Big PCR News, part 2
by: Ryan • June 21, 2013 • no comments
According to today's press release, the Oregon Supreme Court has issued an alternative writ of mandamus in two notable PCR cases:
Jason Van Brumwell v. Jeff Premo (S060980) (original mandamus proceeding involving orders from the Marion County Circuit Court). Relator Jason Van Brumwell is the petitioner in a post-conviction case, and adverse party Jeff Premo, Superintendent of the Oregon State Penitentiary, is the defendant in the post-conviction case.
Petitioner moved (1) for a protective order regarding evidence that he and his former trial level attorneys would provide at their depositions by defendant; (2) to preclude the use of material subject to the lawyer-client privilege for any purpose other than litigating the post-conviction proceeding; and (3) to bar defendant from turning the material over to others, including law enforcement or prosecutorial agencies involved with the prosecution of petitioner's underlying aggravated murder cases. Petitioner later also moved to quash subpoenas directed at two individuals from whom defendant sought certain records that pertained to persons who had performed services for petitioner's defense, unless the requested material instead was delivered under seal directly to the post-conviction court (rather than to counsel for defendant), which would then review the material in camera to determine which material should be disclosed to defendant. The motions directed at the two subpoenas also requested a protective order similar to the one requested in the first motion. The post-conviction court denied all three motions, in two separate orders.
Petitioner challenged those orders in a petition for a writ of mandamus. The Oregon Supreme Court allowed the petition and issued an alternative writ of mandamus.
The issues in this mandamus proceeding are:
(1) With respect to a petition for post-conviction relief, to what extent does the lawyer-client privilege remain intact, and to what extent is it deemed waived?
(2) Does any dissolution or waiver of the privilege exist for all purposes?
(3) Can any information that otherwise would have been subject to the lawyer-client privilege be disclosed outside the parameters of a post-conviction proceeding and used in any retrial?
(4) Did the post -conviction court err in denying petitioner's motions for a protective order, and his motions to quash the subpoenas unless the requested material first was reviewed in camera?
Christian M. Longo v. Jeff Premo (S061072) (original mandamus proceeding involving an order from the Marion County Circuit Court). Relator Christian M. Longo is the petitioner in a post-conviction case, and adverse party Jeff Premo, Superintendent of the Oregon State Penitentiary, is the defendant in the post-conviction case.
Petitioner moved for a protective order with respect to any privileged materials obtained by defendant through the discovery process, which would limit use of the privileged materials to representatives of the Attorney General's Office, and only for the purpose of litigating the claims presented in petitioner's petition for post-conviction relief. The proposed protective order would have prohibited disclosure of privileged materials to any other persons or agencies, including law enforcement or prosecutorial personnel, without an order from the post-conviction court. The post-conviction court denied the motion for protective order and ordered petitioner to provide defendant's counsel with the requested discovery.
Petitioner challenged that order in a petition for a writ of mandamus. The Oregon Supreme Court allowed the petition and issued an alternative writ of mandamus.
The issue in this mandamus proceeding is whether, in a post-conviction proceeding, the post-conviction court may deny a motion for a protective order that would allow for the discovery of privileged, confidential attorney-client communications and work product matters within the post-conviction proceeding itself, but limit the distribution and use of such material outside the confines of the post-conviction proceeding.
