# Amicus Curiae Brief — Pennsylvania v. Chmiel

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0393%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1131

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0393%3A2. Public record. Not legal advice.