Agents from the California Department of Justice intentionally eavesdrop upon privileged attorney-client communications while the attorney and client are at the DOJ. The court below dismisses the charges against the defendant based upon this outrageous conduct. The Court of Appeal reverses.
Justice Yegan argues that while such a dismissal "surely would have a deterrent effect upon law enforcement agents," it is "too drastic and would be 'judicial overkill.'" The Court of Appeal holds that the exclusion of the overheard communications and any derivative evidence is instead sufficient, as such a lesser remedy would "deter over-zealous law enforcement agents as there is nothing to be gained by such unlawful activity."
This is true. As long as the chance of being caught is exactly 100 percent. In the real world, however, the probability of being caught is way, way less than that. Which means that simply restoring the status quo (by excluding the evidence) only remedies the misconduct in the particular case, and does not accomplish the goal of general deterrence. It's like saying that the proper penalty for a guy who commits burglary is simply to order him to put the stuff back. Sure, such an order means that "there is nothing to be gained by such unlawful activity" in this particular case. But it doesn't do what a dismissal would, which is to create a deterrent effect by making the situation worse for the perpetrator in the event they're caught.
Justice Yegan distinguishes an earlier Court of Appeal case, Morrow, in which a dismissal of criminal charges was upheld based upon similar facts by arguing (inter alia) that the misconduct in that case was worse since it was performed by a prosecutor. Which is, again, true, but also cuts the other way as well. With prosecutorial misconduct, there's also potential Bar remedies, which may make dismissal less necessary since alternative forms of deterrence are available. But when the misconduct comes from the police, such external remedies are unavailable; indeed, I imagine that the offending officers here might well get "attaboys" from their colleagues for their efforts -- a far cry from the deterrent that potential Bar discipline creates. In such situations, a dismissal would be more necessary, not less.
Admittedly, like everyone else, I wish there was an intermediate remedy. I'd be satisfied with charging the offending DOJ agents with a misdemeanor, for example. But the stark reality is that we all know that this is not going to happen -- indeed, in the Court of Appeal (as well as below), the Attorney General's office defended what the agents did, arguing that it was entirely permissible for law enforcement agents to secretly listen to privileged attorney-client communications uttered in hushed tones in a private conference room (in Russian, no less).
While the Court of Appeal thankfully rejects this position, it's not enough. There's no real deterrent if the only thing that gets restored is the status quo. Which is a reality that I think Justie Yegan's opinion needs to address more directly. And is the best argument for the decision below.