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The right, not the ability

Comedian Ron White has a crowd-pleasing bit about his arrest for drunken behavior at a New York bar, and his conversation during that event with the police. Alcohol had loosened his tongue, and he baited them, playing the smartass. As he recalled, “I knew I had the right to keep silent. I had the right. I just didn’t have the ability.”

Now federal prosecutors are jumping into the ability of people to maintain their rights, and it should chill anyone interested in preserving their rights should they ever have a run-in with the law.

One of our well-known rights, as anyone who has watched a police show in the last generation well knows, is the right to be represented by an attorney, to the point that one will be appointed and paid by the state if one cannot otherwise be afforded. The idea is that people charged with a crime ought to have some support and counsel on which they can rely and in whom they can confide, so they aren’t simply railroaded by overmatching expertise. That is why attorney-client confidentiality is so strictly protected in legal proceedings.

Or at least it has been. But suppose you’re in a legal jam and you want the advice of a lawyer. How candid will you be with that lawyer – and, as a result, how effective can he be – if you knew that everything you said might wind up in the hands of the prosecutors? That pretty much wipes out your right to legal help, doesn’t it? Under those conditions, you’d probably be as well off representing yourself. (Which – don’t get us wrong – is poorly.)

Can’t happen because of the attorney-client privilege, you say? Guess again.

The Eugene Register Guard reports about Roseburg attorney David Terry, apparently the lawyer for several people who have been either suspected or charged with drug offenses. On September 13, the RG says, “More than a dozen [federal] agents with a search warrant approved by a federal magistrate judge walked into the office of David Terry just after 7 a.m. and seized financial, property, business, travel and personal records of 17 people. Terry, a lawyer for 27 years, is not charged with any crime. However, he is obviously the unnamed ‘Attorney A’ in a 196-page federal indictment issued Wednesday that named 12 men allegedly involved in an international conspiracy to smuggle marijuana and cocaine, grow marijuana and make methamphetamine.”

Terry, who has been an attorney more than 30 years and was a prosecutor for Douglas and Union counties, told the Roseburg News Review that the feds apparently think he’s involved in laundering money for his clients, several of whom are accused of illegal drug sales and transfers. The investigation and any indictment, by the way, come not out of Oregon-based agencies, but out of the U.S. Attorney’s office and a grand jury at Boise. (The story is told at length in the linked News Review piece.)

The News-Review added, “He said he believes that at least a portion of the information collected by the government against him came from his former law office partner, who was fired and later sent to prison for trading legal services for sex with an underage client in Coos County. Terry said he wasn’t sure whether he would be indicted. ‘I have no idea. If they are going to take evidence from perjured convicts, you never know,’ he said.”

Running back through the history of drug cases, the list of disreputable and – to say the least – unreliable – people whose stories are bought (and often paid for) by supposedly savvy professionals in the pursuit of drug cases is absolutely astounding. We’re not talking about a handful of such cases, but of boatloads of them, all over the country and notably in the Northwest.

We don’t mean here to prejudge entirely – obviously, we haven’t all the facts. But we are talking here about a long-established, older professional, long ensconced in a smallish and modest town (the words “pretentious” and “Roseburg” do not go together), apparently respected by peers and with an apparently unblotched history in law enforcement. If he actually did what he apparently is accused of, Terry would be one of the very oddest drug kingpins of all time.

You think this couldn’t happen to you? Guess again.

So the thin line that protects us all from the arbitrary or wrongful use of official power gets thinner.

FOLLOW NOTE: In 2000, Terry was one of the attorneys who worked in Oregon v. Jerry Fleetwood, a criminal drug case case that went to the Oregon Supreme Court; Terry was working with Oregon Criminal Defense Lawyers Association attorney David E. Groom of Salem, filing a brief for amicus curiae. The appellate case turned on the legal requirements needed for using evidence obtained through use of a body wire. The court held that a court order was required in such a case. The prosecution’s attorney roster in that case includes some familiar names: “Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the briefs were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Janie M. Burcart, Assistant Attorney General.”

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