Public defender ordered to testify

Posted: Tuesday, July 10, 2001

A public defender will be required to testify in the trial of his former client and possibly before a grand jury that could produce further charges against the defendant.

It's unusual for lawyers to be called to testify against a client, and it requires a court order if the lawyer asserts the privilege of confidentiality.

Juneau District Attorney Rick Svobodny alleged in court filings that George Miyasato, who has been indicted on two counts of sexually abusing children and of failing to register as a sex offender, made a threatening phone call to the children's mother while he was in the custody of the state's Public Defender Agency.

Judge Patricia Collins on Monday ordered public defender Rob Meachum and a consultant contracted by the agency, Ricardo Hernandez of Eagle River, to testify at Miyasato's trial, due to start next Monday in Juneau Superior Court. She quashed subpoenas for three other staff members at the Public Defender Agency.

"Mr. Meachum has at all times stood ready to do exactly what he was ordered to do by the court," said his attorney, Philip Pallenberg, in an interview. "But he's not allowed to testify against a client unless a court orders him to do so."

While awaiting trial, Miyasato was freed from jail for one day so he could meet with Meachum and Hernandez at a downtown office May 4. The agency was required to keep Miyasato in sight or sound custody all the time.

Svobodny said he wanted to show that the time Miyasato was left alone in a room with a phone matches the time the woman received a threatening phone call on her answering machine. The woman's caller ID displayed the phone number of the office in which Miyasato was being interviewed, he said.

Svobodny said he wanted staff from the Public Defender Agency to be required to testify at the upcoming trial because the phone call, if he could tie it to Miyasato, would show that Miyasato had a "consciousness of guilt" about the original charges.

"I'm saying he sexually abused these kids, because he threatened their mother," Svobodny said after the hearing.

Miyasato, 42, also could face new charges of violating a domestic violence restraining order and interfering in an official proceeding, his upcoming trial on the original charges, Svobodny said. Svobodny told the court Monday there could be a grand jury investigation.

Meachum, who was Miyasato's first lawyer, withdrew from the case in mid-May. Miyasato is now represented by David Gabert, appointed by the court through the state's Office of Public Advocacy.

Communications between a lawyer and client, or a former client, as part of rendering legal services are confidential under the state's rules of evidence. But Svobodny, in a court filing, argued that an attorney's visual observations of a client aren't privileged. And lawyers who serve as third-party custodians have waived part of their confidentiality privilege because they are required to tell authorities if the defendant violated any conditions of release, he said.

Meachum notified the district attorney's office May 7 that there may have been periods during Miyasato's release when he wasn't supervised, according to a court filing by Svobodny.

Judge Collins, after a closed hearing with the defense and the Public Defender Agency, ruled the attorney-client privilege either doesn't apply or has been waived partially. Assistant Public Defender David Seid told Collins that he considered Hernandez' work as a contracted consultant to be covered by a confidentiality privilege as well, and Collins ordered that he be required to testify.

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