Appellant says police lied to defense counsel; appeals court probes record and legal standard

The Division II Court of Appeals heard argument in State v. James Harcum as appellant counsel Eleanor Knowles urged the court to reverse Harcum’s conviction, saying law enforcement deceived trial counsel to induce an arrest and that the conduct was so outrageous it violated due process.

Knowles told the court that a lead investigator, identified in the record as Detective English, called Harcum’s trial attorney and "asked him to tell Mr. Harcum to report to the police station because they had a warrant for his DNA, a warrant which they did not have." She said the detective later apologized and argued that "when police invade that relationship by lying to a defense attorney ... due process is violated," asking the court to apply Lively and related precedent to presume prejudice.

The argument centered on whether the claim could be raised for the first time on appeal and, if so, what showing the appellant must make. The presiding judge and a colleague repeatedly questioned whether there was sworn testimony in the trial record to support the allegation, or only counsel argument. The bench asked whether the claim was preserved below and whether review should require the appellant to show manifest or obvious error under RAP 2.5.

Senior Deputy Prosecutor Joseph Jackson, arguing for the state, said the manifest-error standard was not met. "Manifest error is not met by a unique or novel legal argument," he told the court, urging that the trial record does not demonstrate that law enforcement’s conduct interfered with the attorney-client relationship or produced a trial advantage. Jackson noted that deputies subsequently obtained a warrant for a buccal (DNA) swab and argued the state did not gain strategic evidence from the alleged statement to counsel.

Jackson and the bench discussed case law the parties cited. The defense pointed to Lively and cases the parties identified as addressing eavesdropping and direct intrusions on privileged communications; the state emphasized decisions it described as limiting dismissal to only the most egregious circumstances and argued those cases involved more direct incursions on privileged material.

Knowles told the court that practical barriers—Fifth Amendment concerns and potential conflicts—could make preserving such an objection in the trial court difficult and that the court should consider whether deterrence and the totality of the circumstances warrant reversal. She repeated that the record contains pretrial hearings and offers of proof where the issue was raised and argued the prosecutor below did not dispute that a ruse occurred, only its relevance.

The court took the matter and other cases into chambers for further consideration and then adjourned. No ruling was announced at the session.

Next steps: the court said it would consider the cases in chambers; no decision was announced from the bench at the hearing.