James Mallory v. Honorable Susan Schultz-Gibson, Judge, Jefferson Circuit Court and Commonwealth of Kentucky

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: SEPTEMBER 24, 2020
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0243-OA
JAMES MALLORY PETITIONER
V. IN THE SUPREME COURT
HONORABLE SUSAN SCHULTZ-GIBSON, RESPONDENT
JUDGE, JEFFERSON CIRCUIT COURT
AND
COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
DENYING WRITS OF PROHIBITION AND MANDAMUS
James Mallory was indicted by a Jefferson County Grand Jury in 2012
on charges of murder and first-degree burglary; and the Commonwealth filed a
notice of aggravating circumstances, allowing for enhanced penalties if
convicted, including the death penalty. He has remained in the custody of the
jail operated by Louisville Metro Department of Corrections as he awaits trial
on these charges. He has applied to this Court for writs disqualifying the
Jefferson County Commonwealth’s Attorney from prosecuting him and Judge
Susan Schultz-Gibson from presiding in his case. For the reasons explained
below, we decline to issue the requested writs.
1
I. FACTS AND PROCEDURAL BACKGROUND
Several attorneys have represented Mallory during the pendency of the
indictment. His current counsel were appointed in November 2018. Two
months after appointment, current counsel learned that jail calls made by
Mallory to them and to the defense investigator had been inadvertently
recorded by the jail because current counsel failed to register with the third-
party contractor providing a private-line telephone service for confidential
attorney-client communications.
As early as November 2017, an intern at the Jefferson County
Commonwealth’s Attorney’s Office was assigned to listen to the recorded calls
Mallory had made while incarcerated. That office was unaware at the time that
the recordings in their possession contained some potentially privileged
communications. It was not until the intern had listened to most of the calls
that the office became aware of the recorded communications between Mallory
and his counsel and investigator. Once aware of the privileged calls, the
assigned prosecutor alerted defense counsel and screened the intern from the
case and the attorney associated with the case.
Contending that the Commonwealth’s possession of recordings of
privileged communications violated his Sixth Amendment right to counsel and
constituted gross prosecutorial misconduct, Mallory moved the trial court to
dismiss the indictment or to disqualify the Commonwealth’s Attorney’s Office
and to exclude the death penalty as a sentencing option. The trial court
conducted a hearing on the motion followed by an in-camera review of the
2
recordings and notes taken by the intern. The trial court issued findings of
fact, conclusions of law, and an order denying the requested relief.
The trial court found that the jail’s phone system automatically inserted
two prerecorded warnings in each call. The first warning heard by the caller
states:
This is not a protected or privileged phone call. This call is subject to
recording and monitoring. You may hear silence during the acceptance
of your call. Please continue to hold.
After the call goes through and the recipient picks up, both parties hear the
following message:
Hello. This is a prepaid collect call from (inmate says his/her name), an
inmate at Louisville Metro Hall of Justice. This call is subject to
recording and monitoring and your location information may be collected
and used by law enforcement personnel. To accept charges, press “1.” To
refuse charges, press “2.”
The trial court found these warnings audible on all recordings reviewed in
camera.
The trial court found that the intern accessed three recorded
conversations between Mallory and counsel on November 24, 28, and 30, 2018.
The trial court reviewed in camera the content of those calls and any intern
notes. The trial court also reviewed in camera multiple calls between Mallory
and the investigator over the time span of June 11, 2018, to January 6, 2019.
The trial court ruled that because Mallory was twice notified at the outset
that each of the calls was recorded and subject to monitoring he waived any
claims that the communications were privileged. Further, the trial court
concluded that no prejudice resulted, even if the privilege was not waived. The
trial court further found the Commonwealth’s Attorney’s Office had taken no
3
affirmative action to interfere with the attorney-client relationship, so
disqualification of the office was unnecessary.
Mallory argues a writ disqualifying the Commonwealth’s Attorney is
necessary to prevent irreparable harm because these intercepted privileged
communications reveal trial strategy resulting in actual prejudice. The
Commonwealth’s Attorney responds that Mallory waived his privilege, no actual
prejudice has resulted, and that a writ is not the appropriate remedy. Mallory
further requests a writ disqualifying Judge Gibson because the information she
learned during the in-camera review of the recordings and the intern’s notes
precludes her from presiding over his trial with impartially.
II. ANALYSIS
A. Writ to Disqualify Commonwealth’s Attorney is Declined.
1. A review of Mallory’s claim of error is necessary in the interests
of judicial administration.
Writs of prohibition are extraordinary in nature and should only be
issued when “absolutely necessary.”1
A writ of prohibition may be granted upon a showing that (1) the
lower court is proceeding or is about to proceed outside of its
jurisdiction and there is no remedy through an application to an
intermediate court; or (2) that the lower court is acting or is about
to act erroneously, although within its jurisdiction, and there exists
no adequate remedy by appeal or otherwise and great injustice and
irreparable injury will result if the petition is not granted.2
1 Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008).
2 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
4
Further, a writ of prohibition may be necessary in exceptional circumstances to
prevent irreparable harm to the administration of justice.3
Mallory acknowledges that the trial court acted within its jurisdiction but
argues that it did so erroneously. A writ of prohibition will only be an
appropriate remedy if there is no “otherwise adequate remedy” to correct
irreparable harm, or such exceptional circumstances exist to justify the remedy
in the interest of administering justice. A trial court’s failure to disqualify the
prosecuting attorney may be reviewed for an abuse of discretion on direct
appeal after the trial.4 Because Mallory has other adequate remedies available,
a writ of prohibition would ordinarily be denied.5
In certain rare circumstances, although an “otherwise adequate remedy”
exists, a writ of prohibition may be issued to prevent extraordinary harm to the
administration of justice.6 For example, in Hoskins v. Maricle, the trial court’s
potential error in rejecting Hoskins’s plea agreements could be remedied by
3 Id. at 20.
4 Ward v. Commonwealth, 587 S.W.3d 312, 319 (Ky. 2019).
5 The Court notes the distinguishing facts in this case that make an original
action in this court appropriate. Under Ky. Const. 110 (2)(a) “The Supreme Court shall
have appellate jurisdiction only, except it shall have the power to issue all writs
necessary in aid of its appellate jurisdiction, or the complete determination of any
cause, or as may be required to exercise control of the Court of Justice.” Additionally,
under Ky. Const. 110 (2)(b) “Appeals from a judgment of the Circuit Court imposing a
sentence of death or life imprisonment or imprisonment for twenty years or more shall
be taken directly to the Supreme Court. In all other cases, criminal and civil, the
Supreme Court shall exercise appellate jurisdiction as provided by its rules.” Mallory
is potentially facing the death penalty. If he is convicted, and appeals, this Court
would review any error in the trial court’s decision to deny his motion. Therefore, the
circumstances of this case are unique and should be considered in deciding to review
for potential error. See Hoskins, 150 S.W.3d at 18–20.
6 Id. at 19–20.
5
appeal, but the Hoskins court proceeded to review the merits of Hoskins’s
claims of error because if there was error in the trial court’s ruling, Hoskins
would be unnecessarily subjected to a second trial for double murder with
possible sentences of death and a lengthy appeal.7 The Court concluded that
“such would constitute a miscarriage of justice and disrupt the orderly
administration of justice.”8
We will consider Mallory’s claim of error because his circumstances are
like those in Hoskins: Mallory faces potential capital punishment, the case has
been ongoing for eight years, and if the trial court erred in failing to disqualify
the Commonwealth’s Attorney, a second trial and subsequent appeal would
likely occur.
2. The trial court did not err in denying Mallory’s motion to
disqualify the Commonwealth’s Attorney’s Office.
We find that the trial court did not abuse its discretion in denying
Mallory’s disqualification motion. The trial court may disqualify any
prosecuting attorney “upon a showing of actual prejudice.”9 And on appeal,
the lower court’s decision is reviewed for abuse of discretion and will be upheld
unless arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.10
The current circumstances are like those in Ward v. Commonwealth
where we found no per se rule of prejudice to a defendant in a case in which
7 Id. at 20.
8 Id.
9 Ward, 587 S.W.3d at 318–19.
10 Id. at 319.
6
staff in the Commonwealth’s Attorney’s Office reviewed recordings of privileged
attorney-client phone calls made by the defendant from the jail.11 The
defendant must show actual prejudice resulting from an affirmative action by
the prosecutor to obtain the information or the dissemination of trial strategy.12
Significantly, inadvertent disclosures of attorney-client conversations that do
not reveal trial strategy result in no actual prejudice to the defendant.13
Therefore, the Court upheld the trial court’s decision to deny the defendant’s
motion to disqualify the Commonwealth’s Attorney’s Office.14
Additionally, when remedial actions are taken after the disclosures are
made, the risk of actual prejudice to the defendant is diminished. In Ward,
even though the rest of the office was not disqualified, the court recommended
that the attorney who actually heard a portion of the privileged calls should
have recused himself from the case.15 And Calhoun v. Commonwealth held that
when the conflicted party is timely and properly screened from the case, it was
not an abuse of discretion to allow the rest of the office to continue prosecuting
the case.16 As such, it was not an abuse of discretion for the trial court to deny
disqualification of the entire Commonwealth’s Attorney’s Office.
Here, the trial court conducted an in camera review of the potentially
privileged phone calls and the notes taken from the phone calls. The trial court
11 Id. at 325.
12 Id.
13 Id.
14 Id.
15 Id. at 326.
16 492 S.W.3d 132, 138 (Ky. 2016).
7
found that the only relevant information the calls revealed was that the defense
was working with an investigator. And after the prosecuting attorney became
aware that these potentially privileged communications had been overheard,
the intern who had listened to the phone calls was screened from everyone else
in the office working on the case.
The trial court further found the defendant had waived his attorney-
client privilege for the phone calls to defense counsel and the investigator. The
court ruled that because the Defendant had received two automated voice
notifications that the calls were being monitored and recorded before the
conversation began, the communications were not confidential. Kentucky Rule
of Evidence (KRE) 503 states that the attorney-client privilege applies to
confidential communications made to facilitate legal services between the client
and the lawyer, or representative of the lawyer. Importantly, the privilege only
applies to “confidential communications,” and the burden is on the privilege-
claiming party to show the communication is protected.17 The defendant did
not present any evidence to rebut the effectiveness of the dual warnings
preceding each phone call to the effect that the calls were monitored and
recorded. The trial court’s determination that the claim of privilege had been
waived was not an abuse of discretion.
Additionally, the trial court found—in addition to her finding of waiver—
no prejudice resulted from the Commonwealth’s Attorney’s Office hearing
17 Tabor v. Commonwealth, 625 S.W.2d 571, 572 (1981) (“Four fundamental
conditions are recognized as necessary to the establishment of a privilege against the
disclosure of communications [including that] the communications must originate in a
confidence that they will not be disclosed . . . . ”) (citing St. Luke Hospital., Inc. v.
Kopowski, 160 S.W.3d 771, 775 (Ky. 2005)).
8
Mallory’s conversations with Defense counsel because no trial strategy had
been revealed. As discussed in Ward, prejudice may arise when the
government improperly obtains information concerning trial strategy because it
results in a violation of the defendant’s Sixth Amendment right to counsel.18
But for such a violation to occur, the prosecutor must take some affirmative
action to interfere with the attorney-client relationship.19
In the current matter, the information was obtained inadvertently
through defense counsel’s failure to register for the secure line. Importantly,
the trial court found no evidence that trial strategy was revealed. While the
Commonwealth’s knowledge that the defense has hired an investigator reveals
trial preparation, that knowledge did not provide any insight into trial strategy.
The trial court found that the phone calls contained no discussion of witnesses,
defense strategy, testimony, or anything that could be used to the detriment of
the defendant at trial. Additionally, the intern who listened to the phone calls
was screened from the case after it was realized the communications were
privileged. This further diminished the risk that privileged information would
continue to be disseminated and that prejudice would result.20 So, like in
Ward, it was not an abuse of discretion for the trial court to deny the motion to
disqualify the Commonwealth Attorney’s Office as no actual prejudice has been
shown.
18 Ward, 587 S.W.3d at 325.
19 Id. at 323.
20 Calhoun, 492 S.W.3d at 138.
9
B. Writ to Disqualify the Trial Judge is Declined.
Mallory requests a writ to disqualify Judge Gibson because she reviewed
the potentially privileged phone calls and notes in question. We decline to
issue this writ.
Recusal motions may be made under KRS 26A.020.21 A defendant may
file, either one or both, a motion with the trial judge or an affidavit with the
circuit clerk for the Chief Justice to review and determine if disqualification of
the regular judge is necessary. Mallory has followed neither process, so an
otherwise adequate remedy exists in the law.
III. CONCLUSION
For these reasons, Mallory’s application for writs disqualifying the
Jefferson County Commonwealth’s Attorney from prosecuting him and Judge
Susan Schultz-Gibson from presiding over his case is denied.
All sitting. All concur.
COUNSEL FOR PETITIONER:
Eric G. Eckes
Pinales Stachler Young & Burre Co., LPA
Gregory Edward James Coulson
Coulson Law Offices, PLLC
Honorable Susan Schultz-Gibson, Judge
Jefferson County Circuit Court
21 Our Supreme Court has held KRS 26A.020 to be an unconstitutional
“encroachment by the legislature on the power of the judiciary to make rules.” Foster
v. Overstreet, 905 S.W.2d 504, 506 (Ky. 1995). But because it is a “‘statutorily
acceptable’ substitute for current judicially mandated procedures[,]” the Court “out of
deference and respect” extended comity to the legislature. Id. at 507.
10
COUNSEL FOR REAL PARTY IN INTEREST, COMMONWEALTH OF
KENTUCKY:
Daniel Jay Cameron
Attorney General of Kentucky
Madison Ann Shoffner
Assistant Attorney General
Jeanne Deborah Anderson
Special Assistant Attorney General
11