Defense Attorney Ordered To Testify Against Client Federal Judge’s Ruling Worries Northwest Lawyers

A Spokane defense attorney must testify as a prosecution witness against her client, a federal judge ruled Thursday.

If attorney Mary Schultz refuses to testify, she could be found in contempt of court and sent to jail.

“There really isn’t a choice for me here,” Schultz said after the ruling, stopping just short of saying she won’t answer questions if put on the witness stand.

“Those of us who participate in a commitment of trust have an obligation to those people who place their trust in us,” Schultz said outside the courtroom.

The ruling by U.S. District Judge Frem Nielsen drew concern from defense lawyers throughout the Northwest.

Federal prosecutors want to ask Schultz if she told her client, Steven W. Hell, when to appear in court in 1993 to face drug and money-laundering charges.

Released from jail, the 35-year-old Snohomish, Wash., man didn’t show up for a pre-trial hearing and his trial in January 1993, in U.S. District Court in Spokane.

He subsequently was indicted on a federal charge of failure to appear in court. He was arrested in December 1993 in Milwaukee.

Hell is scheduled to stand trial Jan. 25 in Spokane on the failure-to-appear charge.

A separate trial for the more significant drug charges, contained in a 57-count indictment, was postponed until appeals dealing with double jeopardy issues are resolved.

Schultz says she can’t ethically represent Hell on the drug charges if she testifies against him in the failure-toappear case.

Nielsen said appeals cases say lawyers telling the clients about court dates is not privileged or protected communication.

The judge did not rule on a government motion seeking to disqualify Schultz from representing Hell on the drug charges.

Spokane attorney Pat Stiley represented Schultz at Thursday’s hearing. Defense attorneys with vested interests in the case nearly filled the courtroom.

Stiley said the judge should quash the subpoena because of its last-minute timing, Hell’s fair-trial rights and “potential bad-faith” by federal prosecutors.

Stiley said in the appeals cases dealing with the same attorney-client privilege issue, the attorneys involved weren’t representing the same client in second trials.

“This case will have an enormous impact on the court and the bar in this community,” Stiley argued.

The judge appointed Spokane attorney Donald Hackney to represent Hell on the failure-to-appear case.

Hackney said he would talk with Schultz and Stiley before deciding whether to file an emergency appeal of Nielsen’s ruling.

To prove the prosecution’s bailjumping case, Assistant U.S. Attorney Greg Shogren decided he needed Schultz as a witness against Hell, the client she was appointed to defend.

Shogren said he got permission to subpoena the defense attorney from U.S. Attorney Jim Connelly and ranking officials of the Justice Department in Washington, D.C.

The prosecutor wants to show that Hell was given the court date by his attorney and intentionally didn’t show up.

Shogren said testimony from Schultz is needed because of an appeals court ruling in the case against white separatist Randy Weaver. He also faced federal charges of failing to appear in court.

“The government must prove the defendant had notice to appear in court,” Shogren said. “Only one person knows if that was communicated to Mr. Hell, and that is Ms. Schultz.”

Defense lawyers in federal court are told to tell their clients, who are released prior to trial, when to show up.

“I’m concerned that the defense bar is now being put in the position of being potential witnesses against their clients,” said Judy Clarke, federal defender for Eastern Washington.