James v. USA

Filing 16

MEMORANDUM AND ORDER, granting 15 MOTION for Order toAuthorizing Criminal Defense Attorney To Provide Written Response filed by USA. Signed by Judge J. Phil Gilbert on 3/13/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEKAL T. JAMES,
Petitioner,
Civil Case No. 3:17-cv-00537-JPG
--Criminal Case No. 07-40006-JPG-004

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM & ORDER
J. PHIL GILBERT, DISTRICT JUDGE
Before the Court is the Government’s Motion for Order Authorizing Criminal Defense
Attorney to Provide Written Response. (Doc. 15.) Previously, this Court found that petitioner’s
§2255 motion raised allegations of ineffective assistance of counsel and ordered the Government
to respond. Petitioner was represented by Melissa Day with respect to the allegations in the
§2255 motion.
In light of the Seventh Circuit’s decision in United States v. Evans, 113 F.3d 1457 (7th
Cir. 1997), an order from the Court specifically finding that petitioner’s allegations have waived
the otherwise applicable attorney/client privilege and authorizing Mrs. Day to respond is
necessary. In Evans, the Seventh Circuit noted that the “most prudent course” for a defense
attorney to take before disclosing confidential communications and other information—even if
they attorney believed that a waiver of the privilege had clearly occurred—is to secure an
administrative or judicial determination that the disclosure would not violate the attorney client
privilege. Id. at 1468.

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IT IS ORDERED that the Government’s motion be and is hereby GRANTED. The
Court FINDS that petitioner’s allegations of ineffective assistance of counsel on the part of Mrs.
Day operate as a waiver of the attorney/client privilege as to those allegations.
IT IS FURTHER ORDERED that Mrs. Day is authorized to provide a response
addressing petitioner’s allegations of ineffective assistance of counsel in petitioner’s §2255
motion.
IT IS SO ORDERED.
DATED: MARCH 13, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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