Amicus Curiae Brief — Pennsylvania v. Chmiel

ola Eee

Sie ae

No. 99-826

IN THE SUPREME COURT OF ‘THE UNITED STATES

OCTOBER TERM, 1999

COMMONWEALTH OF PENNSYLVANIA, Petitioner,

Ne

DAVID CHMIEL, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

BRIEF OF AMICUS CURIAE STATE OF CALIFORNIA

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of California

DAVID P. DRULINER

Chief Assistant Attorney Gencral

CAROL WENDELIN POLLACK

Senior Assistant Aitorney General

KEITH H. BORJON

Supervising Deputy Attorney General

*A. SCOTT HAYWARD

Deputy Attorney General

*Counsel of Record

300 South Spring St.

Los Angeles, CA 90013

Telephone: (213) 897-2392

Counsel for Amicus Curiae

(FORMER CAPITAL CASE)

QUESTIONS PRESENTED

1

i. Does the prosecution’s use of the

respondent’s former lawyer’s testimony to impeach the

respondent's contradictory testimony at his new trial

violate the respondent’s Sixth Amendment right to counsel

where the attorney-client privilege has previously been

waived by the respondent’s prior attack on former trial

counsel’s competence?

2. Does the prosecution’s use of the

respondent’s former lawyer’s testimony to impeach the

respondent's contradictory testimony at his new’ trial

violate the respondent’s Fifth Amendment right to be tree

from compelled selt-incrimination where the attorney-

chent privilege has previously been waived by the

respondent's. prior attack on former. trial counsel's

competence?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

INTEREST OF AMICUS CURIAL |

SUMMARY OF THE ARGUMENT 2

ARGUMEN'I 4

The Sixth Amendment Right To

l-ffective Assistance Of Counsel Is

Not Violated By The Admission Into

Evidence Against A Defendant Of

Certain Attorney-Client

Communications To Which The

Defendant Has Voluntarily Waived

Ihe Attorney-Client Privilege 4

\. The Admission Into Evidence O1

Unprivileged Attorney-Clhent

Communications Against The

Chent/Detendant Does Not Violate

Phe Sinth Amendment Right To

[-ttective Assistance Ot Counsel

‘s\

BB. The Sinth Amendment Does Not

Provide An Expectation That Counsel

Will Present False Evidence, O1

Suborn Perjury, In Providing Ettective

Representation For A Client 9

Hi

TABLE OF CONTENTS, CONT’D

Il. The Prosecution’s Impeachment Of

Chmiel At Retrial With Attorney

Kennedy’s Evidentiary Hearing

Testimony, Which Was Comprised Of

Attorney-Client Communications To

Which Chmiel Had Voluntarily

Waived The Attorney-Client Privilege,

Did Not Violate, Nor Even Implicate,

Chmiel’s Fifth Amendment Privilege

Against Self-Incrimination

CONCLUSION 20

TABLE OF AUTHORITIES

Page

Cases

Clark v. United States

289 U.S. 1, 15 (1933) y

Commonwealth v. Chmiel

738 A.2d 406 (Pa. 1999) 3, 4, 6, 8-13, 15, 17, 18

Commonwealth v. Goldblum

447 A.2d 234 (Pa. 1982) 7

Commonwealth v. Woodberry

S30 N.E.2d 1260 (Mass. 1988) 6

Eldridge v. United States

618 A.2d 690 (D.C. 1992) 6

Genentech, Inc. v. United States

International Trade Comiunisston

122 F.3d 1409 (Fed. Cir. 1997) IS

Georgia v. McCollum

S05 U.S. 42 (1992) 10

Harrts v. Commonwealth

O88 S.W.2d 338 (Ky. 1984) 6

In re Gray

123 Cal.App.3d 614 (Cal. 1981) 6

In re Sealed Case

676 F.2d 793 (D.C. Cir. 1982) 7

TABLE OF AUTHORITIES, CONT’D

Jackson v. State

540 S.W.2d 607 (Mo. 1976) 6

Joseph v. State

3 S.W.3d 627 (Tex. 1999) 6

McMann v. Richardson

397 U.S. 759 (1970) 14

Nix v. Whiteside

457 U.S. 157 (1986) 3, 9, 14, 15

Ohto Adult Parole Authority v. Woodard

118 S. Ct. 1244 (1998) Is

Shillinger v. Haworth

70 F.3d 1132 (10th Cir. 1995) Fe

State v. Thomas

599 A.2d 1171 (Md. 1992) 6

Strickland v. Washington

466 U.S. 668 (1984) 13, 14

Swidler & Berlin v. United States

118 S. Ct. 2081 (1998) 15

Tasby v. United States

504 F.2d 332 (8th Cir. 1974) 6

United States v. Ballard

779 F.2d 287 (Sth Cir. 1986) 6

vi

TABLE OF AUTHORITIES, CONT?D

United States v. Cote

456 F.2d 142 (8th Cir. 1972) 7

United States v. Dunnigan

S07 U.S. 87 (1993) lo

United States \. Jones

696 F.2d 1069 (4th Cir. 1982) 7

United States v. Ramone

32 F.3d 1203 (7th Cir. 1994) 5

United States v. Rogers

751 F.2d 1074 (9th Cir. 1985)

United States v. Zoltn

19] ULS. 554 (1989) i ae

Weatherford vv. Bursey

429 U.S. 545 (1977) a

Wharton v. Calderon

127 F.3d 1201 (9th Cir. 1997) 6. &

Other Authorities

I:dna S. Epstein & Michael M. Martin,

The Attorney-Client Privilege and the Work-Product

Doctrine, 76 (2d ed. 1988) lS

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

No. 99-826

COMMONWEALTH OF PENNSYLVANIA, Petitioner,

DAVID CHMIEL, Respondent.

INTEREST OF AMICUS CURIAE

All of the states have non-constitutional evidentiary

privileges, such as the attorney-client privilege, that are

subject to waiver. The question of whether unprivileged,

or once privileged, material may be admissible evidence

pursuant to state law, but nonetheless inadmissible on

federal Constitutional grounds, is therefore of significant

Importance and concern to amicus.

1. This brief is submitted in support of petitioner by amicus in

accordance with Rules 37.2 and 37.5 of the Rules of the Supreme

Court of the United States.

ie)

SUMMARY OF THE ARGUMENT

Courts have acknowledged a relationship between the

attorney-chent privilege, an exclusionary rule of evidence,

and the Sixth Amendment right to effective assistance of

counsel, a protection against fundamentally unfair trials.

The guarantee that attorney-chent communications remain

confidential allows a criminal defendant to be open with

counsel, helping the attorney to effectively represent the

detendant, within the meaning of the Sixth Amendment.

See, eg., United States v. Zolin, 491 U.S. 554, 562 (1989).

Por this reason, the possibility exists that government

Intrusion into privileged attorney-chent Communications

could violate a defendant's Constitutional right to) the

ettective assistance of counsel. See, e.g, Weatherford v.

Bursey, 429 U.S. 545, 554 (1977); Shillinger v. Haworth, 70

Psd 1132, 1138 (10th Cir. 1995).

However, once the evidentiary protection of the

privilege has been completely and voluntarily waived and

ceuses to exist, the relationship between the attorney-

chent privilege and the Sixth Amendment should be

deemed terminated. 9 This Court) and) others have

recognized that the relationship) between these two

doctrines reflects a concern for protecting privileged,

rather than) otherwise unprivileged, confidences. See

Weatherford, 429 U.S. at 554; Shillinger, 70 F.3d at 1138.

Voluntary waiver of the privilege, and subsequent

disclosure of once confidential communications, provides

a clear indication that confidentiality with respect to the

disclosed communications 1s no longer necessary to ensure

constitutionally effective representation. As such, the

admission into evidence against a defendant of formerly

confidential communications cannot logically even

implicate the Sixth Amendment right to effective

assistance of counsel. The Pennsylvania Supreme Court

held to the contrary. This Court should resolve this

Important Issue.

Further, the Pennsylvania Supreme Court failed to

consider the actual facts of this case with respect to its

holding. The court held that the admission of formerly

privileged attorney-client) communications against’ the

client will create a "chilling effect” so that defendants do

not feel free to be open and honest with their attorneys.

As a result, a defendant is apparently per se deprived of

the Sixth Amendment right to effective assistance of

counsel. Commonwealth v. Chmtel, 738 A.2d 406, 423

(1999). Here, however, the communications that were at

issue were false alibi stories provided by Chmiel to his

attorney. The attorney acted properly ino refusing to

present any false evidence at Chmiel’s first trial. Now v.

Whitestde, 457 U.S. 157, 174-75 (1986). Thus, it Chmicl’s

knowledge that) formerly privileged attorney-client

communications could be used against him would have

had any "chilling effect” in this case, the effect necessarily

would have been to curtail Chmicl’s willingness to provide

false stories to his lawyer and his expectation that those

falsehoods would be used to detend him. ‘The Sixth

Amendment does not protect against this type of “chilling

effect.” The petition for writ of certloran should therefore

be granted.

ARGUMENT

i.

The Sixth Amendment Right To Effective

Assistance Of Counsel Is Not Violated By The

Admission Into Evidence Against A Defendant

Of Certain Attorney-Client Communications To

Which The Defendant Has Voluntarily Waived

The Attorney-Client Privilege

The Pennsylvania Supreme Court’s holding in this

case was that, if an attorney could disclose once privileged

attorney-client communications by testifying against the

client/defendant in a judicial proceeding after the client

voluntarily waived the privilege, there would be an

unconstitutional "chilling effect" on the attorney-client

relationship, in terms of the defendant feeling free to be

open with his lawyer. Chmiel, 738 A.2d at 423. In other

words, if a defendant knew that his attorney could testify

against him at some proceeding, and could reveal formerly

protected communications, there would be a chilling effect

on the client’s willingness to communicate freely and

openly with the lawyer, which violates the Sixth

Amendment right to effective assistance of counsel. Thus,

even though the formerly privileged communications were

acmissible under state law, the Constitution was

nevertheless violated. See id. This holding, which is

inconsistent with existing federal authority, raises an

important question of federal constitutional law that

should be settled by this Court.

A. The Admission Into Evidence Of Unprivileged

Attorney-Client Communications Against The

Client/Defendant Does Not Violate The Sixth

Amendment Right To Effective Assistance Of

Counsel

The Pennsylvania Supreme Court’s holding in this

case was premised on its determination that a relationship

existed between the Sixth Amendment right to effective

assistance of counsel and the evidentiary attorney-client

privilege. Other courts, including this Court, have likewise

acknowledged the existence of this relationship. See, e.g.,

Weatherford, 429 U.S. at 554. In this regard, the attorney-

client privilege’s guarantee of confidentiality, which allows

a client to discuss matters freely and openly with his or

her attorney, helps to provide a criminal defendant with

the effective assistance of counsel guaranteed by the

Constitution. See, eg., Zolin, 491 U.S. at 562 (criminal

defendants must "be free to make full disclosure to their

attorneys ... in order that the client may obtain the aid

of persons having knowledge of the law and skilled in its

practice") (internal citations and quotations omitted).

Because of this relationship between the evidentiary

privilege and the constitutional guarantee, which has even

been described as "fundamentally complimentary," United

States v. Rainone, 32 F.3d 1203, 1206 (7th Cir. 1994), it is

conceivable that "under some circumstances a defendant’s

Sixth Amendment rights may be violated by the state’s

intrusion into the attorney-client relationship." Shillinger,

70 F.3d at 1138. In other words, there couid be Sixth

Amendment implications if the government obtained and

used against a defendant information protected by the

attorney-client privilege. See Weatherford, 429 U.S. at 554.

The Pennsylvania Supreme Court strays from the

reasoning relied upon by the other courts that have

examined this issue. The foregoing authorities all

contemplate governmental intrusion into attorney-client

communications, and use of those communications to the

defendant’s detriment, but only when the attorney client

privilege is still in effect. Thus, the possibility of a Sixth

Amendment violation exists only if the government

intrudes into privileged and protected attorney-client

communications. If such privileged communications could

actually be used against a criminal defendant, the resulting

"chilling effect" on attorney-client communications feared

by the Pennsylvania Supreme Court might be a distinct

possibility. In this case, though, under Pennsylvania law,

Chmiel’s allegations of incompetent counsel constituted a

complete and voluntary waiver of the attorney-client

privilege as to any communications relevant to that

charge Chmiel, 738 A.2d at 414. In other words,

pursuant to state law, Chmiel was deemed to have

voluntarily disclosed communications that he could have

kept confidential, thus terminating the privileged nature ot

the communications that other courts appear to have

deemed critical to any Sixth Amendment analysis.

Although it is a doctrine of great historical

significance and importance, the “attorney-client privilege,

like most other privileges, is an evidentiary privilege--it

protects against the compelled disclosure in court, or in

court sanctioned discovery, of privileged communications."

Wharton, 127 F.3d at 1205. Phrased another way, [t]he

attorney-client privilege is an evidentiary rule designed to

prevent the forced disclosure in a judicial proceeding of

2. The same is true in California, many other states, and many

federal jurisdictions as well. See, e.g., In re Gray, 123 Cal.App.3d 614

(1981) (California); Joseph v. State, 3 S.W.3d 627 (1999) (Texas);

Eldridge v. United States, 618 A.2d 690 (1992) (District of Columbia),

State v. Thomas, 599 A.2d 1171 (1992) (Maryland); Commonwealth

v. Woodberry, 530 N.E.2d 1260 (1988) (Massachusetts); Harris v.

Commonwealth, 688 S.W.2d 338 (1984) (Kentucky); Jackson v. State,

540 S.W.2d 607 (1976) (Missouri); see also Wherton v. Calderon, 127

F.3d 1201 (9th Cir. 1997); United States v. Ballard, 779 F.2d 287 (Sth

Cir. 1986); Tasby v. United States, 504 F.2d 332 (8th Cir. 1974).

certain confidential communications between a client and

a lawyer." United States v. Rogers, 751 F.2d 1074, 1077

(9th Cir. 1985); see also Commonwealth v. Goldblum, 447

A.2d 234, 464 (Pa. 1982) ("Between an attorney and client

the privilege is confined to confidential communications,

and does not exist as to those communications which to

subserve the interest of the client [were] publicly disclosed

by direction of the client himself. . . ." (internal quotations

omitted)). In short, the attorney-client privilege makes

inadmissible against the client/defendant any attorney-

client communications to which the privilege applies.

As to unprivileged attorney-client communications,

however, there seems to be little question about their

constitutional admissibility against a defendant. For

example, a defendant can waive the attorney-client

privilege by voluntarily disclosing attorney-client

communications in the presence of, or specifically to, a

third party unaffiliated with the defense team. See United

States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982); In re

Sealed Case, 676 F.2d 793, 808-09 (D.C. Cir. 1982); United

States v. Cote, 456 F.2d 142, 144 (8th Cir. 1972). Amicus

have not located even a single published state supreme

court or federal court case holding that the Constitution

was violated where communications as to which a

defendant voluntarily waived the attorney-client privilege

by disclosing the communications in the presence of or to

such a third party, were subsequently used against the

defendant in court.

3. As another example, communications by a client/defendant to

an attorney concerning the defendant’s intent to commit fraud or a

criminal act in the future are considered outside the scope of the

attorney-client privilege, and are therefore unprotected and admissible

attorney-client communications. See, e.g., Zolin, 491 U.S. at 562-63:

see also Clark v. United States, 289 US. 1, 15 (1933). Amicus have

found no authority standing for the proposition that the admission

against a defendant of such unprivileged communications violates the

Again, there is no question in this case, under

Pennsylvania law, that Chmiel is deemed to have

voluntarily waived the attorney-client privilege with respect

to certain communications when he challenged his trial

attorney's competence following his conviction. Chmiel,

738 A.2d at 414. It is also not in dispute that the relevant

attorney-client Communications were admissible against

Chmiel under state law. /d., at 415-20. Nevertheless, the

Pennsylvania Supreme Court found Chmiel’s voluntary

waiver of the attorney-client privilege in this case operated

ditferently, and somehow failed to sever the relationship

between the privilege and the Sixth Amendment right to

effective assistance of counsel.

As the United States Court of Appeals for the Ninth

Circuit has aptly observed, "the attorney-client privilege

simply does not extend... to non-compelled, voluntary,

out-of-court [disclosures], any more than it does to an

after-dinner conversation.” Wharton, 127 F.3d at 1205. In

this regard, whether attorney-client communications fall

outside of the attorney-client privilege because the

defendant voluntarily discloses those communications to a

third party for no particular reason whatsoever, or

specifically because he is challenging his trial attorney's

competence, the communications are still equally

unprivileged and constitutionally admissible. It a

communication subject to the attorney-client privilege

becomes constitutionally admissible against a defendant

because he has waived the privilege by disclosing the

communication for no apparent reason at all, amicus fail

to see how the result can possibly be different simply

based on the specitic .cason for the disclosure.

In the end, an unprivileged communication is an

unprivileged communication. If one type of such attorney-

client communication Is admissible without offending the

Constitution in any way.

i)

Constitution, there is no rational reason why the result

should be different for any other unprivileged attorney-

client communication, simply because the motive for

disclosure might have been different. Yet, the

Pennsylvania Supreme Court has drawn a distinction in

this case. In light of the authorities discussed above, that

distinction appears to be without legal support. In any

event, the state supreme court’s decision clearly involved

an important and unsettled constitutional question that

should now be resolved by this Court.

B. The Sixth Amendment Does Not Provide An

Kxpectation That Counsel Will Present False

Evidence, Or Suborn Perjury, In Providing Effective

Representation For A Client

The Pennsylvania Supreme Court’s holding was also

erroneous when applied to the facts of this cause. The

state court was concerned that there would be a “chilling

effect’ on the Sixth Amendment right to. effective

assistance of counsel if Once privileged attorney-client

communications could be used against the client. Chmiel,

738 A.2d at 423. In other words, that court feared

criminal defendants may be dissuaded trom being open

and honest with their attorneys if they knew the attorney

could testify against them and disclose attorney-client

communications in the process. Jd.

Even if legally accurate in other circumstances or

situations, which amicus doubt, such a rule has no

applicability here. The attorney-client communications at

issue In this cause were the false alibi stories Chmiel

conveyed to his attorney. Chmiel had no protectable

expectation under the Constitution that his attorney would

knowingly use perjured testimony or evidence otherwise

known to be false in defending him at trial. Nix, 457 U.S.

at 174-75. Thus, if Chmiel’s willingness to partake in full

disclosure with his attorney would have been "chilled"

10

here, had the rule announced in this case already been in

existence, he would only have been "chilled" from

providing his lawyer with false evidence* "[N]either the

Sixth Amendment right [to the effective assistance of

counsel] nor the attorney-client privilege gives a criminal

defendant the right to carry out through his counsel an

unlawtul course of conduct.” Georgia v. McCollum, 505

U.S. 42, 58 (1992).

In this case, Chmiel was charged with the stabbing

deaths of three individuals. At trial, he wanted to testify

about his alibi, and wanted his attorney, one Kennedy, to

present an alibi defense. During the course of their

attorney-client relationship, Chmiel had provided Kennedy

with multiple, dissimilar versions of the events leading up

to the murders. Chmiel’s first story was that he was

present at the scene when the murders occurred, but just

‘to case the joint.” While doing so, Chmiel saw an

individual he believed was his brother, Marty, running

trom the home of the murdered victims. Chumiel, 738

A.2d at 410. Five months after providing that account,

Chmiel changed his story, claiming he was nowhere near

the scene when the murders occurred, and had a witness

who would testity in that regard. Chmiel’s third account,

which conveniently arose the day after Chmiel’s brother

testified against him at the preliminary hearing, was that

Marty confessed to being the murderer. /d., at 411-13.

Kennedy discouraged Chmiel from testifying, and declined

4+. The Pennsylvania Supreme Court's holding here cannot escape

the irony that even after the prosecution announced its pretrial

intention to impeach Chmiel with his formerly privileged statements,

should he take the stand and rely on the alibi defense, Chmicl was nor

dissuaded from providing his second lawyer with and pursuing his

highly suspect, if not outright false, alibi defense. Thus, there was

clearly no “chilling effect” on attorney-client communications in this

case.

to present any alibi defense. Chmiel was convicted and

sentenced to death. /d., at 408-09.

Following his conviction, Chmiel filed a petition in the

trial court alleging that he had been denied effective

representation because counsel discouraged him from

testifying, failed to investigate or present alibi evidence,

and failed to request an accomplice jury instruction. An

evidentiary hearing was held with respect to these claims.

Chmiel, 738 A.2d at 409.

Under Pennsylvania law, "a party who attacks the

competence of his or her counsel cannot rely on the

attorney-client privilege to prevent counsel from

responding to such attack." /d., at 414. "In effect, the

chent’s attack on the competence of counsel serves as a

waiver of the privilege as to the matter at issue.” /d. As

a result, attorney Kennedy testified at the evidentiary

hearing. As to Chmiel’s claim that Kennedy should have

allowed him to testify on his own behalf, Kennedy stated

that he discouraged such testimony because Chmiel "had

told him more than one version of the events at issue,”

and “he risked suborning perjury if he allowed his client to

testify.” dd., at 415. As to the reason Kennedy did not

investigate possible alibi witnesses or defenses, he

explained "that his client had rendered the search for such

Witnesses more difficult by giving more than one version

of his whereabouts on the night in question.” Jd. Both

the trial court, and state supreme court on review, denied

relief as to the foregoing claims of constitutionally

deficient representation. However, the Pennsylvania

Supreme Court ultimately granted relief, and a new trial,

for counsel’s” failure to request the accomplice

instruction.> /d., at 409.

5. The Pennsylvania Supreme Court found a complete and

voluntary waiver of the attorney-client privilege despite the fact relief

was ullmatcly granted on a different claim of incompetent counsel.

Id., at 414.

12

At his retrial, represented by a new attorney, Chmiel

testified on his own behalf, and presented an alibi defense

in the form of the second story he had told Kennedy.

Chmiel, 738 A.2d at 409-10. To impeach his testimony,

the prosecution used attorney Kennedy’s testimony from

the earlier evidentiary hearing, which was comprised of

attorney-client communications to which Chmiel had

voluntarily waived his attorney-client privilege by attacking

Kennedy’s competence /d., at 410-13. Chmiel was

again convicted and sentenced to death.

On appeal to the Pennsylvania Supreme Court,

Chmiel argued, among other things, that the use of

Kennedy’s evidentiary hearing disclosures denied him his

Sixth Amendment right to effective assistance of counsel,

as well as his Fifth Amendment privilege against self-

incrimination. /d., at 420-24. The Pennsylvania Supreme

Court agreed.

The court began by observing that "[t]he purpose of

the [attorney-client] privilege is not to further the fact-

finding process, but to foster a confidence between

attorney and client that will lead to a trusting and open

dialogue.” /d., at 422-23.) The court cited additional

authorities, all generally standing for the proposition that

the attorney-client privilege serves the critical function of

guaranteeing, absent a waiver of the privilege, that the

matters discussed by attorney and client will remain

confidential, so that the client will freely and openly

discuss matters with his lawyer, allowing the lawyer to

present the best defense legally available. See td. Thus,

according to the Pennsylvania Supreme Court, if an

attorney could testify against a client, and such testimony

was based on communications once covered by the

attorney-client privilege, the result would be "a chilling

effect on defendants’ exercise of their right to the effective

6. Attorney Kennedy died prior to Chmiel’s retrial. Chmuel, 738

A.2d at 423, 1.11.

13

assistance of counsel." Chmiel, 738 A.2d at 423. As the

court continued,

Knowing of the possibility that his counsel may

ultimately be required to testify against him, a

defendant may decide that counsel cannot be

trusted with the most damaging information

concerning the case; or he may decide not to

challenge counsel’s effectiveness, fearing that his

ability to mount a successful defense at a second

trial has been fatally undermined by the

admissibility of his communications to prior

counsel. The fundamental unfairness of

requiring a defendant to choose either of those

Options is illustrated by the present case: the

situation that such a choice seeks to avoid--the

admission at a second trial of prior counsel's

evidentiary hearing testimony--has occurred

precisely because prior counsel was shown to

have been ineffective.

Id. Asa result, the Pennsylvania Supreme Court held that

using attorney Kennedy’s evidentiary hearing testimony to

impeach Chmiel at the criminal retrial, while admissible

under state evidentiary law, violated Chmiel’s Sixth

Amendment right to the effective assistance of counsel.

Id., at 424. This holding was entirely unsupported by the

facts of this case.

The Sixth Amendment to the United States

Constitution guarantees the criminal defendant the right

‘to have the Assistance of Counsel for his defense." U.S.

Const., Amend. VI. This Court has made clear that the

right to counsel is more than a guarantee "[t]hat a person

who happens to be a lawyer is present at trial alongside

the accused... ." | Strickland v. Washington, 466 U.S. 668,

685 (1984). Instead, the right to the assistance of counsel

means “the right to the effective assistance of counsel.”"

14

Id., at 686, quoting McMann v. Richardson, 397 U.S. 759,

771 n.14 (1970).

In defining "effective assistance,” this Court observed

that "specific guidelines are not appropriate.” Strickland,

466 U.S. at 688. In order to obtain relief based on

allegations that counsel was ineffective, "the defendant

must show that counsel’s representation fell below an

objective standard of reasonableness." Jd. Thus, the

performance inquiry to a claim = of incompetent

representation Is necessarily a Case-specific analysis where

the reviewing court must determine "whether counsel’s

assistance owas reasonable — considering all — the

circumstances.” /d.

Since establishing the foregoing test in Strickland, this

Court has had various opportunities to apply it to specific

factual circumstances. One such case involved the

question of whether a lawyer deprived a client of effective

representation by failing to present perjured testimony, or

evidence otherwise known by the attorney to be false.

Nix, 457 US. 157. There, this Court held, in no uncertain

terms, that an attorney who refuses to defend a client

through the use of perjured testimony or evidence known

to be talse, does not provide constitutionally deficient

representation. /d., at 174-75. As the Nex Court stated,

an attorney's duty of loyalty, and obligation to detend,

is limited to legitimate, lawful conduct

compatible with the very nature of a trial as a

search for truth. Although counsel must take all

reasonable lawful means to attain the objectives

of the clhent, counsel is precluded trom taking

steps Or In any way assisting the client in

presenting false evidence or otherwise violating

the law.

Id., at 166. The Nex holding illustrates that in this case,

the Pennsylvania Supreme Court has misconstrued the

15

scope and protections afforded by the Sixth Amendment

right to counsel.

The attorney-client communications at issue in this

case were those relating to the various alibi. stories

provided by Chmiel to attorney Kennedy, most of which,

if not all, were clearly untrue. As discussed previously, an

attorney cannot be constitutionally ineffective for failing to

use at trial evidence known to be false. Nix, 457 USS. at

174-75, Thus, Chmiel had absolutely no jawful

expectation, under the Sixth Amendment’s guarantee of

effective assistance of counsel, that either Kennedy or his

subsequent lawyer on retrial would utilize at trial the

Obvious falsehoods provided by Chmiel.

Moreover, because the law here is indisputable,

Chmiel likewise knew, or at least should have known, that

his attack on attorney Kennedy’s competence, as to the

failure to use any false alibi evidence, in the form ot

Chmiel’s own testimony or otherwise, could not possibly

have been successful (and it was not). Hence, the only

possible “chilling effect" on the attorney-client relationship,

had Chmiel known that Kennedy’s evidentiary hearing

testimony could be used against him at retrial, would have

been on Chmiel’s willingness to provide his attorney with

false evidence and untruths in the first place. This type of

“chilling effect" cannot possibly violate the — Sixth

Amendment.

This Court has stated that "the [attorney client]

privilege is intended to encourage full and frank

communication between attorneys and their clients and

thereby promote broader public interest in the observance

of law and the administration of justice." Swidler & Berlin

Vv. United States, 118 S. Ct. 2081, 2084 (1998) (emphasis

added). The Pennsylvania Supreme Court explicitly

acknowledged that very notion in this case. Chmiel. 738

A.2d at 422-23 ("[t}he purpose of the [attorney-client]

privilege is... to foster a confidence between attorney

and client that will lead to a trusting and open dialogue").

16

Thus, that court was clearly aware that the attorney-client

privilege does not exist so that defendants can feel tree to

provide their attorneys with false evidence. Nevertheless,

the effect of the state supreme court's decision in this case

results in an unprecedented expansion of the Sixth

Amendment right to effective assistance of counsel to

include a defendant’s right to lie to his attorney, to

potentially lie in court, and yet remain free from being

impeached by the attorney, even after attacking the

attorney's competence for failing to use the untruths as

part of the defense during trial. Such a rule serves neither

the “public interest’ nor the “administration of justice.” “To

the contrary, this Court has made it clear that penalizing

a defendant for testifying falsely at trial does not offend

the Constitution, and indeed) promotes the proper

administration of justice. United States v. Dunnigan, 507

U.S. 87, 96 (1993).

The prosecution's use of attorney Kennedy's

evidentiary hearing testimony to mmpeach Chmiel during

retrial did not violate the Sixth Amendment, and would

not create any type of constituuionally prohibited chilling

effect on attorney-client relations. “The petition for writ of

certioran should therefore be granted.

The Prosecution’s Impeachment Of Chmiel At

Retrial With Attorney Kennedy’s Evidentiary

Hearing Testimony, Which Was Comprised Of

Attorney-Client) Communications To Which

Chmiel Had Voluntarily Waived The Attorney-

Client Privilege, Did Not Violate, Nor Even

Implicate, Chmiel’s Fifth Amendment Privilege

Against Self-Incrimination

The Pennsylvania Supreme Court also held that the

prosecution's impeachment of Chmiel at retrial with

attorney Kennedy's evidentiary hearing tesumony violated

Chmiel’s Fifth Amendment privilege to remain free from

compelled self incrimination. Chomiel, 738 Ad at 424.

This ruling was likewise erroneous.

In pertinent part, the Fitth Amendment provides that,

“No person... shall be compelled in any Criminal case to

be a witness against himself... ." U.S. Const... Amend. V.

Here, Chmiel was not compelled to do anything.

Specifically, he was not compelled to provide his attorney

with multiple false stories concerning his whereabouts at

the time the murders occurred. He was likewise not

compelled to challenge his attorney’s competence for

failing to use those false stories to unlawfully concoct an

alibi defense for Chmiel at his first trial. Finally, he was

not compelled at his retrial to use the alibi defense that

attorney Kennedy had lawfully refused to present at the

first trial, especially since he was forewarned by the

prosecution that he would be subject to Impeachment with

his formerly privileged statements. Chmiel did all of these

things voluntarily. The voluntary nature of Chmiel’s

actions and disclosures demonstrates that the Fifth

Amendment, as applied to. the states through the

Fourteenth Amendment, is not in any way violated here.

18

See, e.g., Ohio Adult Parole Authority v. Woodard, 118 S.

Ct. 1244, 1252-53 (1998).

As a consequence of Chmiel’s voluntary actions,

attorney Kennedy was permitted under state law to reveal

once privileged — attorney-client communications in

responding to the frivolous allegations of incompetent

counsel. The state prosecutor was likewise permitted,

under Pennsylvania law, to impeach Chmiel at retrial with

that testimony. Chmiel, 738 A.2d at 415-20. When

Chmiel waived his attorney-client privilege to challenge

Kennedy’s competence, the once confidential nature of

the pertinent communications was waived for all times.

See, eg., Genentech, Inc. v. Untted States International

Trade Commission, 122 F.3d 1409, 1416-17 (Fed. Cir.

1997): see also Edna S. Epstein & Michael M. Martin, The

Attorney-Client Privilege and the Work-Product Doctrine,

76 (2d ed. 1988) ("Once an express or implicit waiver has

occurred, the privilege is generally treated as relinquished

for all purposes and in all circumstances thereafter’).

With that evidentiary privilege gone, there was no

longer anything unique or special about the relationship

between Chmiel and Kennedy as to those disclosed

communications. Kennedy was just like any other person

to whom Chmiel may have voluntarily disclosed

information. When Kennedy testified at Chmiel’s retrial

in that capacity, he did so just as any other witness would

have Amicus have found no legal authority stating that

4 criminal defendant’s Fifth Amendment right against

compelled — self-incrimination — Is violated when a

prosecution witness reveals in court unprivileged

communications of the defendant. The Pennsylvania

Supreme Court’s holding in this respect was therefore

7. Again, Kennedy did not personally testify at Chmicl’s retrial,

as he had passed away. A transcript of his evidentiary hearing

testimony was read for the jury. Chmiel, 738 A.2d at 423, n.11.

19

erroneous. The petition for writ of certiorari should be

granted.

20

CONCLUSION

For the foregoing reasons, amicus respectfully request

that this Court grant the petition for writ of certiorari.

Dated: December 13, 1999.

Respectfully submitted,

BILL LOCKYER, Attorney General

of the State of California

DAVID P. DRULINER

Chief Assistant Attorney General

CAROL WENDELIN POLLACK

Senior Assistant Attorney General

KEITH H. BORJON

a aaa oe Attorney General

Ass |

‘A. SCOTT avs WARD

Deputy Attorneys General

Counsel of Record

Counsel tor Amicus Curie

ASIhkert

LAL999U S0007