Is cellphone given by Aaron Hernandez to his lawyers privileged? Top state court is dubious
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If a client hands his cellphone over to his lawyer while seeking legal advice, is it privileged?
That is a question that must be answered by the Supreme Judicial Court of Massachusetts concerning former New England Patriots star Aaron Hernandez.
Already convicted of an unrelated murder and serving a life term, Hernandez is charged in a double homicide case with murdering two men in a drive-by shooting after a dispute at a Boston nightclub in 2012. On Tuesday, as the state’s top court heard arguments, at least two justices appeared dubious that a defendant’s cellphone should be protected because it is in the possession of his legal counsel, according to the Boston Globe and the Boston Herald.
Chief Justice Ralph Gants wondered how turning over a cellphone to one’s lawyer differed from simply hiding it in a coal mine: “What’s the difference between keeping it in your office and keeping it in that coal mine, if it has the same result of keeping it from being used at trial?” he asked.
He and Justice Robert Cordy also expressed concern about a standard that would allow a defendant to avoid producing potential evidence simply because it has been handed off to a lawyer.
“We’re talking about getting your computer to your lawyer fast if you’ve been committing crimes on it,” said Cordy.
However, attorney James Sultan, who represents Hernandez, said a state law protects such evidence from discovery, so it should be up to Massachusetts lawmakers to determine whether any change is needed.
Prosecutors say the cellphone may provide evidence that Hernandez was involving in another shooting, in Florida, in 2013 that was not fatal, in an alleged act of witness intimidation concerning the two Boston slayings.
No trial date has yet been set in the Suffolk Superior Court criminal case.
Related coverage:
ABAJournal.com: “Ropes & Gray must give Aaron Hernandez’s cellphone to new lawyers, judge rules”
