RENDERED: SEPTEMBER 24, 2020

E PUBLISHED 

# FIN

2020-SC-0243-OA

JAMES MALLORY PETITIONER

V. IN THE SUPREME COURT

HONORABLE SUSAN SCHULTZ-GIBSON, RESPONDENT

JUDGE, JEFFERSON CIRCUIT COURT

AND

COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST

MEMORANDUM OPINION OP THE COURT

DENYING WRITS OF PROHIBITION AND MANDAMUS

James Mallory was indicted by a Jefferson County Grand Jury in 2012

on charges of murder and first-degree burglary; and the Commonwealth filed a

notice of aggravating circumstances, allowing for enhanced penalties if

convicted, including the death penalty. He has remained in the custody of the

jail operated by Louisville Metro Department of Corrections as he awaits trial

on these charges. He has applied to this Court for writs disqualifying the

Jefferson County Commonwealth ’ s Attorney from prosecuting him and Judge

Susan Schultz-Gibson from presiding in his case. For the reasons explained

below, we decline to issue the requested writs.

1I. FACTS AND PROCEDURAL BACKGROUND

Several attorneys have represented Mallory during the pendency of the

indictment. His current counsel were appointed in November 2018. Two

months after appointment, current counsel learned that jail calls made by

Mallory to them and to the defense investigator had been inadvertently

recorded by the jail because current counsel failed to register with the thirdparty contractor providing a private-line telephone service for confidential

attorney-client communications.

As early as November 2017, an intern at the Jefferson County

Commonwealth ’ s Attorney ’ s Office was assigned to listen to the recorded calls

Mallory had made while incarcerated. That office was unaware at the time that

the recordings in their possession contained some potentially privileged

communications. It was not until the intern had listened to most of the calls

that the office became aware of the recorded communications between Mallory

and his counsel and investigator. Once aware of the privileged calls, the

assigned prosecutor alerted defense counsel and screened the intern from the

case and the attorney associated with the case.

Contending that the Commonwealth ’ s possession of recordings of

privileged communications violated his Sixth Amendment right to counsel and

constituted gross prosecutorial misconduct, Mallory moved the trial court to

dismiss the indictment or to disqualify the Commonwealth ’ s Attorney ’ s Office

and to exclude the death penalty as a sentencing option. The trial court

conducted a hearing on the motion followed by an in-camera review of the

2recordings and notes taken by the intern. The trial court issued findings of

fact, conclusions of law, and an order denying the requested relief.

The trial court found that the jail ’ s phone system automatically inserted

two prerecorded warnings in each call. The first warning heard by the caller

states:

This is not a protected or privileged phone call. This call is subject to

recording and monitoring. You may hear silence during the acceptance

of your call. Please continue to hold.

After the call goes through and the recipient picks up, both parties hear the

following message:

Hello. This is a prepaid collect call from (inmate says his/her name), an

inmate at Louisville Metro Hall of Justice. This call is subject to

recording and monitoring and your location information may be collected

and used by law enforcement personnel. To accept charges, press “ 1. ” To

refuse charges, press “ 2. ”

The trial court found these warnings audible on all recordings reviewed in

camera.

The trial court found that the intern accessed three recorded

conversations between Mallory and counsel on November 24, 28, and 30, 2018.

The trial court reviewed in camera the content of those calls and any intern

notes. The trial court also reviewed in camera multiple calls between Mallory

and the investigator over the time span of June 11, 2018, to January 6, 2019.

The trial court ruled that because Mallory was twice notified at the outset

that each of the calls was recorded and subject to monitoring he waived any

claims that the communications were privileged. Further, the trial court

concluded that no prejudice resulted, even if the privilege was not waived. The

trial court further found the Commonwealth ’ s Attorney ’ s Office had taken no

3affirmative action to interfere with the attorney-client relationship, so

disqualification of the office was unnecessary.

Mallory argues a writ disqualifying the Commonwealth ’ s Attorney is

necessary to prevent irreparable harm because these intercepted privileged

communications reveal trial strategy resulting in actual prejudice. The

Commonwealth ’ s Attorney responds that Mallory waived his privilege, no actual

prejudice has resulted, and that a writ is not the appropriate remedy. Mallory

further requests a writ disqualifying Judge Gibson because the information she

learned during the in-camera review of the recordings and the intern ’ s notes

precludes her from presiding over his trial with impartially.

II. ANALYSIS

A. Writ to Disqualify Commonwealth ’ s Attorney is Declined.

1. A review of Mallory ’ s claim of error is necessary in the interests

of judicial administration.

Writs of prohibition are extraordinary in nature and should only be

issued when “ absolutely necessary. ” 1

A writ of prohibition may be granted upon a showing that (1) the

lower court is proceeding or is about to proceed outside of its

jurisdiction and there is no remedy through an application to an

intermediate court; or (2) that the lower court is acting or is about

to act erroneously, although within its jurisdiction, and there exists

no adequate remedy by appeal or otherwise and great injustice and

irreparable injury will result if the petition is not granted. 2

1 Coxv. Braden, 266 S.W.3d 792, 795 (Ky. 2008).

2 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

4Further, a writ of prohibition may be necessary in exceptional circumstances to

prevent irreparable harm to the administration of justice. 3

Mallory acknowledges that the trial court acted within its jurisdiction but

argues that it did so erroneously. A writ of prohibition will only be an

appropriate remedy if there is no “ otherwise adequate remedy ” to correct

irreparable harm, or such exceptional circumstances exist to justify the remedy

in the interest of administering justice. A trial court ’ s failure to disqualify the

prosecuting attorney may be reviewed for an abuse of discretion on direct

appeal after the trial. 4 Because Mallory has other adequate remedies available,

a writ of prohibition would ordinarily be denied. 5

In certain rare circumstances, although an “ otherwise adequate remedy ”

exists, a writ of prohibition may be issued to prevent extraordinary harm to the

administration of

justice. 6 For example, in Hoskins v. Maricle, the trial court ’ s

potential error in rejecting Hoskins ’ s plea agreements could be remedied by

3 Id. at 20.

4 Ward v. Commonwealth, 587 S.W.3d 312, 319 (Ky. 2019).

5 The Court notes the distinguishing facts in this case that make an original

action in this court appropriate. Under Ky. Const. 110 (2)(a) “ The Supreme Court shall

have appellate jurisdiction only, except it shall have the power to issue all writs

necessary in aid of its appellate jurisdiction, or the complete determination of any

cause, or as may be required to exercise control of the Court of Justice. ” Additionally,

under Ky. Const. 110 (2)(b) “ Appeals from a judgment of the Circuit Court imposing a

sentence of death or life imprisonment or imprisonment for twenty years or more shall

be taken directly to the Supreme Court. In all other cases, criminal and civil, the

Supreme Court shall exercise appellate jurisdiction as provided by its rules. ” Mallory

is potentially facing the death penalty. If he is convicted, and appeals, this Court

would review any error in the trial court ’ s decision to deny his motion. Therefore, the

circumstances of this case are unique and should be considered in deciding to review

for potential error. See Hoskins, 150 S.W.3d at 18-20.

6 Id. at 19-20.

5appeal, but the Hoskins court proceeded to review the merits of Hoskins ’ s

claims of error because if there was error in the trial court ’ s ruling, Hoskins

would be unnecessarily subjected to a second trial for double murder with

possible sentences of death and a lengthy appeal. 7 The Court concluded that

“ such would constitute a miscarriage of justice and disrupt the orderly

administration of

justice. ” 8

We will consider Mallory ’ s claim of error because his circumstances are

like those in Hoskins: Mallory faces potential capital punishment, the case has

been ongoing for eight years, and if the trial court erred in failing to disqualify

the Commonwealth ’ s Attorney, a second trial and subsequent appeal would

likely occur.

2. The trial court did not err in denying Mallory ’ s motion to

disqualify the Commonwealth ’ s Attorney ’ s Office.

We find that the trial court did not abuse its discretion in denying

Mallory ’ s disqualification motion. The trial court may disqualify any

prosecuting attorney “ upon a showing of actual prejudice. ” 9 And on appeal,

the lower court ’ s decision is reviewed for abuse of discretion and will be upheld

unless arbitrary, unreasonable, unfair, or unsupported by sound legal

principles. 10

The current circumstances are like those in Ward v. Commonwealth

where we found no per se rule of prejudice to a defendant in a case in which

7 Id. at 20.

8 Id.

9 Ward, 587 S.W.3d at 318-19.

10 Id. at 319.

6staff in the Commonwealth ’ s Attorney ’ s Office reviewed recordings of privileged

attorney-client phone calls made by the defendant from the jail. 11 The

defendant must show actual prejudice resulting from an affirmative action by

the prosecutor to obtain the information or the dissemination of trial strategy. 12

Significantly, inadvertent disclosures of attorney-client conversations that do

not reveal trial strategy result in no actual prejudice to the defendant. 13

Therefore, the Court upheld the trial court ’ s decision to deny the defendant ’ s

motion to disqualify the Commonwealth ’ s Attorney ’ s Office. 14

Additionally, when remedial actions are taken after the disclosures are

made, the risk of actual prejudice to the defendant is diminished. In Ward,

even though the rest of the office was not disqualified, the court recommended

that the attorney who actually heard a portion of the privileged calls should

have recused himself from the case. 15 And Calhoun v. Commonwealth held that

when the conflicted party is timely and properly screened from the case, it was

not an abuse of discretion to allow the rest of the office to continue prosecuting

the case. 16 As such, it was not an abuse of discretion for the trial court to deny

disqualification of the entire Commonwealth ’ s Attorney ’ s Office.

Here, the trial court conducted an in camera review of the potentially

privileged phone calls and the notes taken from the phone calls. The trial court

11 Id. at 325.

12 Id.

13 Id.

14 Id.

15 Id. at 326.

16 492 S.W.3d 132, 138 (Ky. 2016).

7found that the only relevant information the calls revealed was that the defense

was working with an investigator. And after the prosecuting attorney became

aware that these potentially privileged communications had been overheard,

the intern who had listened to the phone calls was screened from everyone else

in the office working on the case.

The trial court further found the defendant had waived his attorneyclient privilege for the phone calls to defense counsel and the investigator. The

court ruled that because the Defendant had received two automated voice

notifications that the calls were being monitored and recorded before the

conversation began, the communications were not confidential. Kentucky Rule

of Evidence (KRE) 503 states that the attorney-client privilege applies to

confidential communications made to facilitate legal services between the client

and the lawyer, or representative of the lawyer. Importantly, the privilege only

applies to “ confidential communications, ” and the burden is on the privilege

claiming party to show the communication is protected. 17 The defendant did

not present any evidence to rebut the effectiveness of the dual warnings

preceding each phone call to the effect that the calls were monitored and

recorded. The trial court ’ s determination that the claim of privilege had been

waived was not an abuse of discretion.

Additionally, the trial court found

— in addition to her finding of waiver

—

no prejudice resulted from the Commonwealth ’ s Attorney ’ s Office hearing

17 Tabor v. Commonwealth, 625 S.W.2d 571, 572 (1981) ( “ Four fundamental

conditions are recognized as necessary to the establishment of a privilege against the

disclosure of communications [including that] the communications must originate in a

confidence that they will not be disclosed

.... ” ) (citing St. Luke Hospital., Inc. v

. Kopowski, 160 S.W.3d 771, 775 (Ky. 2005)).

8Mallory ’ s conversations with Defense counsel because no trial strategy had

been revealed. As discussed in Ward, prejudice may arise when the

government improperly obtains information concerning trial strategy because it

results in a violation of the defendant ’ s Sixth Amendment right to counsel. 18

But for such a violation to occur, the prosecutor must take some affirmative

action to interfere with the attorney-client relationship. 19

In the current matter, the information was obtained inadvertently

through defense counsel ’ s failure to register for the secure line. Importantly,

the trial court found no evidence that trial strategy was revealed. While the

Commonwealth ’ s knowledge that the defense has hired an investigator reveals

trial preparation, that knowledge did not provide any insight into trial strategy.

The trial court found that the phone calls contained no discussion of witnesses,

defense strategy, testimony, or anything that could be used to the detriment of

the defendant at trial. Additionally, the intern who listened to the phone calls

was screened from the case after it was realized the communications were

privileged. This further diminished the risk that privileged information would

continue to be disseminated and that prejudice would result. 20 So, like in

Ward, it was not an abuse of discretion for the trial court to deny the motion to

disqualify the Commonwealth Attorney ’ s Office as no actual prejudice has been

shown.

18 Ward, 587 S.W.3d at 325.

19 Id. at 323.

20 Calhoun, 492 S.W.3d at 138.

9B. Writ to Disqualify the Trial Judge is Declined.

Mallory requests a writ to disqualify Judge Gibson because she reviewed

the potentially privileged phone calls and notes in question. We decline to

issue this writ.

Recusal motions may be made under KRS 26A.020. 21 A defendant may

file, either one or both, a motion with the trial judge or an affidavit with the

circuit clerk for the Chief Justice to review and determine if disqualification of

the regular judge is necessary. Mallory has followed neither process, so an

otherwise adequate remedy exists in the law.

III. CONCLUSION

For these reasons, Mallory ’ s application for writs disqualifying the

Jefferson County Commonwealth ’ s Attorney from prosecuting him and Judge

Susan Schultz-Gibson from presiding over his case is denied.

All sitting. All concur.

COUNSEL FOR PETITIONER:

Eric G. Eckes

Pinales Stachler Young & Burre Co., LPA

Gregory Edward James Coulson

Coulson Law Offices, PLLC

Honorable Susan Schultz-Gibson, Judge

Jefferson County Circuit Court

21 Our Supreme Court has held KRS 26A.020 to be an unconstitutional

“ encroachment by the legislature on the power of the judiciary to make rules. ” Foster

v. Overstreet, 905 S.W.2d 504, 506 (Ky. 1995). But because it is a “ ‘ statutorily

acceptable ’ substitute for current judicially mandated procedures!,] ” the Court “ out of

deference and respect ” extended comity to the legislature. Id. at 507.

10COUNSEL FOR REAL PARTY IN INTEREST, COMMONWEALTH OF

KENTUCKY:

Daniel Jay Cameron

Attorney General of Kentucky

Madison Ann Shoffner

Assistant Attorney General

Jeanne Deborah Anderson

Special Assistant Attorney General

11