Scott Roberts for www.theindianalawyer.com
While police officers who overheard a pretrial consultation between a suspect and his lawyer were definitely in the wrong, the total suppression of all the officers’ testimony in the case may not be necessary, the Indiana Supreme Court ruled in a unanimous decision.
Chief Justice Loretta Rush wrote the decision in a case which remanded the matter to LaPorte Superior Court 1. The justices held each officer should be interviewed for prejudice and the state must prove beyond a reasonable doubt the entire substance of each witness’ testimony.
The body of Brian Taylor’s girlfriend, Simone Bush, was found on March 14, 2014, just a few hours after Taylor was dropped off at a police station. Taylor’s attorney arrived shortly thereafter and began meeting with his client. Police told the attorney to flip a switch if he didn’t want the police listening to his conversation, but when he did he piped his conversation with his client into another room where many officers were listening. They heard the location of a handgun, among other details. Two days later, Taylor was charged with murder.
A few days later, LaPorte County Chief Deputy Prosecutor Robert Neary told one of Taylor’s attorneys about the eavesdropping. The trial court held a suppression hearing, and the officers who overheard the conversation invoked their Fifth Amendment rights. The trial court ordered blanket suppression of their testimony but the Indiana Court of Appeals reversed in a split decision. The Supreme Court granted transfer.
Rush wrote the court was disappointed in the officers’ conduct. “The right to counsel would be a charade unless it guarantees privacy in those consultations, because a suspect’s candor with counsel cannot come at the price of self-incrimination. We would have hoped that principle too obvious to mention.â€
She later wrote, “More than one law enforcement official flagrantly and unconscionable disregarded that safeguard – eavesdropping on privileged attorney-client communications while turning a deaf ear to the Constitutions they swore to uphold. Those officers have not only violated Taylor’s constitutional rights to counsel but have also betrayed public trust.â€
However, Rush said excluding all testimony from the officers goes too far. “Even flagrant constitutional violations, though presumptively prejudicial, are not necessarily so, as illustrated by the trial court’s unchallenged ‘independent source’ findings as to many of the State’s exhibits.â€
Taylor claimed the blanket suppression is sustainable on three grounds: it violated his Indiana and federal constitutional rights to counsel; the officers’ pleading the Fifth violated his Sixth Amendment right to confront witnesses; and the prosecutor’s participation in the eavesdropping constituted prosecutorial misconduct.
On the first argument, Rush said it’s not clear that all of the evidence was tainted. Some was standard procedure in a crime investigation and there were bullet fragments and fingerprints. The officers could present a limited testimony to provide a foundation for evidence.
On the second argument, Rush said again the officers may be able to provide evidence that Taylor can then cross-examine on, though it may be unlikely.
Also, the court said the prosecutorial misconduct claim need not be addressed because there is not enough evidence to prove there was any – at least, not yet.
The case is State of Indiana v. Brian J. Taylor, 46S04-1509-CR-552.
 
