Skip navigation

Nebraska v. Foster, NE, order, recorded confidential attorney, client conversations, 2015

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
Filed in Nuckolls District Court
*** EFILED ***
Case Number: D42CR140000010
Transaction ID: 0002688416
Filing Date: 08/14/2015 10:51:19 AM CDT




Case No. CR 14-10


DATE OF HEARING: August 4, 2015
DATE OF DECISION: August 14, 2015
Charles L. Byrd, Jr., Special Deputy Nuckolls County Attorney.
William P. Tangeman, Special Deputy Nuckolls County Attorney.
Benjamin H. Murray, Attorney for Defendant.
Jerry L. Foster, Defendant.
Vicky L. Johnson, District Judge, presided.
This matter came on for hearing on the Defendant’s Motion to Disqualify Counsel and
Motion to Seal and/or Suppress Evidence. Evidence was offered and received. Argument was had
and the matter was submitted to the Court for a decision. The Court took the matter under
The 414 hearing and jury trial are continued until further order of the Court.
NOW on this 14th day of August, 2015, this matter comes on for decision.
Under consideration is a Motion to Disqualify Counsel and Motion to Seal and/or Suppress
Evidence. The State of Nebraska is in possession of a number of pre-recorded phone calls between
the Defendant and his court-appointed counsel which are indisputably privileged. The Defendant
seeks to have the phone calls sealed, suppressed as evidence, and current counsel for the State and
all members of the Attorney General’s office disqualified from prosecuting the Defendant further.

Page 1 of 8

This motion under consideration involves an extremely unusual set of circumstances. The
Defendant is charged with Sexual Assault of a Child (Third Degree), a Class IIIA Felony, Neb. Rev.
Stat. §28-320.01(1&3) in Nuckolls County by Complaint filed in the County Court on December 8,
2014. He was arrested on December 11, 2014. The Nuckolls County Jail is inadequate to hold
prisoners, and as a consequence, he was housed in Webster County, Nebraska. The first hearing on
his case was held in Webster County on December 15, 2014, and the Defendant appeared without
counsel. The Nuckolls County Attorney, Mr. Timothy Schmidt, appeared by phone. The Defendant
asked for counsel. The Public Defender, Mr. Benjamin Murray, was appointed that same day.
On December 30, 2014, the day set for the next appearance in the County Court, the
Defendant appeared by “Jabber,” which this Court knows is an internet-based web camera. Mr.
Schmidt and Mr. Murray were in court in Nuckolls County. As a consequence, there was no
opportunity for the Defendant and his counsel to talk privately, except perhaps by phone call, as will
be discussed later. The Defendant waived his preliminary hearing, and the case was bound over to
the District Court.
The Information was filed on January 6, 2015. The arraignment was held the same day. The
Defendant appeared personally with Mr. Murray. The State was represented by Mr. Schmidt. A
Motion for Discovery was granted.
Mr. Schmidt subsequently became ill, and has not appeared in this case since. Acting County
Attorney Daniel Werner appeared on February 3, 2015, with Mr. Murray. The Defendant was
excused. An unopposed Motion for a Competency Evaluation filed by the Defendant was granted.
In the motion, Mr. Murray represents that the Defendant has been diagnosed, among other things,
with bipolar disorder and post traumatic stress disorder, and is on unknown medications.
On February 17, 2015, the Nebraska Attorney General’s office was appointed Deputy
Nuckolls County Attorneys in this case.
On April 7, 2015, Mr. Byrd, Mr. Tangeman, both from the Attorney General’s office, Mr.
Murray, and the Defendant appeared. Upon review of the court-ordered evaluation, the Defendant
was found to be competent by the Court.
On or about December 16, 2014, the Defendant was transferred to the Hall County
Department of Corrections. Upon entering the jail, the Defendant signed a receipt indicating that
he was given a copy of the Hall County Inmate Handbook.

Page 2 of 8

The Handbook indicates that phone calls may be recorded. (P. 29, emphasis supplied.) It
also indicates that prisoners have “the right to unrestricted and confidential access to the courts...and
the right to legal counsel of your choice by means of interviews and correspondence.” (P. 5). It also
indicates that personal video visitations are recorded and may be monitored. (P. 21). (This is in a
section regarding in-person visits.)
There is a sign next to the phone banks, indicating that phone calls are subject to monitoring
and recording.
Sgt. Rojewski from the Hall County Department of Corrections monitors and records inmate
phone calls and video visitation. His affidavit indicates that communications with counsel can be
blocked upon “proper request.”
Nowhere in the Handbook does it say that it is possible to block the monitoring and recording
of attorney client communications by the sheriff’s office. Nor is the process to do so discussed.
It does say, at P. 22: “[S]upervising staff will ensure that professional visits are kept confidential.”
[Emphasis supplied.] Nowhere on the sign located in the phone banks are there instructions for
blocking phone calls to attorneys.
On February 18, 2015, Mr. Byrd contacted the Hall County Department of Corrections to
request phone call and visitation recordings for the Defendant. Approximately two weeks later (early
March), a CD was received containing video and audio recordings of the Defendant’s conversations.
Upon review, Mr. Byrd determined that the Defendant had apparently placed a phone call
to the law office of Mr. Murray. This determination was made based upon the request of the
Defendant to speak to “Ben.” The Defendant was told that “Ben” was not in the office. Mr. Byrd
immediately stopped listening and verified that the phone call was to Mr. Murray’s office. He did
not listen to any more phone calls, nor did Mr. Tangeman, or anyone else in the Attorney General’s
office, to Mr. Byrd’s knowledge, to that phone number. Mr. Tangeman affirms that he never listened
to any calls himself.
In mid-April, 2015, or about six weeks after he became aware of the recorded confidential
communications, Mr. Byrd notified Hall County Department of Corrections that phone calls to Mr.
Murray’s office should be blocked from further recording or monitoring.
On June 3, 2015, a Certificate of Compliance with Discovery was filed with this Court,
indicating that Mr. Byrd had furnished a copy of the CD of phone calls to Mr. Murray on the
previous day. The copy was made by Mr. Byrd’s “office.” It is unclear precisely who made the

Page 3 of 8

There are approximately 59 phone calls recorded to Mr. Murray’s office, during which Mr.
Murray and the Defendant engaged in confidential attorney client communications. The
conversations span the dates of December 29, 2014, through March 27, 2015.
According to the affidavits in evidence, at the beginning of each recorded conversation is a
statement that the call is subject to monitoring and recording. Because Mr. Murray never answered
the phone call from the Defendant personally, he was unaware of this notice. His staff did not
inform him of the recorded message before passing the Defendant’s call through.
The Attorney General’s staff made one copy of the CD, which is the one that Mr. Byrd gave
to Mr. Murray. The CD that he was sent from the Hall County Department of Corrections is now
in the possession of the Court. The Court has not listened to any of the recordings.
The State acknowledges that the CD should be sealed and suppressed from use as evidence.
What remains for decision is whether Mr. Schmidt, Mr. Werner, Mr. Byrd, Mr. Tangeman
and the rest of the Attorney General’s office should be prohibited from prosecuting this action by
virtue of the fact that they were in possession, or constructive possession, of confidential attorney
client conversations.
The Court has reviewed the cases cited in oral argument, but believes that State v. Kinkennon,
275 Neb. 570 (2008) contains the most applicable case law. The Kinkennon decision involved an
associate attorney leaving private practice to work for the Hall County Attorney’s office. While in
private practice, her firm was involved in the defense of a person who was being prosecuted by the
attorney’s new employer. The defendant’s counsel asked the Hall County District Court to disqualify
the entire prosecutor’s office due to the presence of the new deputy prosecutor, who may have been
in possession of client attorney confidences. The District Court did not disqualify the other Hall
County prosecutors, because it was convinced sufficient shielding was in place to keep the client’s
secrets separate by secluding the new prosecutor from the case. The Supreme Court was asked to
overturn the decision by the District Court. It did not.
This Court will quote at length from this opinion.
However, the overwhelming majority of courts to have considered
this issue have rejected this type of per se rule [disqualification of an
entire office if one attorney has privileged information]. Instead, most
courts have adopted a less stringent rule, pursuant to which the trial
court evaluates the circumstances of a particular case and then
determines whether disqualification of the entire office is appropriate.
Under this approach, courts consider, among other things, whether the
Page 4 of 8

attorney divulged any confidential information to other prosecutors
or participated in some way in the prosecution of the defendant. The
prosecuting office need not be disqualified from prosecuting the
defendant if the attorney who had a prior relationship with the
defendant is effectively isolated from any participation or discussion
of matters concerning which the attorney is disqualified. If
impropriety is found, however, the court will require recusal of the
entire office.
We agree with the majority view and do not adopt a per se rule of
disqualification. We believe the ultimate goal of maintaining both
public and individual confidence in the integrity of our judicial
system can be served without resorting to such a broad and inflexible
rule. As declared by the Maryland Court of Appeals, "'[t]he
appearance of impropriety alone is "simply too slender a reed on
which to rest a disqualification order except in the rarest of cases."'"
[citation omitted.]
And we recently endorsed a more flexible rule by adopting the
Nebraska Rules of Professional Conduct. Rule 1.11(d), which
addresses conflicts of interest for current government officers and
employees, provides in relevant part that"[e]xcept as law may
otherwise expressly permit, a lawyer currently serving as a public
officer or employee: . . . (2) shall not: (I) participate in a matter in
which the lawyer participated personally and substantially while in
private practice or nongovernmental employment." [14 Neb. Ct. R. of
Prof. Cond. 1.11(d) (Rev. 2005.]
The official comment 2 to rule 1.11 explains that "[b]ecause of the
special problems raised by imputation within a government agency,
paragraph (d) does not impute the conflicts of a lawyer currently
serving as an officer or employee of the government to other
associated government officers or employees, although ordinarily it
will be prudent to screen such lawyers." This rule recognizes the
distinction between lawyers engaged in the private practice of law,
who have common financial interests, and lawyers in a prosecutor's
office, who have a public duty to seek justice, not profits.
The per se rule would result in the unnecessary disqualification of
prosecutors where the risk of a breach of confidentiality is slight, thus
needlessly interfering with the prosecutor's performance of his or her
constitutional and statutory duties. Furthermore, a per se rule would
unnecessarily limit mobility in the legal profession and inhibit the
Page 5 of 8

ability of prosecuting attorney's offices to hire the best possible
employees because of the potential for absolute disqualification in
certain instances.
We recognize that complete disqualification of a prosecutor's office
may be warranted in cases where the appearance of unfairness or
impropriety is so great that the public trust and confidence in our
judicial system simply could not be maintained otherwise. Such an
extreme case might exist, even where the State has done all in its
power to establish an effective screening procedure precluding the
individual lawyer's direct or indirect participation in the prosecution.
But when the disqualified attorney is effectively screened from any
participation in the prosecution of the defendant, the prosecutor's
office may, in general, proceed with the prosecution.
Whether the apparent conflict of interest justifies the disqualification
of other members of the office is a matter committed to the discretion
of the trial court. In exercising that discretion, the court should
consider all of the facts and circumstances and determine whether the
prosecutorial function could be carried out impartially and without
breaching any of the privileged communications. A flexible, factspecific analysis will enable a trial court to protect a criminal
defendant from the due process concerns at issue, while at the same
time avoiding unnecessary disqualifications of government attorneys.
Whether the State has established an effective screening procedure
will obviously be part of that analysis.
[Emphasis supplied.] At 576-578.
The Court believes the statements of Mr. Tangeman and Mr. Byrd that they have not listened
to any confidential client communication. It understands that there is an argument that lacking such
communications, they have no conflict of interest requiring them to be disqualified. However, that
does not fix the appearance of unfairness or impropriety. The notion that a prosecutor has in hand
59 recorded conversations between the Defendant and his lawyer has the blatant appearance of
It is also clear that the recorded preface to phone calls is not a complete recitation of the truth.
Phone calls from the jail ARE recorded, they are not simply subject to monitoring the recording.
This Court is unaware of the following: the extent to which the issue of the confidential client
communication was discussed in office, what efforts were undertaken to safeguard and screen the
CD from the hands and view of other employees (we know at a minimum that someone made a copy
of it for Mr. Murray). The Court is also extremely bothered by the fact that it took about six weeks
Page 6 of 8

for Mr. Byrd to advise the Hall County Department of Corrections office to “block” the phone calls
to Mr. Murray and three months to advise Mr. Murray of the problem.
The Inmate Handbook does not reveal that it is even possible to block a phone number or the
process for doing the same; it simply iterates that staff will ensure confidentiality between a
defendant and his counsel. Further, the Defendant’s counsel had sufficient concerns about the
Defendant’s ability to understand that a competency evaluation was undertaken without objection
from the County Attorney. While he may be competent, he is demonstrably less able than many
defendants to converse and understand. Further, unlike the other cases cited by the State, this is not
a case where the Defendant and his attorney were aware that they were being recorded; to the
contrary, it is obvious that this substantial breach of privilege came as a complete surprise to them.
In regard to the issue of unfairness, the Court is concerned that this breach of client
confidentiality was not immediately revealed to Mr. Murray so that he could actively block his phone
calls with his client from recording and monitoring. In fact, it took approximately three months for
this breach of client confidentiality to be revealed to defense counsel. Phone calls were made
between the Defendant and his lawyer after the time that the State became aware that the phone calls
were being recorded. The Court amends its statements in open court accordingly. It cannot condone
a delay in reporting this information to Mr. Murray, particularly given that communications made
between Mr. Murray and his client continued for approximately one month after the Attorney
General’s office became aware of the breach. It also recognizes that there is an argument that Mr.
Murray’s support staff should have communicated the recorded message to Mr. Murray.
The Court finds that the actions, more specifically, non-actions, of Mr. Byrd and Mr.
Tangeman in not immediately revealing to Mr. Murray the presence of the recordings give an
appearance of unfairness that is so great that it disqualifies them from further prosecution. It is
simply not comprehensible to this Court why the State sat on this as long as it did. The Court does
not go so far as to call it improper. Mr. Byrd and Mr. Tangeman of the Nebraska Attorney General’s
office are disqualified from further handling of this case. Sgt. Rojewski and any members of the Hall
County Department of Correction’s department are ordered to have no involvement in this case.
Mr. Werner and Mr. Schmidt, although not involved in the CD fiasco, are disqualified because they
were counsel of record for the State during this period of recordation and non-disclosure. They were
in no way culpable. Any investigators involved in the case, and the support staff personnel who
made the copy are prohibited from further involvement in this case. These individuals shall be
shielded from any further involvement in this case. The balance of the Nebraska Attorney General’s
office is not disqualified so long as the specific counsel assigned to prosecute were unaware of the
non-disclosure of the problematic client communications to Mr. Murray. If no such assignment can
be made, the Court shall be advised within ten judicial days of the date of entry of this order so it can
appoint appropriate replacement counsel.
The Court is aware that this Defendant is facing a second series of felony charges in the
County Court of Clay County, Case No. CR15-51. This case has not yet been bound over to District
Court. The Attorney General’s office is participating. A copy of this order shall be sent to Mr.
Page 7 of 8

Foster’s counsel, Ms. Michele Oldham, by the Clerk, and Mr. Griess, the Clay County Attorney. A
certified copy shall be sent to the County Court of Clay County, Nebraska.
Vicky L. Johnson
District Judge

Page 8 of 8

I, the undersigned, certify that on August 14, 2015
, I served a copy of the foregoing
document upon the following persons at the addresses given, by mailing by United States Mail,
postage prepaid, or via E-mail:
Benjamin H Murray


August 14, 2015

Charles L Byrd Jr