FindLaw > Criminal Law Summaries > 1998 Index > Conn v. Gabbert

Case: Conn v. Gabbert

Issue: Whether a prosecutor violates an attorney's Fourteenth Amendment right to practice his calling when the prosecutor causes the attorney to be searched at the same time the attorney's client is testifying before a grand jury.

Facts: Respondent Paul Gabbert is a criminal defense attorney who represented Traci Baker, the former girlfriend of Lyle Menendez, in proceedings related to the murder trials of Menendez and his brother. Baker testified at the first murder trial as a witness for the defense. Petitioners David Conn and Carol Najera were assigned to prosecute the Menendez murder case at retrial. Baker was subpoenaed to testify before the grand jury after Conn and Najera learned that Lyle Menendez had sent her a letter possibly instructing her to testify falsely at trial. At one point, Baker told police that she had given all her letters from Menendez to attorney Gabbert.

Conn and Najera secured a warrant to search Gabbert for the letters when he arrived at the grand jury proceedings with Baker. Gabbert requested that the search take place in a private room, but he did not request that his client's testimony be postponed. While the search was taking place, Najera called Baker before the grand jury. Baker complained that she had been unable to speak with her attorney. After a short recess where she still had no contact with Gabbert, Baker appeared again before the grand jury, but asserted her privilege against self-incrimination "upon the advice of my counsel." Asked another question, Baker again asked to speak with Gabbert. When she was still unable to find him, Baker returned to the grand jury and asserted her Fifth Amendment privilege again.

Gabbert sued Conn and Najera for violating his Fourteenth Amendment right to practice his calling without unreasonable government interference by causing a search warrant to be executed at the same time he was scheduled to counsel his client during her grand jury testimony. He also complained that the search interfered with his client's right to have him outside the grand jury room for consultation and that the timing of the warrant's execution unconstitutionally prevented him from advising his client. The District Court granted Conn and Najera's motion for summary judgement, finding that they possessed qualified immunity.

The Court of Appeals for the Ninth Circuit reversed, holding that since Conn and Najera intended to prevent Gabbert from consulting with his client during her testimony, their action was not reasonable and thus they were not protected by qualified immunity.

Holding: "We hold that the Fourteenth Amendment right to practice one's calling is not violated by the execution of a search warrant, whether calculated to annoy or even to prevent consultation with a grand jury witness." Assuming that Baker has a right to have her attorney outside of the grand jury room, Gabbert has no standing to raise the alleged infringement of his client's rights. As for the purported infringement (through the timing of the warrant's execution) of Gabbert's right to advise his client, this should have been challenged under the Fourth Amendment, because it provides a more "explicit textual source of constitutional protection" for the alleged infringement than does the Fourteenth Amendment.

Reasoning: Chief Justice Rehnquist, joined by Justices O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, wrote the opinion of the Court. A person acting under color of state law is protected by qualified immunity in actions for civil damages unless she or he violated "clearly established statutory or constitutional rights of which a reasonable person would have known." The Court held that Gabbert had no Fourteenth Amendment right that was violated, thus obviating the need to decide whether the right was "clearly established." Searching an attorney at the same time his client is testifying does not "rise to the level of a violation of the Fourteenth Amendment's liberty right to choose and follow one's calling. That right is simply not infringed by the inevitable interruptions of our daily routine as a result of legal process which all of us may experience from time to time."

Other Opinions: Justice Stevens filed a concurring opinion, agreeing that the prosecutors' "shabby" conduct did not deprive Gabbert of any Fourteenth Amendment liberty but refusing to reach the issue of whether the method of conducting the search violated the Fourth Amendment, as that issue was not squarely presented for review.

Comment: The Court refused to reach the issue of whether a grand jury witness has a constitutional right to have counsel available to him outside the grand jury room. It is unlikely that this somewhat cryptic refusal will change the almost universal federal practice of allowing defense counsel to be present outside the grand jury room in order to advise their clients.