Sunday, March 19, 2006

Case o' The Week: Ninth Rejects Marital Privilege for Lawyer-Wife, Griffin

In an interlocutory appeal from the highly-publicized Aryan Brotherhood case, the Ninth finds jurisdiction to consider a claim of marital privilege – then finds the privilege doesn’t prevent disclosure. United States v. Robert Lee Griffin, __ F.3d. __, Slip. Op. 2729 (Mar. 16, 2006), available here. (Tyler Bingham, left, is a defendant in the first round of trials that is currently underway).

Players: Judge (W.) Fletcher writes for the panel.

Facts: Griffin is charged with RICO conspiracy and murder, in relation to the Aryan Brotherhood. Slip. Op. at 2732. Officers searched the residence of Griffin’s wife, who is also his attorney. Id. at 2732-33. They recovered letters Griffin wrote to her from prison; letters marked “Confidential” and addressed to his wife as “Attorney at Law.” A special master appointed to review the letters redacted attorney-client and work-product materials. Id. at 2733. Before the redacted letters were released to the government, Griffin objected based on the marital communications privilege. Id. The motion was denied, and an interlocutory appeal filed.

Issue(s): 1. Interlocutory Appeal: Does the Ninth have jurisdiction over this interlocutory appeal? 2. Marital Privilege: Does the marital privilege protect “against disclosure of recordings or documents containing confidential marital communications to an adverse party during an investigation, whether or not those recordings or documents are eventually introduced into evidence?” Id. at 2739.

Held: 1. Interlocutory Appeal: “[W]e hold that the order is immediately appealable under either the collateral order doctrine or the Perlman rule.” Id. at 2734. 2. Marital Privilege: “We will assume, without deciding . . . that a recording or document containing a confidential marital communication is protected from disclosure to an adverse party during an investigation. Nevertheless, we hold in the circumstances of this case that Griffin cannot claim the privilege.” Id. at 2379. Because Griffin sent the letters from prison, and authorities can read prison letters, no marital privilege survives. Id. at 2740.

Of Note: Unless your spouse is your client, the marital privilege discussion is of little interest. The Ninth dodges the issue of whether the privilege extends to documents given to third parties. Id. at 2379. Griffin is a case worth reading, however, for its clear description of two types of interlocutory appeal: the collateral order doctrine and the Perlman rule. Id. at 2734. In Cohen, the Supreme Court set forth three factors that go into the collateral order analysis – the Griffin decision works through these factors in detail. Id. at 2734. Interlocutory appeal is also possible under the Perlman rule. Id. at 2736. That rule states that a “discovery order directed at a disinterested third-party custodian of privileged documents is immediately appealable because the third party, presumably lacking a sufficient stake in the proceeding, would most likely produce the documents rather than submit to a contempt citation.” Id. at 2737.

How to Use: Griffin will be a lead Ninth Circuit case for interlocutory appeals. Another lead case – cited in Griffin – is United States v. Austin, 416 F.3d 1016, 1020 (9th Cir. 2005). Austin is a disappointing case that refuses interlocutory appeal for joint defense agreements. See id. at 1021. Joint defense agreements – and – specifically, Henke JDAs – present huge, unresolved issues in this Circuit. These issues elude appellate review because they arise in high-exposure cases that frequently resolve in (appellate-waiver) deals. See, e.g., United States v. Stepney, 246 F.Supp.2d 1069 (N.D. Cal. 2003). The defense bar needs to figure-out how to get the tough issues of Henke JDAs up before the Ninth.

For Further Reading: Griffin is a death-eligible defendant in a forty-defendant indictment. See USAO press release, here. He is alleged to have been one of the founding members of the California Commission of the Aryan Brotherhood. Id. The first round of this high-stakes, high-profile case is currently underway in Los Angeles. See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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