Court Update from San Diego in Case of Lawyer Jessica McElfresh
Court update from the San Diego hearing in the Jessica McElfresh case, which took place on July 7, 2017 in Department 36 on the third floor of the Main Courthouse located at 220 West Broadway, before the Honorable Laura Halgren.
BACKGROUND
Jessica McElfresh is a well-known San Diego lawyer who has practiced cannabis law for years. She is facing several cannabis-related felony charges, filed by Jorge Del Portillo of the San Diego County District Attorney’s Office after Ms. McElfresh helped secure a tremendous appellate victory in an asset forfeiture case unsuccessfully prosecuted by the same Jorge Del Portillo of the San Diego County District Attorney’s Office. At issue was whether legal documents and digital data seized from attorney McElfresh’s home and office pursuant to the search warrant were protected under the attorney-client privilege.
TAKEAWAY
The good news is that Judge Halgren will not rely on the federal prohibition on cannabis in deciding claims of privilege, contrary to the prosecution’s position that the federal prohibition on cannabis means that the crime-fraud exception controls. Judge Halgren stated that no further argument is needed on the federal prohibition, as the search warrant was based on purported violations of state law, not federal law, and probable cause was based on an analysis of state and local law. This was a relief to many lawyers present, who were concerned that the Court would go along with the prosecution’s overreaching contention that the crime-fraud exception to attorney-client privilege swallowed the privilege entirely because, well, because federal law.
The Court declined to issue a final ruling on the motions until the special master’s report came in. (A special master is a court-appointed adjudicator of time-consuming issues, in this case, deciding claims of privilege with respect to voluminous documents and electronic files.
The Court noted that it had not been presented with a declaration from Ms. McElfresh showing that the accused attorney has an immediate need for the return of seized items in order to conduct her law business, hinting that if the Court were to be presented with such a declaration, the Court may be inclined to make a ruling favorable to the defense.
The next hearing will take place in two weeks, on July 21 at 2:30 p.m. in Department 36 on the third floor of the Main Courthouse located at 220 West Broadway, before the Honorable Laura Halgren.
DETAILED DESCRIPTION OF HEARING (FOR LAW GEEKS)
Defendant Jessica McElfresh was represented by the mighty Eugene Iredale, and the prosecution was represented by Jorge Del Portillo.
You can compare their listings on the State Bar web site:
http://members.calbar.ca.gov/fal/Member/Detail/75292
http://members.calbar.ca.gov/fal/Member/Detail/241474
The matter was set for a hearing on the accused’s Motions for Return of Property, Narrowing Scope of Search Warrant, Return of Illegally Seized Items, Return of Privileged Material, and Sealing Pending In Camera Review.
The hearing commenced with about a dozen lawyers entering appearances on behalf of their current clients (clients formerly represented by Jessica McElfresh) to assert the attorney-client privilege. Mr. Iredale agreed to provide the court with a comprehensive list of counsel and clients asserting privilege.
Judge Halgren noted she is in trial and only had until 10 a.m. She said she did not want to hear more about the timing of the search warrant in relation to the court order issued by Judge Ipema (to return funds seized from co-defendant Slatic in an asset forfeiture proceeding), meaning, she did not want to hear about retaliatory and vindictive prosecution. There was no more discussion of this topic during the hearing.
Judge Halgren stated that no further argument was needed on the federal prohibition, as the search warrant was based on purported violations of state law, not federal law, and probable cause was based on an analysis of state and local law. This was a relief to many lawyers present, who were concerned that the Court would go along with the prosecution’s overreaching contention that the crime-fraud exception to attorney-client privilege swallowed the privilege entirely simply “because federal law.”
Judge Halgren did issue a tentative ruling in favor of the defense with respect to medical records pertaining to Ms. McElfresh and her father, who passed away years ago. She said medical records of patients are protected by a right of privacy in the California Constitution, that the search warrant does not encompass such medical records, that there is no basis for overcoming their confidentiality, and that the defense should expect the records to be returned.
The prosecutor, Mr. Del Portillo, argued that if Ms. McElfresh has a medical marijuana recommendation, or is in possession of recommendations, that is evidence either of an affirmative defense (a reference to the medical cannabis defense, which technically is a limited immunity from prosecution rather than an affirmative defense) or evidence of her joining a criminal conspiracy.
If Ms. McElfresh is part of a collective, argued Del Portillo, she is part of a conspiracy. Judge Halgren stated that the Court does not see the search warrant as authorizing a search of medical records for defendant’s medical marijuana recommendation, but that the Court will not issue a final ruling until it obtains the special master’s report.
With regard to the defense challenge to the overbreadth of the search warrant with respect to electronic searches, Judge Halgren stated that the Court did not view the search warrant as authorizing an electronic search term for Ms. McElfresh’s name (and thereby a search of each and every document containing Ms. McElfresh’s name), but rather clarified that the search is to be focused on Ms. McElfresh in connection with the legal entities the Court “found probable cause for.”
The prosecution gave a status update on the electronic search: the items should be imaged and the originals ready to return by the end of next week, but had yet to be analyzed. Defense counsel Iredale requested that, before any search takes place, the defense be given a list of search terms, so there is an opportunity for correction “before the bell that cannot be unrung is rung.” The Court ordered the prosecution and defense to meet and confer to try to narrow the execution of the search warrant so that the search does not exceed the scope of the search warrant (interpreted in light of the court’s clarifying statements.)
Judge Halgren noted that she had not been presented with a declaration from Ms. McElfresh showing that the accused attorney has an immediate need for the return of seized items in order to conduct her law business, hinting that if the Court were to be presented with such a declaration, the Court may be inclined to make a ruling favorable to the defense.
A discussion ensued about verifying the authenticity of imaged copies of seized digital materials, and the Court suggested that the prosecution should keep the original electronic items and provide an imaged copy to the defense.
Defense counsel Iredale requested to be given a copy of the special master report in advance of its publication to the prosecution so that the defense would have an opportunity to object to the inadvertent or unintentional disclosure of privileged information in the report (for example, if the special master itemizes a file in a way that discloses the nature of a privileged communication.) The Court suggested the parties meet and confer with the special master, Mr. Martin.
Mr. Iredale previewed an issue that he wanted to brief more thoroughly: the special master is not allowed to review the contents of seized material, but only to peruse the material in order to categorize it. Prosecutor Mr. Del Portillo said the prosecution disagreed with that position, and argued that when the attorney is a target of a criminal investigation, no special master is required, and that the prosecution had gone above and beyond the call of duty by having a special master. The defense disagreed, of course.
Judge Halgren stated the Court needed to hear from the special master, Mr. Martin at the next hearing; the Court did not want to guess. At the status hearing on July 21, the Court also wanted to hear from the computer lab about its timetable.
The Court further stated that — contrary to the prosecution’s position that the crime-fraud exception applies to any attorney-client communications that could be used as evidence of a violation of 11379.6(a) (Manufacturing by means of ethanol extraction) — the search warrant does not allow examination of all client files to see if there’s evidence of criminal activity.
Finally, Judge Halgren granted Ms. McElfresh permission to travel freely out of state, but would need to obtain a travel order in order to leave the country.
The next hearing will take place in two weeks, on July 21 at 2:30 p.m. in Department 36 on the third floor of the Main Courthouse located at 220 West Broadway, before the Honorable Laura Halgren.