Originally created 02/24/03

Man wants attorneys to inform victims of subpoenas



TEGA CAY, S.C. - While Benny Shaw was waiting for the scoutmaster who molested him as a child to go on trial a few years back, he started thinking like a defense attorney.

And when he found out the defendant's lawyer had subpoenaed his Internet and bank records, he fought back in court.

Now, the 34-year-old wants victims everywhere to know their private records can be obtained without them knowing. He also wants banks, Internet providers or other keepers of private records to know they don't have to turn over the information just because a lawyer asks for it.

"I want what they do out in the open," Shaw said. "People should have the right to fight to keep their information private."

Shaw's experience seems to reflect a growing problem in the legal community. When a lawyer subpoenas a private record keeper for information, the document usually only requires a representative of the company to show up in court with the records.

But all too often, companies choose simply to send banking or Internet records to the lawyer directly, said Wendy Murphy, a victims' rights advocate and visiting scholar at Harvard University's law school.

"It's a very serious issue that is bubbling up across the county," Murphy said. "But too often, people are looking for a solution when they get too far into the system."

Shaw tells his story to anyone who will listen. He is trying to get a bill introduced in the Legislature, or get the state Supreme Court to change its rules on criminal subpoenas so they match rules on the civil side of the docket that require each party affected by the subpoena to get a 10-day notice in writing.

Shaw's story starts back in 2000 when he broke years of silence to accuse his former Scoutmaster of molesting him when he was 15.

Eventually, the defendant pleaded no contest to a lesser charge, received probation and was required to register as a sex offender.

But during the time it took to resolve the case, Shaw said he started thinking like a defense lawyer.

First off, he thought what would a defense attorney want to know about him. Bank records and his Internet records, he figured.

So Shaw called his bank, who refused to say if he had been subpoenaed. But a friend at his Internet provider said the lawyer had sought his e-mail records and other information.

Angered, Shaw wanted to know why as a crime victim, he wasn't informed before defense lawyers started poking around to get his private information.

Shaw hired a lawyer after he found out his records were being subpoenaed and a judge forced the defense lawyer to notify Shaw whenever he tried to access records. Shaw and his lawyer could then fight the subpoena in court.

Shaw faults both defense attorneys and prosecutors in Dorchester County. He said in his case, neither side seemed interested in helping him keep his information private.

But legal experts say the records actually belong to the third party, not to the person and therefore it is up to the keeper of the records to decide what to do about the subpoena.

"That's still not right," Shaw said. "I think these companies need to be more responsive to what kind of access they grant other people's information."

Some lawyers suggest a better solution would be reminding lawyers and record keepers of their duties.

"I think most people probably do not realize what there obligations are under the subpoena," said Kevin Brackett, a prosecutor in York County. "I think lawyers should be more careful when they issue subpoenas to make sure they aren't misleading people."

Shaw, who attends York Technical College and wants to become a lawyer, doesn't plan to stop speaking out on the topic any time soon.

He got high marks for a 14-page paper he wrote for one of his classes entitled "Secret Subpoenas: Unfair, Unknown and Un-addressed."

Shaw said he wasn't surprised his assailant's lawyer looked for any information to attack his credibility. He said he was just surprised at how far the attorney was willing to go.

"I expected to be followed - in fact, I was. I expected my friends and neighbors to be interviewed," Shaw said. "I did not expect to use the power of the court to access information they normally could not have gotten."