Attorney-client privilege backfires for Mack


RENO -- To a lawyer, it's sacrosanct: Thou shalt not reveal secrets told by a client under the protection of attorney-client privilege, no matter how damning.

But when clients accuse their lawyers of mishandling a case, the veil of privilege is shattered, and the secrets, for better or worse, become engraved in the legal mass of public record.

Darren Mack, a wealthy pawnbroker charged with slashing his wife to death and shooting the judge who handled their bitter divorce, lifted the veil on private attorney-client discussions when he accused his former lawyers of coercing him into a plea deal.

Mack told a court that lawyers David Chesnoff of Las Vegas and Scott Freeman of Reno had so bungled his case that he deserved to start over.

Now Mack, 46, must live with the consequences, a decision that wrote chilling details of Charla Mack's killing into the legal record and gave prosecutors evidence they say can be used against him at his sentencing.

Revelations like a lawyer's revulsion of Mack's description of the bloody crime scene or an expert's opinion that Mack's paranoia was "paralleled only by the Unabomber" would not have been disclosed had the attorney-client bonds remained intact.

Attorney-client privilege is "very sacred," said Robert Weisberg, faculty director of the Criminal Justice Center at Stanford Law School.

Lawyers take their clients' secrets to the grave.

"If the lawyer is alive and the client is dead, the lawyer is still going to refuse to violate the privilege," Weisberg said.

On the flip side, that confidentiality, as shown in the Mack case, also is "very waivable," he said.

Legal experts say Mack must live with his decision to use his former lawyers as grounds for seeking a new trial.

"Oh, yes, I think these things come back to haunt him and they're in the record forever," said Jeffrey Stempel, a professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas.

Prosecutors had just finished presenting their first-degree murder and attempted murder case against Mack in a Las Vegas courtroom when he brought the proceedings to a halt Nov. 5 by agreeing to a plea deal. His lawyers had not begun presenting the defense side.

Days later, Mack changed his mind, fired Chesnoff and Freeman, hired Reno lawyers William Routsis and Bruce Lindsay, and sought to withdraw his pleas and have a new trial.

In a 35-page declaration that District Judge Douglas Herndon said "strains credibility," Mack accused his former lawyers of serious allegations, including making him lie and forging his signature.

With those accusations, the privilege that had existed was waived.

Chesnoff and Freeman testified last month during a four-day hearing on Mack's motion to withdraw his pleas.

"It's a funny position for a defense lawyer to be in," Weisberg said. "They're no longer their lawyer, and they're absolutely required to tell the truth when called on in court."

Freeman asked the judge several times to reaffirm that the attorney-client privilege had been waived.

Routsis questioned Freeman about why he didn't alert police to Mack's assertion that he tossed a gun Charla Mack pointed at Mack and the knife he used to kill her into a Dumpster.

Mack claimed the gun would have had his wife's fingerprints on it, and bolstered his defense that she attacked him.

Freeman responded by noting the attorney-client creed.

"When I learn something from my client, I'm not telling anybody," he said. "I'm not telling anybody about any gun, I'm not telling anybody about a knife."

If found, he said, the weapons also could have confirmed Mack's guilt.

Freeman called the ordeal of testifying "unprecedented."

"Never, in 24 years, have I had to testify against a client that I defended as zealously as I did," he said.

Routsis also argued the previous lawyers were remiss for not interviewing witnesses who Mack said would vouch for his character, including Nevada first lady Dawn Gibbons, state Sen. Randolph Townsend and others.

"From the very beginning, I felt one of my best defenses was 45 years of having an impeccable reputation," Mack testified.

The judge said that all changed on a day in June 2006.

Having "character witnesses to say he was a great guy before this happened doesn't have the same meaning," Herndon said.

He also said it was hard to fathom Mack's contention that he never intended to kill Family Court Judge Chuck Weller when he shot him sniper-style with a high-powered rifle from a parking garage 170 yards away as the judge sat in his third-story chambers.

"To get around that, you'd basically have to be saying, 'I'm such a good marksman and so knowledgeable that I knew the bullet would fragment going through the double pane windows and just tear a few lacerations in his chest, rather than exploding through his chest and blowing his heart out and killing the man as he stood there,'" Herndon said.

"That's very strong circumstantial evidence of attempt to kill."

Routsis argued that neither Mack's previous attorneys nor the judge properly questioned Mack about whether he understood the ramifications of the plea deal. He also said Mack was emotionally and physically beaten down into accepting the plea, and never agreed with an initial insanity defense.

"We're just asking to give this man a trial," Routsis argued. "This case begs for a jury to hear this man testify."

That was the plan during the first trial, until the defense team became increasingly concerned about how Mack would be perceived by jurors.

Chesnoff testified that he became "physically ill" while preparing Mack to testify as Mack described how he put his knee on his dying wife's head as blood gurgled out.

The lawyer said Mack also expressed a belief that the Constitution's Second Amendment justified shooting Weller, who has since recovered.

Chesnoff said the defense was concerned Mack would come across as a "sociopath" if he took the stand.

It took Herndon nearly two hours to explain his ruling, reciting dozens of higher court opinions and case law, before denying Mack's motion.

Under the plea deal, Mack faces up to life in prison with possible parole after 20 years for murder, and he avoided what would have been an automatic second, consecutive life term for using a deadly weapon. He also faces two terms of two to 20 years for attempted murder with a deadly weapon.

Herndon must decide whether those terms will run at the same time.

Mack may withdraw his pleas if Herndon imposes a harsher judgment, something the judge has hinted isn't likely.

Afterward, Special Prosecutor Christopher Lalli said he was happy for Mack's assistance as the case goes to sentencing Feb. 7-8.

"We know things about the facts that we didn't know before," Lalli said after the ruling. "Things he did, things he said, things he thought about. These, I believe, are relevant to the issue of sentencing."

Stempel noted that sentencing is just one phase in what's likely to be a long legal process, from post-conviction appeals to parole hearings.

"Anything that's on the record now, it's all relevant for future proceedings," he said.

 

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