Lawyers Weekly Consults Attorney Yannetti on Issue of Prosecutorial Misconduct

Contact: Erin Francoeur
Phone: (617) 338-6006

9 A.M. EDT, April 9, 2012

Members of the Massachusetts Bar are in disbelief over a case in which the Bristol County Sheriff's Department forwarded an illegally taped attorney-client phone call to prosecutors, who then presented it as evidence to a grand jury to gain indictments against a defendant, Jonathan Niemic. The resulting Bristol County murder case, in which the defendant is charged with stabbing a man to death outside an AA meeting, is now clearly in jeopardy. The defendant's attorney has filed a motion for the case to be dismissed with prejudice.

Such a breach of attorney-client confidentiality is shocking and raises serious questions for any judge who will review this case. Attorney David R. Yannetti, when consulted regarding the egregious error made in this case stated, "With what's at stake - a guy being held without bail and a family probably seeking justice - the idea that a prosecutor did this makes him and his office look really bad." Yannetti is a former prosecutor who distinguished himself preparing and trying numerous murder cases in the Commonwealth. His expertise is regularly sought by: Fox News, Investigation Discovery, NBC, CBS, ABC, NECN and Massachusetts Lawyers Weekly.

In fact, Attorney Yannetti weighed in on this identical issue five years ago, when the Suffolk County Sheriff's Department instituted a policy whereby calls were routinely recorded between a lawyer and her incarcerated client. In the May 1, 2006 edition of Mass. Lawyer's Weekly, Attorney Yannetti was quoted as having stated that, "[this situation] just cuts to the core of the attorney-client privilege, and we just can't have that. Ultimately, this practice is going to be stopped whether it's voluntarily by the participants or involuntarily by the courts."

Following Attorney Yannetti's admonishment, MA jails and houses of correction changed their policies about recording attorney-client calls. Despite that change in policy, however, the Bristol County Jail in the current case still mistakenly recorded a detainee talking to his lawyer. Worse, that illegally taped conversation was forwarded to the prosecutor of the defendant's case. The prosecutor then compounded this error with a serious lapse of judgment of his own, by introducing that illegal recording to the grand jury investigating the murder.

"Recent infringements on defendants' rights are a reminder of the need for diligence in legal practice. The rights and civil liberties of individuals facing prosecution are ensured by our system through the attorney-client privilege. This principle is sacred. A dismissal - even of the serious charge faced by the defendant in this case - would be an appropriate remedy to ensure that future prosecutors will be more careful to respect that principle," noted Attorney Yannetti.

All eyes in the legal community will be on the Niemic murder case to see what sanction the judge will impose as a result of the prosecutor's negligence.