Washington Prisoner’s Sentence Vacated After Attorney Calls and Visits Were Recorded
by Douglas Ankney
On January 23, 2024, the Washington Court of Appeals sent the case of a state prisoner back to the trial court that convicted him of second-degree domestic violence rape and assault, finding the counts must be dismissed or retried because officials at the jail where he was detained pretrial eavesdropped on his privileged communications with his attorney. In its ruling, the Court reaffirmed that when a state actor violates a defendant’s Sixth Amendment right to counsel by breaching the attorney-client privilege, prejudice is presumed and the state must prove the absence of prejudice beyond a reasonable doubt.
After Anthony Lynn Couch was detained at the Grays Harbor County Jail in October 2021 for the alleged assault of his former girlfriend, he learned that phone calls to his attorneys, Christopher Swaby and Ruth Rivas, were recorded. Moreover, his video conferences with the attorneys were recorded, too, and his legal mail from them had been opened in his absence. Couch ceased communicating with his attorneys, and they filed a motion to dismiss his charges based on government misconduct, pursuant to Criminal Rule 8.3(b).
At a hearing on the motion, the jail’s Chief Corrections Deputy, Travis Davis, admitted that an examination of the lockup’s phone system revealed 70 calls to Rivas had been recorded. However, Davis insisted that “the software indicated no one had listened to any of the calls,” the Court recalled. Davis then locked and deleted the calls from the system. As to the conference calls, Davis said the video system had been installed for family visitation and he was unaware that the Swaby was using it. Davis assumed the video conferences between Swaby and Couch were recorded but had no knowledge whether anyone had watched the recordings—which did not contain audio, he added.
Jail Sgt. Eugina Buchanan then testified that a former employee had opened Couch’s legal mail. Buchanan testified that she did not look at the contents, but she had no knowledge whether anyone else at the jail had read the legal mail. The trial court denied the motion to dismiss, reasoning that there was no evidence that anyone at the jail had eavesdropped on the recorded telephone conversations, viewed the video recordings or read the legal mail. “[T]here’s certainly no evidence,” the trial court concluded, “that any prejudice resulted.” A jury then convicted Couch on the rape and assault charges; because of prior convictions, he was sentenced to life without the possibility of parole. Couch appealed.
The Court of Appeals pointed to State v. Pena Fuentes, 318 P.3d (Wash. 2014) cf. State v. Irby, 415 P.3d 611 (Wash. 2018), observing that the proper framework for addressing a claim that a defendant’s Sixth Amendment right to privately communicate with his attorneys was violated is: (1) to “determine whether state actors intruded on confidential attorney-client communications”; (2) and if an intrusion occurred, the court must presume prejudice to the defendant; after which (3) the court “must determine whether the State proved beyond a reasonable doubt that the intrusion did not prejudice the defendant.”
But in Crouch’s case, the Court continued, there was no evidence the trial court applied that framework. Instead, the lower court had simply concluded that no prejudice resulted. Yet it was “undisputed that state actors intruded on Couch’s communications with his attorneys in violation of his Sixth Amendment right to privately confer with those attorneys,” the Court noted. Moreover, a review of the record found no evidence presented by the State proving the absence of prejudice beyond a reasonable doubt; to the contrary, Couch had demonstrated prejudice by testifying that there were things related to his defense that he had wanted to discuss with his attorneys but could not because of the recording of his communications.
However, while CrR 8.3(b) provided dismissal of charges as a remedy, the Rule also permitted vacatur of the judgment and a new trial, the Court declared. Again citing Irby, it said that “the trial court should consider the totality of the circumstances, evaluating both the degree of prejudice to [Defendant’s] right to a fair trial and the degree of nefariousness of the conduct by the state actors.”
Accordingly, the case was remanded for the trial court to determine whether to dismiss the charges or order a new trial, with sufficient safeguards to prevent the State from benefitting from the intrusion into Couch’s communications. Before the Court, Couch was represented by attorney Jodi R. Backlund of Backlund & Mistry in Olympia. See: State v. Couch, 29 Wn. App. 2d 660 (2024).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login