State of Arizona Ex Rel Adel v. Hon. Adleman

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA EX REL. ALLISTER ADEL, MARICOPA COUNTY ATTORNEY,
Petitioner,

v.

HON. JAY R. ADLEMAN, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,

SHAVONTE DESHAWN BEASLEY,
Real Party in Interest.

No. CR-21-0157-PR
Filed February 9, 2022

Special Action from the Superior Court in Maricopa County
The Honorable Jay R. Adleman, Judge
No. CR2012-008302
VACATED

Memorandum Decision of the Court of Appeals, Division One
No. 1 CA-SA 21-0028
Filed March 25, 2021
REVERSED AND REMANDED

COUNSEL:

Allister Adel, Maricopa County Attorney, Julie A. Done (argued), John
Schneider, Kirsten Valenzuela, Deputy County Attorneys, Phoenix,
Attorneys for State of Arizona and Allister Adel

Daniela De La Torre, De La Torre Law Office, PLC, Phoenix; and Michael S.
Reeves (argued), Michael S. Reeves, Attorney at Law, Phoenix, Attorneys
for Shavonte Deshawn Beasley
 STATE EX REL. ADEL V. HON. ADLEMAN/BEASLEY
Opinion of the Court

David J. Euchner, Pima County Public Defender’s Office, Tucson; and
Emily Skinner, Arizona Capital Representation Project, Phoenix, Attorneys
for Amici Curiae Arizona Attorneys for Criminal Justice and Arizona
Capital Representation Project

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
BOLICK, BEENE, KING, and PELANDER (RETIRED) joined. *

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether a defendant in a criminal case who
asserts the attorney-client privilege must make a prima facie showing that
each communication is privileged or can rely on a blanket application of the
privilege. Here, because the defendant failed to make an adequate
showing, we remand to the trial court with instructions to redetermine the
existence of the privilege, if any, for the disputed communications
following the principles in Clements v. Bernini ex rel. County of Pima, 249
Ariz. 434 (2020).

BACKGROUND

¶2 Since 2019, inmates at Maricopa County Sheriff’s Office
(“MCSO”) jails have had access to jail-provided computer tablets to send
text messages and make phone and video calls. Inmate Rules and
Regulations regarding tablet usage were posted at the jail before MCSO
issued the tablets and informed inmates that the only method of
unmonitored communication was the jail’s designated legal telephone. To
use the messaging system, every inmate and message recipient must
acknowledge that non-legal communications are monitored and not
privileged.

¶3 Shavonte Deshawn Beasley is in jail awaiting trial on various
felony charges, including first degree murder. The State originally noticed
its intent to seek the death penalty against Beasley but later withdrew its

* Justice Montgomery is recused from this case. Pursuant to article 6,
section 3 of the Arizona Constitution, Justice John Pelander (Ret.), of the
Arizona Supreme Court was designated to sit in this matter.
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Opinion of the Court

notice on October 1, 2021. On approximately February 10, 2020, Beasley
began using an MCSO-issued Telmate tablet to communicate with family,
friends, and members of his defense team.

¶4 On February 12, 2020, Merri Plummer, an administrator at the
Office of Contract Counsel, emailed all contract defense attorneys to
reiterate that text messaging via the tablets was not privileged. The email
also explained that the new application, expected to be available in March,
would allow attorneys to conduct privileged video visits from their cell
phones. On February 28, Plummer emailed all defense attorneys and
mitigation specialists informing them that beginning March 1 the
“GettingOut” application would allow video and phone visits with “non-
monitored, non-recorded privileges,” but she emphasized that the
privileges did not apply to texts. Defense team members were instructed
not to use their GettingOut account until they submitted photos of their
driver licenses and received written confirmation that their account had
been flagged as privileged.

¶5 On March 4, after receiving Plummer’s emails, Beasley’s
mitigation specialist, Anna Nelson, sent MCSO Sergeant Jason House an
email with the subject line “Visitation – Legal,” in which she attached a
photo of her driver license and identified herself as a contract mitigation
specialist. Sergeant House responded that “[f]or purposes of mitigation,
this account has been marked professional, not recorded, and free.”

¶6 On March 11, the State issued and served a criminal subpoena
duces tecum on MCSO requesting Beasley’s texts since January 1, 2020 to
dispute his claimed intellectual disability, which would render him
ineligible for the death penalty. The subpoena, which was served on
neither Beasley nor his defense team, noted that “[t]he State is not seeking
any legal correspondence.” MCSO released all of Beasley’s texts to the
State, including hundreds with Nelson and approximately twenty with the
defense team’s paralegal, Nicole Erich. Upon analyzing Beasley’s texts, the
State furnished them and the subpoena to Beasley’s defense team in several
disclosures in April and May 2020.

¶7 The State subsequently filed a Motion to Determine Non-
Privileged Status of Communications with the trial court, arguing the texts
with the defense team were not privileged based on the MCSO Rules and
Regulations and the Telmate Terms and Conditions. Beasley countered that
all his communications obtained via subpoena were privileged, citing six
specific texts and Nelson’s March 4 email exchange with Sergeant House.
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 STATE EX REL. ADEL V. HON. ADLEMAN/BEASLEY
Opinion of the Court

The State moved for an evidentiary hearing, but the court ruled based on
the extant record that all of Beasley’s communications with Nelson and
Erich were confidential, privileged, and non-discoverable because (1) the
defense made reasonable efforts to secure private and confidential
communications with Beasley; (2) Beasley subjectively believed the
communications were privileged; and (3) the State did not establish that
Beasley waived the attorney-client privilege.

¶8 The State unsuccessfully moved for reconsideration after we
issued our decision in Clements and then sought special action relief. The
court of appeals determined that, because the March 4 email exchange
between Sergeant House and Nelson provided assurances of
confidentiality, texts sent after March 4 were privileged. State ex rel. Adel v.
Adleman, No. 1 CA-SA 21-0028, 2021 WL 1137258, at *1 ¶ 1 (Ariz. App. Mar.
25, 2021) (mem. decision). However, the court remanded the case to the
trial court to resolve the “fact specific” inquiries of whether the
communications made before March 4 were also made in confidence and
treated as confidential. Id.

¶9 We granted review to consider the application of the
attorney-client privilege when a communication purportedly is
inadvertently disclosed, a recurring issue of statewide importance. We
have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

I.

¶10 We review rulings on discovery issues for an abuse of
discretion. Twin City Fire Ins. v. Burke, 204 Ariz. 251, 253–54 ¶ 10 (2003). We
defer to the trial court’s factual findings provided they are “supported by
reasonable evidence.” Id. at 254 ¶ 10. However, a trial court’s legal error
may be an abuse of discretion. Id. Whether the attorney-client privilege
exists is a question of law, which we review de novo. Id. Similarly,
“[w]hether a party has waived the attorney-client privilege is a mixed
question of law and fact which we review de novo.” Id. (alteration in
original) (quoting Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322,
1326 (9th Cir. 1995)).

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 STATE EX REL. ADEL V. HON. ADLEMAN/BEASLEY
Opinion of the Court

A.

¶11 The attorney-client privilege derives from a criminal
defendant’s constitutional right to due process enshrined in the Fourteenth
Amendment to the United States Constitution and article 2, section 4 of the
Arizona Constitution, and from an accused’s right to the assistance of
counsel under the Sixth Amendment to the United States Constitution and
article 2, section 24 of the Arizona Constitution. See State v. Warner, 150
Ariz. 123, 127 (1986). The privilege serves the essential function of
facilitating a client’s candid communication with counsel because “[u]nless
the lawyer knows the truth, he or she cannot be of much assistance to the
client.” Clements, 249 Ariz. at 439 ¶ 7 (alteration in original) (quoting
Samaritan Found. v. Goodfarb, 176 Ariz. 497, 501 (1993)); Warner, 150 Ariz. at
127 (“[I]f an accused is to derive the full benefits of his right to counsel, he
must have the assurance of confidentiality and privacy of communication
with his attorney.”). The attorney-client privilege, as pertinent here, is
codified at A.R.S. § 13-4062(2) (criminal actions).

¶12 The protections associated with the attorney-client and work
product privileges generally extend to communications between the client
and counsel’s paralegal or investigative staff. See, e.g., Ariz. R. Crim. P.
15.4(b)(1); Upjohn Co. v. United States, 449 U.S. 383, 397–98 (noting that work
product privilege generally prohibits discovery of written statements,
private memoranda, and personal recollections prepared or formed by
counsel in the course of legal representation (quoting Hickman v. Taylor, 329
U.S. 495, 510 (1947))). Absent a client’s consent, an attorney may not
divulge communications with a client made in the course of legal
representation. § 13-4062(2); Samaritan Found., 176 Ariz. at 501.

¶13 In a dispute over the existence or scope of the attorney-client
privilege, the party claiming the privilege must make a prima facie showing
that it applies to each contested communication. Clements, 249 Ariz. at 439–
40 ¶ 8; see State ex rel. Babbitt v. Arnold, 26 Ariz. App. 333, 336 (1976). The
proponent of the privilege must show that: “1) there is an attorney-client
relationship, 2) the communication was made to secure or provide legal
advice, 3) the communication was made in confidence, and 4) the
communication was treated as confidential.” Clements, 249 Ariz. at 440 ¶ 8.

¶14 In Clements, we held that the inmate-proponent must assert
the privilege for each “individual call[],” not merely one blanket privilege
assertion for all calls with his attorney. Id. at 441 ¶ 16; see also Alexander v.
Superior Court, 141 Ariz. 157, 163 (1984) (“If the client himself does not treat
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 STATE EX REL. ADEL V. HON. ADLEMAN/BEASLEY
Opinion of the Court

the particular communication as privileged, that communication will not be
recognized as a confidence by this court.” (emphasis added)). Although the
proponent must establish a prima facie case for each communication,
privilege may be established by grouping communications if circumstances
demonstrate they share a common nature and purpose. For example, a
defendant may use a privilege log to identify each communication by date,
time, and participants, and then introduce evidence that all the
communications occurred in the course of an attorney-client relationship,
were made for the purpose of seeking legal advice in confidence, and were
treated as confidential. See, e.g., Ariz. R. Civ. P. 26(b)(6) (for civil privilege
logs); Ariz. R. Crim. P. 15.5(e) (concerning criminal pretrial procedures and
document disclosures requiring clear identification of, and legal basis for,
document redactions). Thus, we decline to articulate a rule requiring courts
to scrutinize each communication, line-by-line, where the privilege may be
established for a class of communications based on appropriate
circumstances.

¶15 Upon a prima facie showing of privilege, the party contesting
the privilege must demonstrate a good faith basis that an in camera review
of the communications would reveal waiver of the privilege or establish an
applicable exception. Clements, 249 Ariz. at 438 ¶ 1 (quoting United States v.
Zolin, 491 U.S. 554, 572 (1989)). For example, the prosecutor could show
circumstances suggesting that a defendant waived the attorney-client
privilege by communicating with counsel knowing the conversation may
be overheard or monitored and made no efforts to safeguard against such
intrusion. See State v. Moody, 208 Ariz. 424, 448 ¶ 79 (2004). Or the
prosecutor could present circumstances suggesting application of the
crime-fraud exception, which permits breach of the privilege to prevent
clients from abusing the privilege by concealing communications made to
facilitate crime or fraud. See Zolin, 491 U.S. at 563, 572 (“Before engaging in
in camera review to determine the applicability of the crime-fraud exception,
the judge should require a showing of a factual basis adequate to support a
good faith belief by a reasonable person, that in camera review of the
materials may reveal evidence to establish the claim that the crime-fraud
exception applies.” (internal citation omitted) (quoting Caldwell v. District
Court, 644 P.2d 26, 33 (Colo. 1982))); see also Ariz. R. Sup. Ct. 42, Ethical Rule
(“ER”) 1.6; Restatement (Third) of the Law Governing Lawyers § 82 (Am.
L. Inst. 2000).

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 STATE EX REL. ADEL V. HON. ADLEMAN/BEASLEY
Opinion of the Court

B.

¶16 On the limited record before us, we conclude Beasley failed to
satisfy his burden of establishing a prima facie case for the existence of the
attorney-client privilege for the seized texts, and the trial court misallocated
the burden of proof to the State.

¶17 In support of his claim of privilege, Beasley produced three
exhibits: (1) the March 4 email between Sergeant House and Nelson; (2) a
forwarded email from Plummer concerning the sign-up instructions for the
tablet video visitation system; and (3) a one-page journal article about
general discovery violations. There is no dispute that the attorney-client
privilege extends to members of Beasley’s defense team, including Nelson
and Erich. Indeed, the parties agree that Beasley satisfied the first Clements
element—the existence of the attorney-client relationship. But to establish
privilege, he must satisfy the remaining three Clements elements—that the
communications were made to secure or provide legal advice, in
confidence, and were treated as confidential. Clements, 249 Ariz. at 439–40
¶ 8.

¶18 Beasley argues that all his communications were privileged
because, as the trial court determined, he manifested an intent to establish
a “legal” account on the tablets on which he texted members of his defense
team, and his counsel avowed that the contested communications were
made in the course of legal representation. Evidence of Beasley’s intent is
certainly germane to the second Clements element—the communication was
made to secure or provide legal advice—but communications to or from an
attorney are not categorically protected. See id. at 440 ¶ 10; Samaritan Found.,
176 Ariz. at 501–03. The privilege applies only to those communications
made to secure or provide legal advice, and Beasley has the burden to
demonstrate that the circumstances bolster his claim that the texts were
created for that purpose. Clements, 249 Ariz. at 440 ¶ 10; see State v. Fodor,
179 Ariz. 442, 448 (App. 1994). And, as we noted in Clements, although “an
attorney’s representation to the court that a communication was made to
secure or provide legal advice is entitled to substantial weight,” we also
clarified that such an avowal is not dispositive, and the inquiry into
privilege is fact specific. 249 Ariz. at 440 ¶ 10. On this record, Beasley’s and
his counsel’s bare assertions of privilege fall short of establishing the second
Clements element.

¶19 Beasley also fails to adequately address whether, in light of
the MCSO warnings about the non-privileged nature of its tablet text

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Opinion of the Court

messaging, he has satisfied the third and fourth Clements elements—that his
texts were made in confidence and were treated as confidential. On this
record, further inquiry is necessary to determine whether Beasley
“reasonably understood” that the texts were sent in confidence and were
treated as confidential, even though his use of the tablet for texting was
expressly conditioned on his recognition that the communications were
monitored and not privileged. Id. ¶ 11 (“The court must ask ‘whether the
client reasonably understood the [communication] to be confidential.’”
(quoting State v. Sucharew, 205 Ariz. 16, 22 ¶ 11 (App. 2003))).

¶20 Our privilege analysis here is complicated by the procedural
missteps culminating in the State’s premature review of, defense counsel’s
use of, and the trial court’s improper consideration of the texts’ content.
The State procured Beasley’s texts via subpoena and, after failing to
recognize some of the texts were potentially privileged, reviewed them
before disclosing them to the defense and seeking court review. As a
reminder, once the state questions the privileged nature of communications
it obtains, it must cease its review, immediately disclose them to the
defense, and enlist court guidance. Cf. Lund v. Myers, 232 Ariz. 309, 311–12
¶¶ 12–13 (2013) (noting that a party in receipt of allegedly privileged
documents must suspend use of such documents, immediately notify the
alleged privilege holder, and present the information to the trial court to
resolve the privilege dispute).

¶21 The parties did not have the benefit of our guidance in
Clements when the trial court originally considered the privilege claim.
However, once the State moved for reconsideration after Clements, the trial
court should have required Beasley to make a prima facie case of privilege
for the contested texts by applying the four Clements elements, based on
“the circumstances of the communication[s],” rather than the content of the
texts. Clements, 249 Ariz. at 440 ¶ 9 (emphasis added). Upon Beasley’s
carrying his burden, the State could have contested privilege by proving
waiver or demonstrating a good faith basis for an exception. However, as
the State acknowledges, a prosecutor must have a good faith basis for
concluding the privilege is inapplicable before subpoenaing records
reflecting attorney-client communications. The state has no right to
subpoena such records in a fishing expedition. 1 See Zolin, 491 U.S. at 571
(stating “[t]here is no reason to permit opponents of the privilege to engage
in groundless fishing expeditions”). Notably, the State concedes it does not

1 We declined review of, and do not consider here, whether the State
violated its ethical duties under ER 4.4.
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 STATE EX REL. ADEL V. HON. ADLEMAN/BEASLEY
Opinion of the Court

have a factual basis to breach the privilege under the crime-fraud exception,
and its only claim is that Beasley waived the privilege.

¶22 Because the State erroneously reviewed the texts, defense
counsel referenced their content, and the trial court considered such content
before determining privilege in violation of the Clements procedures, the
parties must relitigate the privileged nature of the texts based on the
circumstances of the communications rather than the content of the texts.
We remand to the trial court to determine—pursuant to Clements and our
reasoning here—whether Beasley’s communications with his defense team
were protected by the attorney-client privilege. We defer to the trial court
to determine whether an evidentiary hearing is necessary.

II.

¶23 At oral argument, defense counsel intimated that inmates at
MCSO jails were denied access to the designated legal phone to contact
counsel for privileged communications at the inception of the COVID-19
pandemic. Unique considerations arise in safeguarding an incarcerated
defendant’s constitutional right to counsel. Although an inmate’s ability to
confer with counsel is necessarily subject to jail policies, which the court
may consider when determining if confidentiality has been waived, a jail
may not impermissibly restrict a defendant’s right to counsel. Clements, 249
Ariz. at 440 ¶ 12. When assessing the confidentiality of monitored
communications, the trial court should consider (1) the content of any
warning to the inmates; (2) the reasonableness of an inmate’s expectation of
confidentiality; and (3) whether the jail’s monitoring policy “presents an
unreasonable or arbitrary restriction on a defendant’s ability to
communicate with his counsel.” Id. at 440–41 ¶ 13; see also Arpaio v. Baca,
217 Ariz. 570, 579 ¶ 28 (App. 2008) (“[C]ourts have the inherent authority
and obligation to provide relief to defendants from jail regulations . . . that
significantly interfere with or unreasonably burden the exercise of their
Sixth Amendment right to . . . counsel.”). Thus, “[i]f an inmate has no
practical way to communicate with counsel without interception, he can
hardly be said to have waived the privilege by choice or inadvertence.”
Clements, 249 Ariz. at 441 ¶ 14.

¶24 Defense counsel’s contention at oral argument is the first
mention of any such restriction and there is no evidence in the record before
us that COVID-19-inspired policies restricted inmates’ communication with
counsel solely to the non-privileged tablet text messaging. Here, an

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 STATE EX REL. ADEL V. HON. ADLEMAN/BEASLEY
Opinion of the Court

unlawful interference with the attorney-client relationship is manifest if the
MCSO jail’s policies, or other circumstances like a global pandemic,
effectively restricted inmates’ communication with counsel to merely non-
privileged tablet text messaging. In this event, Beasley could not have
waived his attorney-client privilege, and the State would not be entitled to
discover any of the texts, absent establishing an exception to the privilege.
Id.

¶25 On remand, we urge the trial court to make a finding
concerning the inmates’ access to the legal phone or other methods of
privileged communication during the pandemic to ensure that jail policies
did not impermissibly interfere with Beasley’s ability to confidentially
communicate with counsel in light of Clements.

CONCLUSION

¶26 We vacate the trial court’s ruling that all of Beasley’s texts
with his defense team are privileged, reverse the court of appeals’ decision,
and remand to the trial court to redetermine the existence of the attorney-
client privilege for the disputed texts consistent with this opinion and
Clements.

¶27 We defer to the trial court on remand to consider, if necessary,
whether in light of the State’s withdrawal of its notice to seek the death
penalty—which obviated the State’s stated justification for its procurement
via subpoena of Beasley’s texts to refute his claimed intellectual disability—
the privilege issue is moot.

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