Friday, July 17, 2009

Can a Judge Forbid a Party From Showing Documents To Her Attorney?

Many people have posted regarding the motion for temporary restraining order in the Complaint filed by Leisha Pickering against Elizabeth Creekmore Byrd. The question is asked, "can a judge forbid a party from showing documents to her attorney?" It is alleged in Mrs. Pickering's Complaint that the judge in her divorce case entered such an order.


Oddly enough, we have encountered this issue before. Our research turned up the case In re ECP, 918 So. 2d 809, 826-27 (Miss. App. 2005). That was an unusual case, because ECP was the child in a custody case, and the child had her own attorney. The Chancellor in that case, Sarah Springer, ordered the attorney not to show court documents to his client ECP and not to communicate with ECP about the case. (The case was doubly unusual for us, because Judge Springer had issued, in the case we were handling, a similar gag order, although the client was not a minor. Judge Springer was ultimately defeated for re-election by ECP's attorney, Larry Primeaux of Meridian.)


The Court of Appeals made clear that such an order violated ECP's right of access to the courts, guaranteed by Article III, Sect. 25, of the Mississippi Constitution. A party must be able to communicate the facts, and show relevant documents, to his or her attorney in order to have meaningful access to the courts. Because of this, although the Chancellor claimed the order was meant to protect the child's interests, the Appeals Court said it was invalid. (That ruling was not technically "reversed" because it had been rescinded by agreement while the appeal was pending.)


Because the Pickering v Pickering file is sealed, I don't claim to know whether the order complained of in the Pickering v Creekmore-Byrd Complaint is erroneous. But if the ECP order, meant to protect a child's innocence, is unconstitutional, it is clear that there would have to be a very strong justification for such an order to be valid.

Here is the ECP case for your review:

http://www.scribd.com/doc/17444550/In-re-ECP-Miss-App-2005

22 comments:

Casey Ann said...

I got the impression from reading the complaint that she may have come by those documents through illegal means - like maybe stealing them. If that were true, could the Judge then forbid a party from showing them to her attorney?

Anonymous said...

A married man who would keep documentation on an affair is like a raptist who keeps the panties. Sicko not dumbo, and it appears the Judge is trying to please Chip, and I hope this has already been reported to the JP.

nmisscommenter said...

I've recently looked at this practice of sealing cases. I ended up not fighting, to get the case settled in my client's interest, but...

There's a statute about the public nature of court file. And there's an open records act. And there is nothing I've ever seen in the code (or cases) that justifies this practice of sealing files. And there are really good reasons involving the way it makes courts honest to allow public scrutiny.

The more I look at these sealing practices, including in domestic cases, the more I think it stinks. Sealing some financial info (the stuff in an 8.05 form) I've no problem with, but presumptively sealing a whole divorce, or sealing any other case I've a real problem with.

I mean, what exactly is hiding in the clerk's papers in Eaton v. Frisby that I"m not allowed to see?

Kingfish said...

I disagree. The Ware case is a PERFECT example of why some cases should be sealed and it was at the trial court level. Mr. Ware has children. Now in the days of facebook and internet it only takes some 14 year old geek who got turned down for a date to go dig up that case online and instantly put it out all over the net and really harm those kids. Was my need to read about the couple swapping and Stuart Irby's affair with Patti greater than those kids' right to be protected from as much harm as possible from a divorce case, which is SUPPOSED to look out for their best interests? No.

Anonymous said...

I went to a CLE where Judge Brewer spoke. I thought I'd wandered into a bible study. In my experience, Judges who constantly refer to the bible are usually bad judges.

stilettoGOP said...

Sealing cases in an effort to 'keep the courts honest'..? Please. What happens under the table STAYS under the table, sealed case or not. Criminal, should be open; domestic, seal. Same reason it's closed courtroom when there's a minor involved in a custody hearing. So close the courtROOM but keep the case open for the web?

I agree with KF, protect the kids involved, that's more important than what the "public's" scrutiny is on a case. Majority of the public is stupid anway.

Matt Eichelberger said...

Stiletto @ 10:54, I find your proposal interesting. All domestic cases sealed; all criminal cases open? What's your reasoning on that?

stilettoGOP said...

Criminals ask for it. Call them out while informing the public for safety reasons at the same time. Domestics involve the innocent usually. So why exploit it? just the way my mind works.

Jim Craig said...

I think some few cases can and should be sealed from the general public. But that is separate from what the TRO was about. Sealed cases keep the public from getting information from the court files and proceedings. But the TRO alleges that the chancellor prohibited Leisha Pickering from showing the diary to her own attorney. That is something very different.

But there is, in my view, a potential problem with a gag order or sealed proceedings even in a divorce case. The light of day tends to prevent flagrant abuses of justice.

That was the situation in a case previously discussed on this blog. Chancellor Springer, after issuing a gag order on the case, then proceeded to some of the most one-sided, irrational, and indefensible rulings I've ever seen. I doubt she would have done so if my clients could have publically exposed the court's refusal to protect the abuse victim.

Anonymous said...

There is just so many pro's and con's about putting divorce cases underseal I can't make a clear decision. I would venture to say that 99.9% of the time it's to cover up bad behavior by adults that has nothing to do with children.

Jim Craig said...

Casey Ann, I don't see how one spouse could "steal" something from another. Isn't it all joint property?

stilettoGOP said...

If it's after a separation of property has been filed, then yes, couldn't it be considered 'stolen'? Or is it that the documents were mutual since they were written during the marriage?? My point is that say there's a seperation of property. His truck being his property for ex. And say she took it out of the truck after the sep of prop. agreement. Then it's not obtained legally..? am I right?

Anonymous said...

Jim, That's just what I was thinking. To me all of this has come to light because Elisha was being taken advangage of not only by Chip but the Court System.
We will now see what the documents are actually worth to Pickering and his lover.

Matt Eichelberger said...

Stiletto, I think both criminal and domestic cases would involve the innocent and those who "ask for it." For instance, I'm certain the families of both decedents and the extended Irby family would rather not see and hear repeated coverage of that incident. Just as I'm sure Chip Pickering would like for this to stop. In the first case, Karen Irby allegedly "asked for it." In the second case Chip allegedly did as well.

That being said, I'm in full agreement with Jim on this issue. Open court files allow the citizenry to alert themselves to unfriendly areas, be they parts of town (crime stats) or courtrooms (as Leisha alleges here). More importantly, it allows us, the people, the ability to keep the powerful in check.

And on that, Stiletto, I think you and I would agree. (X-ref the aforementioned Irby case, and Kingfish's coverage of it. Not that I necessarily disagree with the handling of that case by the Hinds County justice system.)

One more thing - For Judge Brewer's sake, I hope the Pickering v. Creekmore file doesn't get sealed now. If it does, we'll never get an explanation as to why she ruled the way she did, and speculation about her motives will abound. I'm sure there was a good reason for her ruling, and she deserves to have the public hear it.

Anonymous said...

Elisha Pickering didn't want to file this complaint, but she had no choice. Like the other poster just said, now let's see what getting his journal back is worth to Chip and his lover. Think about it. It is a history of his affair of seven years-times, dates, places, gifts, thoughts, etc. OMG. No wonder he is doing everything possible to get it back and be sure no one has a copy of it. Sounds pretty sick to me that a man with a family of five small sons would ever, ever do anything let alone write it down.

stilettoGOP said...

I do mostly agree with you, Matt. But I think I'm being missunderstood a bit on my point to seal or not to seal, criminal vs domestic. There's no blanket 'seal rule' or perfect answer. Depends on the case unfortunately. I see your points though.

Re: the Pickering documents.. damn, I mean what the hell happened there? I still say (based on the verbage The Court used in the transcripts) that Mrs Pickering obtainted them by inadmissible means, so that part, at least, didn't really sound like judicial monkey business if that is indeed how they were obtained. And I'm still wondering if a separation of property order is perhaps the root of why she apparently has to forget she ever saw it (but a year ago? when did they file?) and if she still speaks with new counsel about it anyway, then isn't THAT attny/client priv?.. So many questions. Will be interesting to watch..NOT sealed ;)

Anonymous said...

Maybe she took the documents from his Congressional office and he's claimed speech and debate clause privilege.

Anonymous said...

Or maybe she found some of his journals/notes in her own home or in his briefcase. I don't see her going through his Congressional Office finding them. Chip Pickering had been seeing his mistress, Beth Byrd, for over seven years. I say he probably never thought he would be caught and got careless. After all you can bet for years he had been turning his "other" cell phone to silent while around his family. The one time he didn't, his mistress happened to call, his wife found the phone, and you can bet she knew when she saw "Cellular South" written on it. A smart woman would not confront her husband until she had more information. I think all of her information about his mistress following them on the family trip to Colorado, the gifts, the job, and no telling what else came directly from the journals she found.

Hmmmmm . . . . . said...

What if, subsequent to their separation, the documents were taken without permission from Mr. Pickering's separate residence, including not only his journals and calendars, but also his copies of work papers related to their divorce proceedings? Wouldn't that mean some were privileged and others were improperly obtained? Would that explain attorney Johnson's actions (which sound absolutely proper) and Judge Brewer's ruling???

Jim Craig said...

Hmmmm: We're all just guessing at this point. Those would be compelling facts for a protective order, or an order to return documents. I don't quite see how it justifies a ban on a party talking to her own attorney about them. It seems to me that -- assuming Mr. Pickering's rights were violated in the way Mrs. Pickering obtained the documents -- that would be even stronger grounds for her to be able to talk to her attorney about it. Otherwise, how will she defend any possible criminal or contempt charges?

Anonymous said...

I am wondering how could Mrs. Pickering have gotten the journals/notes that would cause Mr. Pickering's rights to be violated?

Anonymous said...

What if Mrs Pickerings father in law was a prominent judge and a friend of Judge Brewer? Would that be a reason Judge Brewer would say The Golden Boy's "perfect love" evidence must be returned to him? How far would they go to discredit his wife? Would Judge Pickering create a 14 page document? Why would Pickering need 5 attorneys and why would he file for dismissal of Leisha's pathetic and cowardly little "I've never been dismissed before so I withdraw" lawyer? Why would the judge refuse to allow Leisha continuance to seek a new attorney? Why would Leisha be cross examined by 3 of Pickerings attorneys without counsel???