E.D.Mich.: USAO taint team rejected in federal death penalty case; a master will be appointed

In a federal death case, the court adopts the Sixth Circuit’s rejection of a USAO’s taint team handling and reviewing prison phone calls. United States v. Castro, 2020 U.S. Dist. LEXIS 7435 (E.D. Mich. Jan. 16, 2020):

III. The Court rejects the Government’s proposal to utilize a U.S. Attorney “Filter Team” to protect attorney-client information with regard to each defendant’s prison calls. Government’s Response ECF #51, PgID 786, c.37, c.38.

A recent decision of the United States Court of Appeals for the Fourth Circuit, In re: Search Warrant Issued June 13, 2019, 942 F.3d. 159, 173-83 (4th Cir. 2019) sets forth that Court’s concern about using Government filter teams, citing with approval the Sixth Circuit decision in In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006), which had held:

Taint teams present inevitable, and reasonably foreseeable, risks to privilege, for they have been implicated in the past in leaks of confidential information to prosecutors. That is to say, the government taint team may have an interest in preserving privilege, but it also possesses a conflicting interest in pursuing the investigation, and, human nature being what it is, occasionally some taint-team attorneys will make mistakes or violate their ethical obligations. It is thus logical to suppose that taint teams pose a serious risk to holders of privilege and this supposition is substantiated by past experience.

The Sixth Circuit had reversed the District Court’s approval of a “taint team,” and in remanding, mandated that the District Court appoint a Special Master to deal with the privilege issue. Id. at 524. This Court adopts the Sixth Circuit’s holding in, 454 F.3d at 523, and will appoint a Special Master after conferring with the parties.

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