Non-unanimous acquittals and attorney-client privilege
May 21, 2022
This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the justices’ decision to prevent non-unanimous convictions in Louisiana also prohibits Puerto Rico from authorizing non-unanimous acquittals, and whether a law firm can protect under attorney-client privilege communications for which legal advice was a significant, but not primary, purpose.
After Ramos, criminal defendant asks justices to preserve non-unanimous acquittals in Puerto Rico
In Ramos v. Louisiana, the Supreme Court ruled that states could only convict defendants of serious offenses with a unanimous jury verdict. In Centeno v. Commonwealth of Puerto Rico, Nelson Daniel Centeno asks the justices now to decide whether Ramos prevents Puerto Rico from allowing non-unanimous acquittals. Since 1952, when Puerto Rico enacted its constitution, its bill of rights has provided that the votes of nine of twelve jurors sufficed for a verdict, whether to convict or acquit. After Ramos, the Supreme Court of Puerto Rico ruled that the case “overturned our constitutional clause.” As a result, the prosecution before Centeno’s trial requested an instruction to the jurors that they “must all agree and vote, unanimously, whether to find the defendant guilty or to find him not guilty.”
Centeno argues that Ramos only prevents Puerto Rico from authorizing non-unanimous convictions, not acquittals. The trial court and intermediate appellate court both agreed, ruling that Ramos was only about convictions. The Puerto Rico Supreme Court, however, disagreed, ruling that Ramos applied to both. In his petition, Centeno maintains that the Sixth Amendment only protects defendants against the government, not the prosecution. He also observes, as did two dissenting justices, that the Supreme Court of Oregon (the only state besides Louisiana that authorized non-unanimous convictions prior to Ramos) has ruled since Ramos that the decision does not prohibit non-unanimous acquittals.
Law firm asks justices to consider the scope of attorney-client privilege for dual-purpose documents
In In re Grand Jury, the petitioner (whose identity is redacted in the petition) is a law firm asking the justices to clarify the scope of attorney-client privilege when a communication with a client involves legal and non-legal advice. After the firm received a grand jury subpoena seeking documents related to a criminal investigation of its client, the firm produced over 1,700 records but withheld others under attorney-client privilege. Some of these communications included both the firm’s legal advice about planning for tax consequences of expatriation and non-legal advice about preparing tax returns.
The district court applied a primary-purpose test to these dual-purpose communications, shielding those documents made “for the primary purpose” of receiving or providing legal advice and requiring disclosure of those for which “the primary or predominate purpose was about the procedural aspects of the preparation” of tax returns. The U.S. Court of Appeals for the 9th Circuit affirmed, declining to adopt the approach in an opinion by then-Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit. In the D.C. Circuit, a dual-purpose communication may fall under attorney-client privilege so long as legal advice represents a significant purpose for the communication, even if not the primary purpose. In its petition, the firm also observes that the approaches of both the 9th and D.C. Circuits conflict with that of the U.S. Court of Appeals for the 7th Circuit, in which a dual-purpose communication is not privileged, even if legal advice represented the most significant purpose.
These and other petitions of the week are below:
In re Grand Jury
Issue: Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication.
Outdoor One Communications LLC v. Charter Township of Canton, Michigan
Issues: (1) Whether a speaker must first engage in self-censorship to have standing to attack the constitutionality of a prior restraint on its speech; and (2) whether a speaker lacks standing to challenge a facially content-based regulation of its speech if a court concludes the speaker receives “generous” treatment under the scheme.
Ferris v. Scism
Issues: (1) Whether the Fourth Amendment requires a police officer to wait until an armed suspect points the barrel of his handgun in the officer’s direction before the officer can deploy lethal force to protect himself and innocents in the area; (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in denying Detective Brett Ferris qualified immunity without even identifying what material facts defined the immunity questions; (3) whether the 2nd Circuit erred in deferring the qualified immunity questions to the “post-verdict” stage of the trial so that immunity would only be addressed in the event a jury issued a verdict against Ferris; and (4) whether the 2nd Circuit’s decision below disregarded the Supreme Court’s repeated holdings that qualified immunity is immunity from suit, not merely immunity from judgment, when it declined to define or decide the immunity questions despite a robust record containing undisputed facts.
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