LITTLE ROCK — The state Supreme Court ruled Thursday that if Joe Lester Cantrell wants to claim his attorney was ineffective as grounds for a new trial, he will have to waive his attorney-client privilege.
Cantrell did not do that, objecting to portions of his lawyer’s testimony during a circuit-court hearing.
Though Perry County Circuit Court sustained that objection and decided Cantrell’s lawyer had been “deficient,” the Supreme Court disagreed. It overturned the lower court’s ruling that granted Cantrell a new trial and sent the case back to circuit court.
In the Supreme Court’s ruling, Justice Karen Baker wrote that Cantrell was trying to use attorney-client privilege as “both a shield and a sword” — making allegations about his attorney in order to obtain a new trial, but not allowing her to have an opportunity to fully defend herself.
Cantrell was convicted and sentenced to 156 years for multiple crimes relating to “manufacturing” methamphetamine and failure to appear.
He appealed his conviction, and the conviction was upheld.
He then filed a petition under Rule 37.1, detailing 17 instances of “deficient performance” by his attorneys in the pretrial investigation, plea offer negotiations, trial and direct appeal.
Cantrell said Margaret Egan, who represented him in his original trial, and Clint Miller, who represented him during his appeal, were ineffective.
At the beginning of the circuit-court hearing, Betsy Johnston, a deputy public defender first assigned to Cantrell, argued that she could not be made to testify because of attorney-client privilege, since she was not being accused of being ineffective. Cantrell refused to waive the privilege and the court agreed, granting Johnston’s motion to quash a subpoena issued for her testimony.
While Egan was being cross-examined by the state, Cantrell claimed attorney-client privilege, and the circuit court said Egan could not testify about any conversations she had with Johnston about the case, any conversations she had with Cantrell mentioning communications with Johnston and another attorney.
The circuit court found that Egan was ineffective, and that the outcome of Cantrell’s trial “may” have been different if those errors had not been made. Cantrell was granted a new trial.
In the Supreme Court’s ruling, Baker wrote that Cantrell must waive the privilege if he wants to litigate his claim.
“By filing the petition, he put in controversy the professional conduct of counsel, and as a condition of pursuing that petition, he must waive all attorney-client privilege with respect to the issues raised in the petition,” the Supreme Court said.
If Cantrell refuses to waive the privilege, his petition should be dismissed by the circuit court, Baker wrote.
At the Supreme Court, the case is CR10-934, State v. Joe Lester Cantrell.
Arkansas, Pages 20 on 10/30/2011