– Roger Khan tells court
Guyanese drug accused Roger Khan says he has no intention of allowing the defence team of his former attorney Robert Simels, who is facing witness tampering charges, to see and use material that may contain communication that falls within the attorney-client privilege since this could jeopardise his ability to defend himself.
Court papers filed by Khan’s lawyer, Steven Brounstein, oppose both the disclosure of any material to Simels’ counsel and its subsequent use at trial in his defence. It was pointed out that the material was gathered for the purpose of defending Khan against the “very serious allegations he faces.
“Exposure of that information and material to any third party seriously jeopardises Mr Khan’s ability to defend himself. Its exposure and later use at Mr Simels’ trial would provide to the government a road map of Mr Khan’s defence and undermine his ability to present evidence in his own behalf against the very serious charges and possible life sentence that he faces.”
Khan said he might be willing to allow Simels to use the material after his drug trial had concluded.
The court papers were filed after Simels, through his lawyer Gerald L. Shargel, moved to the court seeking an order to use the material, as Khan had earlier refused to waive his attorney-client privilege. Simels, in a motion, said his defence of the witness tampering charge was “unavoidably dependent on exposing large elements of his former client’s attorney-client privileged communications and attorney product. The nature of the charge makes it so.”
Simels, his assistant Arianne Irving and Khan are facing witnessing tampering charges. The three are charged with conspiracy to tamper with witnesses scheduled to testify in the drug trial. Among other things, Simels is accused of paying US$1,000 and discussing “eliminating and neutralizing” witnesses. He and his assistant allegedly had numerous discussions with a US government informant, to locate certain individuals close to the cases and to get them to rescind statements, not to testify against Khan, or even be “eliminated.” The US informant with whom the two had discussions, and who was listed as reliable in court documents as information from him had led to drug busts in the past, had also been asked to testify for Khan during the trial.
Khan’s lawyer in his response said he had the right to object to the disclosure and use of the material until he had the ability to defend himself without fear of disclosure that may hamper his defence.
“We do not challenge the assertion that records, files and documents maintained by Mr Simels are highly relevant and may be of value to his defence. We also do not dispute that Mr Simels has a right to offer relevant and exculpatory evidence and present witness and evidence on his own behalf to confront and rebut the serious charges against him,” the lawyer said. However, he said Simels’ right to defend himself using privileged material did not supersede his client’s “unquestionable right to have that information protected pursuant to his attorney-client privilege.” He said Khan was seeking protection of this privilege so that he might use the material and information to defend himself against charges that were even “more serious with greater potential punishment than the allegations contained in the indictment against Mr Simels before the court.”
The lawyer agreed with Simels that the situation presented a “troubling conflict” and said it was one that might be resolved only after Khan’s case had reached a disposition. He said while the information might be beneficial to Simels’ defence, it was their position that it should first be utilised for the purpose for which it was initially developed under protection of the attorney-client privilege − the defence of his narcotics case.
He pointed out that Khan clearly had a privileged interest in the material and its release. He said too that his constitutional rights were implicated and affected. It was argued that asking the court to review the material placed the court in a position of making determinations on whether to release certain material to Simels and allowing him to use that material while risking Khan’s rights in another matter. “It is asking the court to determine the factual value of evidentiary material in Mr Khan’s case and balancing that with its value to Mr Simels’ in this case.”
Brounstein noted that Khan had entered a plea of not guilty and he intended to challenge the charges in the same vigorous manner in which Simels was confronting the charges against him.
“The only logical solution to this difficult conflicting interest between Mr Khan and Mr Simels is to hold this discovery process in abeyance and revisit it after Mr Khan’s narcotics trial has been resolved.” While Simels had a right to a speedy and prompt resolution to his matter and while it was unquestionably a serious matter made all the more traumatic and difficult because Simels was a member of the bar, the lawyer said “Khan’s right to protect his attorney-client privilege outweighs that of Mr Simels to obtain the material he now seeks.”
In the motion filed on behalf of Simels it was argued that the order was being sought on two grounds – Simels’ constitutional right to present evidence in his defence and the exception to the common law attorney-client privilege that permitted attorneys to disclose confidential information and work product to the extent that the attorney reasonably believed such disclosure was necessary to defend himself against a charge of criminal wrongdoing.
The lawyer had said that the materials were highly relevant and necessary to Simels’ preparation of his defence. He had argued that because the government had based its charge against Simels on a few recorded conversations between its informant and Simels and Irving, the voluminous files that Simels’ law firm prepared in anticipation of Khan’s trial had become highly relevant to rebut the government’s charge. “Mr Simels intends to show at trial the substantial and legitimate work performed by his law firm in preparation of Mr Khan’s trial. “This context is necessary for the jury to understand the government’s limited recordings. The presentation of this evidence at trial is, therefore, necessary to Mr Simels’ defence,” the lawyer had said.
And according to Simels’ lawyer, it was not inconceivable that Khan’s drug case may be delayed until 2010 and that the witness tampering case would be tried earlier. He had pointed out that since his client had withdrawn as Khan’s lawyer, the Guyanese had not retained new counsel and the court had declined to appoint new counsel. However, once the issue of the counsel had been resolved, the new counsel must learn and prepare a case involving extremely voluminous discovery which Simels had been reviewing over the last two years.
“Moreover, the narcotics case involves still unresolved complex pre-trial motion litigation regarding obscure issues of international law… [and] litigation involving the admissibility of significant amounts of foreign source evidence and the government’s attempt to introduce… ‘other acts’ evidence, including murders,” the motion said. In contrast, the case against Simels involved a single count, a small amount of discovery, and conduct encompassing only a few months.
