Can’t Keep Her Outta the Courtroom! Sandra Day Authors 1st Cir. Opinion

[WSJ_law_blog]

In addition to her post-retirement leisure activities — namely, golf and video games — turns out that retired Justice Sandra Day O’Connor does a bit of guest judging from time to time.

Back in 2006, she made a star-turn at the Second Circuit where, among other issues, she passed judgment on an attorney’s fee issue and a bankruptcy case. Now the justice-turned-part-time-appellate-judge is in Boston. Recently, as part of a First Circuit panel, she heard an evidentiary appeal in the three-year old federal money-laundering case against Lawrence P. Novak. Lo and behold, she went on to write the opinion as well.

In 2005, the U.S. Attorney in Massachusetts brought charges against Novak, a Republican State Committee member and private attorney, with attempting to launder money for a client accused of dealing drugs. The charges against Novak stem from police recordings of telephone conversations he had with a client, Scott Holyoke, who was being held in the Barnstable County Jail on charges of meth trafficking. State Police recorded those conversations, and government officials then approached Holyoke and asked him to cooperate in an investigation of Novak. Last year a federal judge disqualified the evidence on the grounds that the initial wiretapping of Holyoke and Novak was obtained illegally. (Prosecutors allege that in those conversations Novak agreed to launder drug money and keep $60,000 for himself.)

O’Connor overturned a lower court decision that excluded that key evidence, allowing the case against Novak to go forward. Here’s the report from the Boston Globe. In her decision, O’Connor questioned the behavior of the police in obtaining the evidence in wiretapping a conversation between Novak and the accused drug dealer.

She said that recording attorney-client calls appears to violate state regulations and is also questionable under the US Constitution’s guarantee of a right to counsel. However, O’Connor ruled that since Novak’s client had been informed about and consented to the recording, the Fourth Amendment did not apply. The Globe notes that, while O’Connor’s ruling allows the prosecution to go forward, it also appears to open the door to another appeal by Novak on Sixth Amendment grounds. Maybe, after all, this isn’t the last Justice O’Connor has seen of the case!

Photo: AP