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Recording Privileged Phone Calls Not a 6th Amendment Violation

by Shari Dovale   12/6/2017

On November 8, 2017, Ryan Payne filed a motion for dismissal with prejudice in the Bunkerville Standoff case because the government was caught recording attorney-client phone calls. In general, the specific calls cited were for co-defendant Blaine Cooper.

These calls are considered privileged and protected by the 6th Amendment, which reads:

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

On December 4, 2017 the prosecutors responded to the motion and requested that the Court deny the motion, including calling it “meritless”.

Within their response, they refer to Payne’s motion (emphasis added):

Defendant asserts that the Superseding Indictment should be dismissed
because the government represented in response to its previous motion in October 2016 that it had no jail calls between defendants and their counsel from CCAPahrump, but now privileged calls have been produced relating to another defendant, the prosecutors did not know attorney calls were included, and therefore collectively, the government has acted with flagrant misconduct.

The government goes on to state, “Even if such a violation has been shown, that violation in and of itself does not rise to a constitutional violation.“

Recording Privileged Phone Calls Not a 6th Amendment Violation
Read the government’s motion here

The prosecutors then go on to cite several cases to back up their claims. The bottom line, within all the legalese they have cited, is this:

Recording privileged phone calls is okay so long as they cannot be shown to substantially use it against the defendants.

They cite the examples of sending in undercover agents, or informants, to defense strategy meetings. If they cannot be shown to use it against the defendants, then it is still okay.

The prosecution then goes on to cite a case in which the recordings were deliberate, yet the court held that “…the Sixth Amendment is violated only when the government’s action ‘substantially prejudices the defendant.’”

The prosecution maintains that, in this case:

“the prosecution team has gone to great efforts to ensure respect for attorney-client privilege in this case.
To date, no one on the prosecution team has listened to Mr. Cooper’s privileged attorney-client calls or was aware of such calls.”

They expect everyone just to trust them? … because, like the cameras overlooking the Bundy Ranch home, of course no one watched them, took notes, or recorded the live feed.

‘Just because the prosecution says so’ does not rise to any respectable level in this case. They have been shown to be untrustworthy, deceitful and manipulative throughout months of proceedings. Their word cannot be trusted.

The prosecution has lost the public’s confidence. As they should have been held to a higher standard to begin with, yet were not, now they should be held accountable and be dealt the consequences of their actions. They do not even deserve the “benefit of the doubt”.

Trust must be earned, and AUSA Myhre and Company have not earned anything.


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