth amendment right to council but Montana Constitution article 2 section 24 I believe he said so number one was that raised below and number two what's your response? I don't believe it was raised below, but again, your honor, we're only talking about remedy.

[00:55:55]Morrison leaves open there. There may be circumstances where this court finds that dismissal of an indictment is appropriate for egregious state conduct.

[00:56:04]Um, and so this court doesn't need to independently find under its own constitution uh any any right beyond the scope of Morrison because Morrison says, "Look, uh, and I would point the court to Morrison's footnote, too, actually."

[00:56:18]Well, I think I think the section 24 analysis was to provide a framework for district courts to employ. Um, and that answered the question of of whose burden, you know, establishing prejudice is >> right. And your honor, you're exactly right on United States versus home.

[00:56:37]That's one opinion that I want uh if if the court can review it, please do. um that that is where the 10th circuit they had previously had a similar analysis to levy but they completely jettisoned that analysis. They said we were wrong on the presumption of prejudice. We were wrong on structural error. There has to be some impact on the trial itself. And so we can look towards the seminal case weather for verse. The Supreme Court um rejected a fourth amendment rule which applied a per se prejudice rule regardless of any whether any communications were delivered to the prosecution. The Supreme Court said no.

[00:57:14]The Supreme Court said no. Again in Morrison they said no you can't just presume prejudice. Prejudice has to be established and absent demonstrable prejudice there is no dismissal of the indictment. I want to go back to uh why dismissal is the most severe applicable sanction which is not even relevant here in state first shock 2009 MT281 2009 MT281 this court again cites Morrison and says that dismissal is the most severe sanction applicable. It's not even appropriate for Brady or Miranda violations. This is not the case where the government sent someone into the defense camp to learn defense strategies. the the the prosecution treated this like a hot potato. It wanted nothing to do with any of these attorney client calls and the record shows that.

[00:58:02]>> So, what's the nexus be uh between this record and the request to have the codefendant uh barred from testify?

[00:58:10]>> Sure. Hunter, there is no nexus. Remedy is not choose your own adventure. It's supposed to be specifically tailored to the scope of the violation.

[00:58:17]>> What I'm asking is, is that somehow implicated in the the leakage of the violation that's alleged here?

[00:58:21]>> No. Okay. I I have no idea how they phrase that at all.

[00:58:24]>> That's what I was trying to >> Yeah. No, I have I have no idea, your honor.

[00:58:36]Um >> is there any requirement that waiver or consent which um Justice McKinna noted the district court basically based the decision on being knowing voluntarily voluntary and intelligent and can it be voluntary when you're in state custody and the state is controlling the system that's recording the calls and isn't listening to a Prairie County Sheriff who asks that the number be blocked.

[00:59:03]>> Absolutely, your honor. Yes, it can be.

[00:59:05]And and there was evidence presented at the evidentiary hearing that when a person has these recorded calls, they're in the pod with all the other people surrounding them. They are literally waving privilege at that moment. And so when and not only that, but they're on notice from signs, from their handbook, and from the recording itself that the call is recorded. And there is another method for a defense to protect I'm sorry there is another method to engage in these calls without do using the recorded system.

[00:59:35]>> I understand that. But there's a difference between knowing that your calls are being recorded while you also know that you have a sixth amendment right to have your communications with your attorney remain privileged and then expecting that 20 of 68 calls will be listened to and two letters will be opened.

[00:59:54]>> Is that Yeah. So I mean as far as the sixth amendment right um the state would just repeat that none of this none of these communications made its way to the prosecution. So there can be no sixth amendment violation. Um but as far as the scope of the attorney client privilege uh that's an evidentary issue.

[01:00:13]Um I'm not sure I'm not sure if I actually have an answer to what you're answering your question, but um I do want to point the court to Inry State actually when we're discussing this. Uh Enry State 986 NW2D686.

[01:00:29]Uh this is in the Supreme Court of Minnesota.

[01:00:32]>> One more time.

[01:00:33]>> 986 NW2D686.

[01:00:37]Supreme Court of Minnesota 2023.

[01:00:40]986 NW2D686.

[01:00:44]Exactly like this case. Defendant made 20 calls on a recording monitored line, notified at the beginning of every call that they were recorded. Prosecutors listened to recorded calls and disclosed those calls to the defense council. The district court ordered the prosecution put together an independent team and held that the Sixth Amendment was violated when the prosecution intentionally listened to these calls between the 10 defense team and the recorded jail calls. The Minnesota Supreme Court held the Sixth Amendment right to counsel is not implicated when the state provides an incarcerated defendant a process for communicating with counsel on an unrecorded phone line and the defendant instead chooses to communicate with counsel or share defense strategies with a third party by a method the defendant knows is recorded. This case is exactly on point here uh as far as the scope of the attorney client privilege, as far as the scope of the sixth amendment. So I saw there was dispute over the source of information about how his jaw was broken, the source of information as to some child abuse uh things that had happened to him.

[01:01:49]So number one, it is there is the evidence from the state that that was obtained from a non-privileged source.

[01:01:55]And secondly, is there anything else in the record? Those were the two that stood out to me. Is there anything else in the record that was disputed and alleged to have come from a privileged source? Well, no, your honor. And those and that's another point that the the state forgot to make is that the defense was willing to waver their attorney client privilege to throw these allegations out, but they were ultimately fruitless. And I want to point the court to uh United States versus Danielson 9th Circuit case 325 F3D 1054.

[01:02:23]Once the defense raises the allegation of an actual attorney client intrusion, which we these were the only two allegations they ever raised, the government must present evidence that the evidence it proposes to use was was derived from legitimate independent sources. So, we only have two allegations. They're in the record. Um, the state talked about them in briefing.

[01:02:46]All of these all of these things came from uh legitimate independent sources.

[01:02:50]Um, and that was even prior to these calls occurring. One of the calls was not even an attorney client call. Uh, I see them almost out of time. But, um, we're not even in the scope of a sixth amendment violation. Not even in the ballpark. The defense never made their private facial case to show that actual attorney client confidences were disclosed.

[01:03:16]>> The three weather factors were not met.

[01:03:18]Let me help you fill your last minute.

[01:03:21]Um, yes, thank you. So, the >> you are saving me left and right today, by the way.

[01:03:25]>> The amnesia element. Um, I think it was called collective amnesia. How do we I mean that can come up in every case.

[01:03:33]>> So, it's important to know the context of what the jail is doing with these recorded calls. Now, um, they're basically cycling through them looking for safety and security risks. And so when we have like the testimony from uh DCCF Patterson, >> I think I think they're looking for other things.

[01:03:50]>> Okay.

[01:03:50]>> They're hoping that there's some communication about uh the offense to another codefendant or something like that.

[01:03:56]>> And there's no evidence in the record that the uh that the uh Dawson County even knew who the Prairie County attorneys were. And there's no evidence that that was communicated to the state.

[01:04:07]So that's the gist of the state's case.

[01:04:08]I see my time is up. Thank you very much, your honors. Any further questions? Could I ask one question?

[01:04:13]>> Yeah, we're not letting you go.

[01:04:15]>> Oh, Mr. Chief Justice. Go ahead. Go ahead.

[01:04:18]>> Well, you've been arguing that this case is about remedy.

[01:04:21]>> Oh, yes, absolutely, >> honor. So, as I read the district court's finding, I'm setting aside your waiver argument for a minute.

[01:04:30]>> Yes. Uh with regard to the issue of prejudice, as I read the district court's findings in that regard, >> there is no prejudice.

[01:04:40]>> There is no need for a remedy.

[01:04:43]>> Yes. Yes, your honor. That's correct.

[01:04:44]>> But the district court provided a remedy.

[01:04:48]>> Yes.

[01:04:49]>> Are is it your position? You're not asking for that remedy. Not at all, your honor, because again, this is only about remedy and um the state is completely um okay with the factual findings that the district court made because there on that record, there's no sixth amendment violation. If the court wants to provide an out of caution remedy to alleviate any doubt in this case, the state has absolutely no problem with that and we can get to the trial. Thank you so much.

[01:05:15]Thank you.

[01:05:33]clock is a mere suggestion, so you can start whenever you're ready. [laughter] >> Make sure you pull the mic in just a little bit.

[01:05:40]>> It's raised up quite high.

[01:05:48]You can go.

[01:05:50]>> May it please the court. My name is Jenna Lions and I represent the defendant and the appellent uh petitioner in this matter alongside Lance Jasper, Matt Hayhurst, and Forest Cra.

[01:06:00]I don't think anyone in this courtroom today can sit here with a straight face and say that what happened here is okay and that there's no harm, no foul. What happened is not okay. And the sheer lunacy of how long it went on is something that we need to discuss and I only have eight minutes to do it. The attorney client privilege is sacriinct.

[01:06:23]It's the underpinnings of fundamental fairness with the criminal defendant and the prosecution.

[01:06:30]The third circuit, there's a circuit split on this issue. We'll admit that we relied on the court's uh reliance on the Levy case in the Baka decision. That was all we knew what to do when this came up. We didn't know what to do. We hadn't encountered this before, especially not to this extent.

[01:06:50]The third circuit holds that a sixth amendment violation amounts to structural error when the government acts with this intention and it's a per se prejudice rule. It's not incumbent on the defendant to establish prejudice.

[01:07:05]But if you follow the first or the ninth circuits, the presumption is in the defendant's favor, thus putting the onus on the government to disprove any prejuditial effect. And um in United States versus Mroani, that's a first circuit decision. The court discussed the practical problems and frankly the impossibility of putting the onus on the defendant to prove the prejudice. The reason is that a defendant or the defendant's council can't possibly know what the government is doing or why the government is engaging in in certain actions in their investigation. This is literally a Pandora's box situation. The information came out many, many times, uh, over an hour and 56 minutes of calls and over 60 pages of the most sensitive information that could possibly be in correspondence with a defendant's attorney. Those were red.

[01:08:04]The 10th circuit finally, and this was in uh the briefing that the KO Institute amicus and the hone decision uh that Justice McKinnon brought up. That briefing discusses the problems with the third the 10th circuit's test. That test encourages misconduct. It encourages covering up what happened and it results in a perverse outcome. Quite frankly, the outcome that's going to occur in this case if something is not done immediately, supervisory control is an extraordinary remedy and this is an unprecedented situation.

[01:08:43]If there wasn't a more extraordinary circumstance than this, I don't know I don't know what it would be. I don't know how to make a more extraordinary circumstance.

[01:08:54]Um, I want to talk about the waiver and consent issue because I think it's important. Um, an inmate in a detention facility cannot meaningfully consent to many things while they are in that situation. Um, it's not Mr. Brown's dis um responsibility either to protect his constitutional rights. It's been held in 19 since 1935 at least in Burger versus United States. It's a dual obligation of the prosecution team to protect the rights of the accused and to pursue prosecutions. Let me ask you about that.

[01:09:32]Uh does the state meet his responsibility to protect rights by providing an alternate way to call his attorney in a private room with no charge for an unrecorded call?

[01:09:49]I think that um in the M Minnesota decision that um the council just discussed with the court um that was the situation, but at the evidentiary hearing, it was undisputed that m Mr. Brown's name was not on the log of inmates who had registered to use that confidential line.

[01:10:09]>> Right.

[01:10:10]But was there evidence that that information wasn't provided to him?

[01:10:17]>> He could do that.

[01:10:18]>> There was evidence that he didn't do it.

[01:10:21]There was evidence that he may not have been provided with the information on how to use that information and how to register on that line. There wasn't even um evidence provided that he was actually provided with the inmate orientation handbook while he was at DCCF.

[01:10:40]And so, >> but as of at least March, his firm was provided with the information as to how to register those phone calls. Correct.

[01:10:50]We've seen that email.

[01:10:51]>> That's correct. uh Chief Justice Swanson, but I think it's really important to go into some of the other facts that establish why we don't even need to get that far down the line um to resolve this issue because as early as February 15th after the notice of appearance was filed, um Mr. Jasper was in person at an initial appearance discussing this issue with um Sheriff Lewis and the prosecution team. Earlier than that, Sheriff Lewis had notified um our firm and the prosecution team that he had listened to a call. Um at that point, Mr. Jasper testified at at the hearing that he understood the issue was taken care of. Mike Gee from the Attorney General's office represented that the issue had been handled. If I if we >> But I haven't actually seen the evidence in the record that it was handled. I didn't there I didn't see any evidence in the hearing that the firm registered its numbers and the numbers changed.

[01:11:54]There was a cell phone later in the year. So that's what I'm trying to figure out is is there evidence that that Mr. Brown and council to took advantage of that system by affirmatively registering.

[01:12:06]>> Mr. Jasper testified that he and Tammy Espinosa called and took registered their numbers. There is an email exchange between Mike Gee and Jordan Kilby about taking care of the numbers and where he apologized for the mail uh having been read. At that point, at the latest, it should have been handled by someone from the prosecution team, someone from Prairie County, someone from DCCF.

[01:12:34]And that is the prosecution team. You can't say we're not from the same office or we're not part of DCCF and so therefore it's okay because we're not sharing information. And it's been long held in Kyle's versus Whitley that the prosecution team is the prosecutors and the investigators and agents of the state who were involved in the prosecution. And let us not forget that one of the elements that needs to be established is that a member of the prosecution team had possession of the attorney client information. It hasn't really been talked about much today, but Agent Tucker did an investigation into his own alleged misconduct.

[01:13:19]That in and of itself is problematic enough because it means he had all of the information. He had all of the calls and um defense council was kicking and screaming about this beheumly the entire time. That's an inaccuracy that I must correct for this court.

[01:13:37]>> Well, I saw that that Mr. Jasper communicated directly to the agent that he felt he shouldn't be doing the investigation. Did Did the Did the defense file a motion [clears throat] for the court to order a different in or an outside investigation?

[01:13:50]>> We did. Uh, Chief Justice, >> I mean, was it before the investigation was done is what I'm asking. At No, at the end you did. Was there anything done at the beginning rather than >> There was um No, there wasn't anything aside from objecting to the attorney general's office um about the fact of agent Tucker doing that investigation.

[01:14:11]But I direct you to exhibit 7, exhibit E, and document 213, which is a document that the defense filed suggesting like the Peterson case that an independent TA team be appointed to review the information and determine whether it made it into the investigation or affected the investigation. And I want to remind the the court or just point out that um there was a question about the nexus between the codefendant trial and this trial. These violations were going on during the codefendants trial before the codefendants trial. From my perspective, his trial was completely tainted as well. And so if the court wants to fashion a remedy, the only remedy is dismissal with prejudice.

[01:14:57]Thank you.

[01:14:59]>> Any further questions for council?

[01:15:00]>> Yes, I do. Um the how do you feel about the state's concession that uh Deputy Grey Eagle could testify as well as Sheriff Lewis?

[01:15:11]>> How don't I don't want to call it a concession their invitation.

[01:15:16]Um, how I feel about that, Justice McKinnon, is that that creates a situation where we have to call people who have already been deemed not allowed to testify because of Judge Far said.

[01:15:31]They might have obtained information even unknowingly that might present unfairness to the defendant. And additionally, those witnesses can't testify. And if we call them, they might be able to testify, but Agent Tucker still is allowed to testify. And that is a more serious problem from my perspective.

[01:15:56]Miss Lions, when did you and the rest of the defense team figure out, if ever, that you could have all the unrecorded, unmonitored calls with your client you wanted by simply initiating the call to the other line at the jail?

[01:16:13]Um, I actually don't know the answer to that, uh, judge because I wasn't involved in this case until, um, much later on after Miss Kilby departed the firm.

[01:16:25]>> I think Mr. Jasper would like to help you on that one.

[01:16:29]>> Was on page four of the evidentiary hearing.

[01:16:34]>> Is it accurate?

[01:16:36]Is it accurate that we that we that was the first time we had learned that there was a private line that could be used?

[01:16:42]It's in there.

[01:16:47]>> Thank you, council. Case is submitted.