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Cop posing as attorney warrants reversal

Criminal defense attorneys will always find something that police officers do to complain about. And all attorneys can complain about non-lawyers posing as attorneys.

But at least Wisconsin attorneys have probably never seen anything quite like the police misconduct in a recent case from Tennessee.

A detective from the local sheriff’s department posed as a federal defender, obtained incriminating statements from a state court defendant by claiming that he could get him out of jail, and told him not to talk to his real lawyer about it.

When he talked about it to his real lawyer anyway, she initially thought he was deranged and requested a psychiatric evaluation. But an evidentiary hearing showed that it was true.

The Tennessee Court of Criminal Appeals was not amused, reversed the resulting convictions. The court ordered the indictments dismissed, and called the state’s actions egregious, abhorrent, reprehensible, and unconscionable.

John Edward Dawson was charged with various theft and drug charges in state court in Tennessee, and an attorney was appointed to represent him.

A detective then presented himself to Dawson at the county jail, claiming to be an attorney who could get him out of jail, and resolve all state and federal charges against him.

When Dawson’s real attorney discovered what was going on, she moved for an evidentiary hearing. At the hearing, the detective who had posed as the attorney invoked the Fifth Amendment and refused to testify.

But the trial court concluded that Dawson had just made “a real dumb decision” by confiding in a fake lawyer. Dawson then entered a guilty plea, but preserved the right to appeal on whether the State had interfered with his right to counsel.

The Tennessee appellate court found it had, and then some.

Judge James Curwood Witt, Jr., wrote for the court: “The conduct of the law enforcement officers in this case … is so egregious that it simply cannot go unchecked. That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent. That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case. Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments.”

The case is State of Tennessee v. Dawson, No. E2009-02469-CCA-R3-CD (PDF).

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