Update: A judge has refused to dismiss the murder indictment against Jonathan Niemic.
BOSTON — A New Bedford murder case may be facing dismissal Friday, not for lack of evidence but because of the actions of a Bristol County prosecutor.
One of the basic and ancient tenets of law protects communications between a defendant and his lawyer. But after that prosecutor sent taped conversations between a defendant and his attorney to a grand jury, the defense attorney says the judge has to throw the case out.
Defense attorney Robert Griffin, who himself was once chief prosecutor in Suffolk Superior Court, has called the actions of the Bristol County District Attorney's office "shocking" and "reprehensible".
"And what the government did was they took the phone calls and they entered them into evidence as an exhibit before the grand jury," Griffin said. "That's the misconduct."
On the other end of the phone line that day in 2010, charged with murder and held without bail, was Jonathan Niemic. His case at the time seemed unlikely to attract attention. It involved a verbal argument with another man over a woman outside an Alcoholics Anonymous meeting next to a soup kitchen in New Bedford. Then a fight, in which Niemic allegedly stabbed and killed the victim. The case seemed solid until the issue of the phone calls arose.
"They contain privileged communications between myself and my client," Griffin said. "It's clear the discussions in those phone calls were about his case, the state of his case, the state of the evidence and the state of the investigation of the commonwealth."
And therefore, Griffin argued, the judge has only one option.
"There is no other remedy for the court other than dismissing this matter," Griffin said.
Outside the courtroom, Bristol County District Attorney C. Samuel Sutter has been playing defense.
For Sutter, who is running for Congress in the Democratic primary against Rep. William Keating in the 9th district, the problem in his office brings added tension.
Sutter has acknowledged "we made a mistake," while defending the assistant district attorney, who has now been taken off the case.
"This is my only statement," Sutter said. "My statement is, as I have said before, it was a mistake but it was not egregious. The mistake was unintentional. The mistake was inadvertent."
And, Sutter insisted, it certainly didn't rise to the level that the murder charge should be thrown out.
Inside the courtroom, Sutter's first assistant, William McCauley, waged a fierce argument against dismissal, largely blaming the defense for the mistake.
"To this day, the sheriffs department asserts and there's no evidence that a privileged phone call has ever been recorded," McCauley said.
What happened inadvertently, McCauley told the judge, involves the prison phone system. When an inmate makes a phone call out, that call is routed through a computer which gives a recorded warning to the recipient.
The warning often says something like this:
Global Telelink. This phone call may be monitored or recorded. I have a pre-paid call from an inmate at North Central Correctional.
Whenever an inmate calls his defense attorney, however, the computer automatically shuts off when it recognizes the lawyer's registered number. But Griffin did not have a registered number, the prosecutor told the judge, so the calls were recorded.
"We wouldn't even be here. We wouldn't be here if that number had been an authorized number," McCauley said. "Because none of these calls would have ever been included in that disc."
And in any case, McCauley argued, the defense attorney should have heard that regular warning and taken heed.
Griffin said he never heard any warning because his phone calls were answered by a switchboard operator. But the prosecutor said that didn't matter. The defendant himself got the same warning, like a Miranda warning.
"If you choose to speak, anything you say can be used against you," McCauley said. "So he's been advised. And he's the privilege holder and he decides he's going to speak."
So, the Bristol County District Attorney's office argued, like a man sitting on a bench talking to his lawyer while another man sits beside them, the defendant had no reason to expect his call was confidential. He'd been warned. And the recording was not a violation of attorney/client privilege.
After the hearing, Griffin expressed amazement.
"I don't even know how to respond to that," Griffin said.
Apart from the explanations of technical glitches lies a more fundamental problem. As the district attorney's office acknowledges, that prosecutor, who has now been removed from the case, presented the conversations between lawyer and client as evidence to the grand jury in a first-degree murder case without ever listening to or reading them. That omission has caused shock among some legal experts and the defense attorney in this case.
"Having been a prosecutor myself for 13 years, I can tell you, I never put anything in a grand jury that I didn't listen to or read or know what it was before I put it in there," Griffin said.
Griffin says the damage is done, and you can't un-ring the bell.
The prosecution says there was no damage done, so there's no need to dismiss.
Though attorney/client privilege has been considered a bedrock legal principle for years, Judge Lloyd McDonald seemed skeptical of the motion to dismiss. Hearings continue Friday.
This program aired on March 30, 2012.