Judge rules subpoena over warrant

Kim Smith

Wednesday, May 9, 2001 | 10:01 a.m.

A legal victory was won Tuesday by local defense attorneys who had worried that the right of defendants to have priviledged conversations with their attorneys was in danger.

District Judge Mark Gibbons ruled that prosecutors should have issued a subpoena to obtain documents from a local attorney rather than seeking a search warrant.

Gibbons said that had Deputy District Attorney Roger Cram issued a subpoena in the Melodi Ann Leavitt case, her attorney would have had the opportunity to come into court to ask for it to be quashed.

Instead, Gibbons said, when police came knocking on Gary Segal's door, he had no option but to give them the documents prosecutors sought.

According to court records, Leavitt is accused of stealing documents from her former employer, and prosecutors learned the documents were at Segal's office.

When Segal refused to hand the documents over, the district attorney's office asked District Judge Valorie Vega sign a search warrant, and the documents were seized.

The prosecutor's actions and those of Vega outraged the American Civil Liberties Union and attorneys with the National Association of Criminal Defense Lawyers and Nevada Attorneys for Criminal Justice.

The attorneys argued in briefs and orally Tuesday that prosecutors violated the attorney-client priviledge that Leavitt is afforded under the U.S. Constitution. They also said that the prosecutors went too far when they asked for Segal to be removed from the case so he could testify at Leavitt's trial.

Cram said he opted to seek out the search warrant because defense attorneys have destroyed evidence in the past upon learning of subpoenas.

He pointed out that the police and prosecutor who collected the documents from Segal didn't enter his office so there was no opportunity for them to see priviledged information pertaining to other clients. They stayed in his lobby while Segal retrieved the documents himself.

JoNell Thomas, who spoke on behalf of the ACLU and the Nevada Attorneys for Criminal Justice, said she worried about the precedent the DA's office was setting.

Despite the fact there is plenty of case law and law review articles that clearly state prosecutors can't invade the sanctity of a defense attorney's office, Clark County's prosecutors did it anyway, Thomas said.

Cal Potter, who also represents Leavitt, said the evidence seized by the prosecutors ought to be thrown out of court and her case dismissed. The actions of the prosecutors was "outrageous," he said.

In addition to saying a subpoena should have been sought, Gibbons denied Cram's motion to recuse Segal from the case. He also denied the motion to dismiss the case, but said Segal can try to have the documents tossed out of court.

Gibbons also told Cram he is not to call Segal to testify.