February 2, 2010 By Wallin & Klarich

In one of its last decisions of 2009, the California Supreme Court on automatic appeal has unanimously affirmed the verdict of death after the jury in the Sacramento County convicted the defendant of the first degree murder of a deputy sheriff and of the attempted wilful, deliberate, and premeditated murder of three other peace officers stemmed from an incident of domestic violence on March 2, 1995, in Ravendale. (People v. Ervine (2009) 47 Cal.4th 745.)

The defendant raised many issues in appeal. The Court has dismissed a claim of violation of the defendant’s right to counsel when the jail personnel had entered defendant’s cell while he was in court and read all of his notes which included materials sent to the defendant by his attorney. The trial court made a factual finding that Sacramento County jail personnel had read defendant’s privileged legal materials. However, because the defendant did not offer any evidence that jail personnel had communicated the confidential defense information to the prosecution, the trial court determined that defendant had failed to make out a prima facie violation of his Sixth Amendment right to counsel.

The Supreme Court has first established that not every intrusion into attorney-client privileged communication automatically establishes a prima facia violation of the Sixth Amendment. In fact, to be cognizable on appeal there must be a showing of evidence that the confidential communication was actually conveyed to the prosecution team for the defendant to claim that his right to counsel was violated.

Although the High Court has noticed that other courts are divided as to whether the defendant or the prosecution has the burden of establishing prejudice arising from governmental intrusion on confidential attorney-client communications, there is no dispute as to the duty of the defense to establish, as part of its prima facie case, that confidential information was actually communicated to the prosecution team. Ervine’s lawyers were unable to show that confidential information was conveyed to the prosecution team as a result of unrelated jail search of the defendant’s cell. Thus, the court held that he could not prevail upon his claim that his constitutional rights were violated.

The attorneys at Wallin & Klarich over 30 years experience fighting death penalty charges and fighting for your constitutional rights. When choosing a criminal defense law firm, it is essential that you choose a law firm like Wallin and Klarich that has a team of highly skilled attorneys who can help you or your loved one. Call Wallin & Klarich today at 1-888-280-6839 for a case evaluation or visit www.wklaw.com for more important information.

Visit our blog tomorrow for more information on criminal defense issues discussed in this case.

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