Judge: Prosecutors can look through text messages of attorney accused of sexual assault
Nader Nassif
Courtesy of WCSO
After roughly three hours of arguments from attorneys on Thursday, Judge J. Cedric Simpson dismissed a defense motion that would have essentially prevented prosecutors from looking at certain text messages sent and received by Nader Nassif, the Ann Arbor attorney and former Downtown Development Authority board member accused of sexual assault.
Lawyer Jill Schinske and lead defense attorney Joe Simon argued that there is correspondence on the iPhone seized by police between Nassif and hundreds of clients that could be used by the prosecutor's office in other cases. The defense said the court should intervene and separate the text messages pertaining to the criminal charge — drug transactions and the sexual assault — and Nassif's work communication.
The defense argued that many of the text messages on the phone are protected by attorney-client privilege and that since the Washtenaw County Prosecutor's Office will be prosecuting many of those clients in the future, it should not have access to the messages.
"This isn't a standard case," Schinske said at the hearing in 14A-1 District Court Thursday. "There is this interconnectedness that is problematic."
Prior to being charged with one count of third-degree criminal sexual conduct, Nassif worked as a defender in Ann Arbor's 15th District Court, where he represented indigent clients.
Simpson ultimately sided with Washtenaw County Chief Assistant Prosecutor Steven Hiller, who pointed out the cell phone was legally seized with a warrant and outlined a procedure for dealing with the voluminous text messages on the cell phone.
The prosecution estimated there were about 8,000 pages of texts to sift through.
Hiller said the text messages are "under lock and key" at the prosecutor's office and that only three people, including himself and Assistant Prosecutor J. Samuel Holtz, have access to them. That team will go through the text messages, separate those pertinent to the criminal case from correspondence with clients. Those that could be used as evidence will be shared with the defense. Any messages protected by attorney-client privilege will be sent to the judge.
"We have no intention of introducing any privileged material in another case," Hiller said.
Simpson agreed to the procedure, though Schinske hinted at an additional complication when she posed a conditional question about a situation in which Nassif engaged in a narcotic exchange with a client.
That issue wasn't further addressed in Thursday's hearing, which is the second to precede Nassif's preliminary examination, still scheduled for Sept. 19. A third pre-preliminary exam hearing was also set for Sept. 12 to address a defense motion to dismiss the Washtenaw County Prosecutor's Office from the case.
Simpson said it would also give the prosecution the chance to update him on progress made with the text messages, adding that one of his biggest concerns was making sure all evidence is shared with the defense in a timely manner before the preliminary examination.
Nassif, a former member of the Ann Arbor Downtown Development Authority board, is facing a third-degree criminal sexual conduct count that indicates the alleged victim in the case was incapacitated and sexual penetration took place. Nassif knew or had “reason to know that the victim was mentally incapacitated and/or physically helpless,” according to the complaint.
The alleged incident took place July 31 in his apartment in the 200 block of South Fourth Avenue. Nassif later resigned from the DDA and is no longer being assigned to cases in the 15th District Court, where his firm, Model Cities Legal Services, is contracted to provide representation.
Ann Arbor police obtained warrants and seized evidence on July 31, Aug. 1 and Aug. 2 including bed sheets, contents from a trash can, an iPhone and computer.
John Counts covers cops and courts for AnnArbor.com. He can be reached at johncounts@annarbor.com or you can follow him on Twitter.
Comments
Greg
Sat, Sep 7, 2013 : 4:11 p.m.
If the rest of the worlds messages can be used against them, his being a layer should not give him special protections. Now if want to make prosecutors sign that they will not use anything applicable to others - that would be reasonable. But this guy deserves no special protections.
PineyWoodsGuy
Sat, Sep 7, 2013 : 8:58 p.m.
Anyone who has clue#1 about law enforcement will know that if those prosecutors find Anything in those 8,000 pages about one of Nassif's clients that is incriminating, they will put it in their tuckerbag and use it, either for leads to other evidence or for impeaching Nassif's client at trial. This discussion is about protecting Nassif's clients; not about protecting Nassif. Get it?
Colorado Sun
Sat, Sep 7, 2013 : 7:19 p.m.
The clients of Nassif deserve protections available under state law applicable to attorney-client communications. If the clients waive the privilege, then there is no problem at all.
Nicholas Urfe
Sat, Sep 7, 2013 : 2:03 p.m.
I still don't understand how a 28 year old like Nassif ends up appointed to the DDA. And then, as Brad points out, the attempted appointment of McWilliams, and the mayor's subsequent withdrawal of his appointment, seems very similar. How about sticking with experienced business people on the DDA?
Colorado Sun
Sat, Sep 7, 2013 : 7:17 p.m.
You are correct. There are dozens of prominent businessman, professors, and company executives who would be itching to serve on the DDA - but Hizzoner wants yes-men. That is likely why Nassif received no-bid six-figure legal services contracts from City Council. They approve his billings and Nassif must walk on eggs for them. McWilliams is an obvious bozo that would be expected to toe the line for Hieftje. City Council wisely gave the Mayor an earful over this clown.
PineyWoodsGuy
Sat, Sep 7, 2013 : 11:41 a.m.
Posted early Saturday morning. I wonder if Aty Nassif's counsel petitioned a Circuit Judge to enjoin the Pros Aty from reading Nassif's iPhone messages? Atys know where judges live. You go up and knock on the door and ask for an Injunction. Have to move quickly because there may have been a crew of Asst Pros Atys working overtime Friday night, burning the Midnight oil to eyeball those 8,000 pages of text. Apparently lawyers and profs at UML do not read aa.com. Sorry to see that most folks seem to take the attitude this is a yawner; it isn't folks . . . historically civil liberties have been lost, one cut at a time. Cut the critter enough and he bleeds to death. Thousand cuts. It ends, not with a bang but a whimper (T.S.Eliot/J. Alfred Prufrock/Hollow Men)
PineyWoodsGuy
Sat, Sep 7, 2013 : 5:16 a.m.
@townspeak. Thank You Brother! Not to disparage some of the other posters, but there are a lot of Littleheads in this world. What we have to look at is the Constitutional protection of the attorney-client relationship. This is So Basic to the Rule of Law in the United States of America that I am Utterly Astounded at the ruling of the District Judge. Just blows me away! By all that is Right and Holy his illegal ruling should be forthwith appealed to a Circuit Judge who is more learned in the law! Permit me to express my surprise at the silence of any poster (except you) in the Learned City of Ann Arbor to Protest the Wrongful Decision of the District Judge! And the Pros Aty should be spanked for presenting such an utterly preposterous motion to the judge that is not bottomed upon the common law nor Constitutional law! Sure, prosecute an alleged miscreant lawyer, but Do Not infringe and tread upon the confidential communication Constitutional right of his other clients. I will be surprised and amazed if the District Judge's Order stands. Shame on both the Judge and the Pros Aty. Go back and read your law books!
PineyWoodsGuy
Sun, Sep 8, 2013 : 3 p.m.
Touché Nick!
Nicholas Urfe
Sun, Sep 8, 2013 : 12:52 p.m.
The latest Pope? I'm not so sure.
PineyWoodsGuy
Sat, Sep 7, 2013 : 9 p.m.
Is the Pope Catholic?
Nicholas Urfe
Sat, Sep 7, 2013 : 2 p.m.
Are you a licensed attorney?
Townspeak
Sat, Sep 7, 2013 : 2:13 a.m.
I firmly agree that the prosecutor should not be the judge of what is and what is not privileged. The court must make findings of the existence or not of any privilege. This should be immediately appealed and the proceedings stayed. How dumb are these prosecutors. So greedy to obtain any evidence of potential criminal conduct that they run the risk of delay and weakening of their own case. This is not about additional crimes per sè, this is a wholesale fishing expedition seeking to expose relationships, take others down potentially. This is a csc case and whatever, if anything, was found that day. Another example of a reckless and dangerous prosecutors office. I wish a judge would have the guts to stand up to these cowboys/outlaws.
Colorado Sun
Sat, Sep 7, 2013 : 7:13 a.m.
Yeah, gamesmanship by Steve Hiller and other bozos handling this case at the Prosecutor's office.
Colorado Sun
Sat, Sep 7, 2013 : 2 a.m.
There was a high-profile individual arrested by the AAPD a few years ago in a highly similar fact situation. No criminal charges filed despite an intense investigation. The case is reported at www.washtenawwatchdogs.com Why were charges filed in this case and not the one reported on by the Washtenaw Watchdogs? Was Nassif's status as an Arab-American a factor in the decision to prosecute? Or his prominence as a DDA member? Is the AAPD and Washtenaw County Prosecutor acting in good faith? What about the "drug investigation" reported upon earlier? How much in overtime compensation is AAPD Detective Monroe getting for this case? He made $126,000.00 in salary and overtime in one recent year. Is that motivating the investigation and multiple search warrants being executed?
Colorado Sun
Sat, Sep 7, 2013 : 7:09 p.m.
@Mike Gatti: I am just wondering how much, if any, overkill is being made to investigate Nassif. You are a former magistrate and know of the BS in police investigations and court cases. The subject of possible "timecard fraud" of a Sheriff's Department employee was covered in the Washtenaw Watchdogs website. I would urge you to review that article.
mike gatti
Sat, Sep 7, 2013 : 12:06 p.m.
Are you insinuating that Detective Monroe didn't work for the pay he received or are you insinuating that Detective Monroe work for free?
ypsicat
Sat, Sep 7, 2013 : 2:57 a.m.
Colorado, sometimes you ask really good questions and then other times, such as this, not so much. I haven't seen any reportage here that would lead a reasonable person to question the motives of the AAPD or the prosecutor's office along racial lines or otherwise. Sometimes, if it looks like a duck and quacks like one, well...
PineyWoodsGuy
Fri, Sep 6, 2013 : 10:18 p.m.
I hope the defense will appeal this Very Wrong Decision by the District Judge! What should be done is this: Prosecution and Defense agree on a neutral third party aty to review the text messages. Posters on this board may snicker, but if you were charged with a crime and texted your defense aty......then your defense aty gets charged with a crime and a District Judge orders the Pros to read thru all the messages on your aty's phone......the court's decision is absolutely Wrong! Sure hope those that respect Constitutional protections will protest this unbelievably wrong decision.
Nicholas Urfe
Sat, Sep 7, 2013 : 1:57 p.m.
This seems completely blown out of proportion. If Nassif is their attorney, they have bigger problems.
The Eyes of Justice Team
Fri, Sep 6, 2013 : 9:17 p.m.
#LuvThePic...
Colorado Sun
Fri, Sep 6, 2013 : 11:43 p.m.
Oh, you mean the one in your avatar showing Nader Nassif in Judge Connors' seat on the bench? Yeah, it's priceless.
Brad
Fri, Sep 6, 2013 : 8:57 p.m.
What a swell DDA appointment that was. The latest near-appointment doesn't seem a lot better. Here's what the mayor said of Al McWilliams: "He's on Main Street. I heard good reviews of him down there," Hieftje said. "He's also another entrepreneur and someone who has a cutting-edge business. He wants to make downtown a place that can attract the talented people he needs to run his business." Now go read the article on A2Politico and see what you think. I'm surprised none of it was reported here. http://bit.ly/15zHx3x
djm12652
Sat, Sep 7, 2013 : 2:02 p.m.
Wow...a2politico is as much a bunch of dummies as any other political rag...all opinion...I find Mr. McWilliams witty remarks as typical a2....yes condescedning in some ways but mainly tongue and cheek...lighten up people! If every poster is so against this, go to the Mayor and volunteer to be on the DDA...major downside is you actually have to talk to him...
Nicholas Urfe
Sat, Sep 7, 2013 : 1:51 p.m.
Thanks Brad. I missed that one. And so did Annarbor.com too. How odd that they apparently chose not to report it.
Ms1215919
Sat, Sep 7, 2013 : 12:09 a.m.
I'm with The Eyes of Justice Team....."the mayor has to go..." & he's got a great urinal....... go ahead, delete my comment. only reporters and their pets are allowed to be vulgar.
Colorado Sun
Fri, Sep 6, 2013 : 11:44 p.m.
The A2politico.com article is awesome.
The Eyes of Justice Team
Fri, Sep 6, 2013 : 9:16 p.m.
This mayor has to go...
Nicholas Urfe
Fri, Sep 6, 2013 : 6:48 p.m.
Thanks for the coverage. How long until the search warrants are unsealed? How long until we get to know the specifics of the drug charges? This is.. high drama.
Kyle Feldscher
Sun, Sep 8, 2013 : 6:19 p.m.
Nicholas - It's 60 days from when they are served. So, it should be at the end of this month.
treetowncartel
Fri, Sep 6, 2013 : 7:42 p.m.
@ Nicholas, No pun intended right? Are you going with Molly or roofies?