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Local Murder Case Could Be Thrown Out After Prosecution's Mistake

BOSTON (AP) — Murder charges against a Massachusetts man accused of stabbing another man after a brief altercation could be dismissed because prosecutors allowed a grand jury to hear a confidential conversation between him and his lawyer.

The conversation was recorded while Jonathan Niemic, 23, was in a Dartmouth county jail and talking on the phone with his lawyer, Robert Griffin. The recording was played to the grand jury that later indicted Niemic.

Now Griffin is asking a judge to throw out the murder case against Niemic, who is accused of stabbing 34-year-old Michael Correia of Fairhaven after the two men had a brief argument and fistfight. Griffin argues that giving the grand jury the recording violates the sacrosanct legal principle of attorney-client privilege and amounts to "egregious prosecution misconduct."

The blunder by prosecutors has created a buzz in the state's legal community.

"This is the most hallowed aspect of our criminal justice system. If you cannot have a conversation with your lawyer that you know is going to be privileged, then the entire system falls apart," said Christopher Dearborn, a professor at Suffolk University Law School.

Most telephone conversations in Massachusetts jails are recorded, with the exception of conversations between lawyers and their clients. Bristol County Sheriff Thomas Hodgson, who runs the jail where Niemic was being held, said the recording system automatically shuts off when it recognizes the phone number of an attorney.

The sheriff's office keeps a list of about 15,000 telephone numbers developed from the Massachusetts directory of lawyers.

But in Niemic's case, his lawyer's phone number was not in the system, so the call was inadvertently recorded, Bristol District Attorney Sam Sutter said. He said Griffin did not give to the sheriff's office the phone number he gave to Niemic, so the system did not recognize it and recorded the conversation.

"It was an accident. It was unintentional. It was inadvertent," Sutter said. "We would never want to introduce a conversation between a lawyer and his client."

Neither Sutter nor Niemic's lawyer have said whether anything significant was disclosed during the conversation.

Sutter said all parties to jail conversations are warned through a recording that calls are being monitored and recorded, and he does not understand how Griffin could not know the call was being recorded.

Sutter's explanation has not appeased critics, who are supporting Griffin's call for the murder case to be dismissed.

"It is totally improper for a prosecutor to introduce evidence of attorney-client conversations as they did. I dare say that a second-year law student would know that it was improper," said Edward Ryan Jr., a defense lawyer and former president of the Massachusetts Bar Association.

"There is simply no excuse for an allegedly experienced prosecutor doing that," Ryan said.

Assistant District Attorney Aaron Strojny, who submitted a compact disc with the conversation on it to the grand jury, did not return a call seeking comment.

Griffin, a former state prosecutor, also did not return calls seeking comment. In a motion filed in court, Griffin asked a judge to dismiss the murder charge "with prejudice," meaning prosecutors would be barred from seeking a new indictment against Niemic in Correia's death.

"The conduct of the prosecution in this case was so egregious and prejudicial to the defendant so as to warrant dismissal of the charge now pending against him," Griffin said in his motion.

Dearborn said it doesn't matter how the phone call got in front of the grand jury.

"This was clearly an enormous error by the prosecutor, and the problem is — whether it's misfeasance or malfeasance — it shouldn't matter at some point," he said. "The standard we hold our prosecutors to has to be high enough that they when they undermine the attorney-client privilege to the extent it happened in this case, there has to be an appropriate remedy."

Sutter said that because of the jail's policy of not recording attorney-client phone calls, Strojny "had no reason to think there was an attorney-client call on that CD."

"Should the prosecutor have listened to that CD before marking it as an exhibit — yes," Sutter said. "Were there mitigating circumstances? I think there were."

A hearing on the motion is scheduled for March 28.

Copyright 2012 The Associated Press.

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