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State v. Robinson

Superior Court of Delaware

September 19, 2017


          Submitted: August 21, 2017

          Modified: October 17, 2017 [*]

         Upon Defendant's Motion to Dismiss Indictment ORDER ADDRESSING STANDARD AND SCOPE OF COURT REVIEW

          Sean P. Lugg, Esq., Department of Justice, Attorney for the State of Delaware.

          Patrick J. Collins, Esq., Collins & Associates, Attorney for Jacquez Robinson.


          Honorable Andrea L. Rocanelli, Judge.

         On March 2, 2015, Defendant Jacquez Robinson ("Robinson") was indicted on the following charges related to two separate incidences: two counts of Murder First Degree, Robbery First Degree, seven counts of Possession of a Firearm During the Commission of a Felony, Conspiracy Second Degree, two counts of Reckless Endangering First Degree, two counts of Assault First Degree, and other related charges. The charges arose from two separate shooting incidents which allegedly took place on November 25 and November 26 in 2014. The November 25 incident allegedly resulted in serious physical injury to two people ("November 25 Assault"). The November 26 incident allegedly resulted in the death of one person ("November 26 Murder"). The charges related to the November 25 Assault were severed from charges related to the November 26 Murder.[1]

         Trial on the charges related to the November 26 Murder was scheduled to start on July 11, 2017 ("Murder Case"). On June 12, 2017, the Court issued a protective order in the Murder Case ("Murder Protective Order"). By its terms, the Murder Protective Order expired on July 6, 2017. Trial on the charges related to the November 25 Assaults is not scheduled ("Assault Case").

         In addition, Robinson was separately indicted in a multi-defendant case involving alleged gang participation in a gang referenced as the Touch Money Gang ("TMG Case").[2] On August 24, 2016, the Court issued a Protective Order for the TMG Case ("TMG Protective Order") in advance of an October 2016 trial date. The October 2016 trial was continued and a new date has not been set. The TMG Protective Order remains in effect.

         Natalie Woloshin is counsel of record for Robinson ("Robinson's Trial Counsel") in the three pending criminal cases, the Murder Case, the Assault Case, and the TMG Case.

         According to the State, during trial preparation for the Murder Case, prosecutors Mark Denney and John Downs ("Trial Prosecutors") became concerned that Robinson's Trial Counsel had disclosed witness information ("Protected Witness Information") to Robinson.[3] The Trial Prosecutors brought their concerns to the attention of New Castle County Chief Prosecutor Joseph Grubb. An investigation was initiated by the State ("Protective Order Investigation"). Until June 30, 2017, Trial Prosecutors were actively involved in the Protective Order Investigation, including listening to Robinson's phone calls. In addition, Mr. Grubb assigned Chief Special Investigator John Ciritella to the Protective Order Investigation, and authorized Mr. Ciritella to work with the Department of Correction ("DOC").

         The Department of Justice ("DOJ") directed the DOC to conduct a search of Robinson's cell. On June 30, 2017, DOC officials entered Robinson's cell without a warrant and seized Robinson's legal documents.[4] Ciritella examined Robinson's legal documents in a separate room at the prison to determine if the documents contained Protected Witness Information. According to the State, some documents were immediately returned to Robinson while other documents were taken for further review to the DOJ ("DOJ"). At the DOJ, Mr. Ciritella, Mr. Grubb, and paralegal Jamie Prater had access to Robinson's legal documents. Ultimately, the State concluded that none of the legal documents seized contained Protected Witness Information. According to the State, the remainder of Robinson's documents were returned to Robinson on July 7, 2017.

         The State contends that Trial Prosecutors were not involved in the search and seizure and did not review any of Robinson's legal documents. However, Jamie Prater has been identified as a member of the prosecution team.

         Robinson's Trial Counsel filed a motion to dismiss the indictment ("Motion to Dismiss") on behalf of Robinson on July 7, 2017 contending that the search of Robinson's prison cell and seizure by the State of Robinson's legal documents violated his Sixth Amendment rights. Patrick Collins was appointed as Robinson's counsel for presentation of the Motion to Dismiss ("Robinson's Motion Counsel"). The State opposes Robinson's Motion to Dismiss.

         The Motion to Dismiss was originally presented to the Honorable John A. Parkins as the trial judge assigned to the Murder Case. Judge Parkins recused himself from consideration of the Motion to Dismiss, which was assigned to this Judge. The State requested that the Court's proceedings related to the Motion to Dismiss proceed under seal and the Court has honored that request for the time being.


         The threshold dispute between the parties is the applicable standard for evaluating a potential Sixth Amendment violation. There are three separate issues that the Court must consider. First, what is the standard for establishing a Sixth Amendment violation? Second, what is the scope of the inquiry for application of the standard to the facts of this case? Third, if a violation is established, what is the appropriate remedy? This decision addresses the first two questions.

         I. The Standard for Establishing a Sixth Amendment Violation Where the State Has Intruded into the Attorney-Client Relationship

         Addressing intrusion by the state into a defendant's attorney-client relationship, the United States Supreme Court concluded in Weatherford v. Bursey that there must be prejudice to establish a Sixth Amendment violation.[5] Applying Weatherford, the Third Circuit adopted a three-prong test.[6] In addition, in Levy, the Third Circuit adopted a presumption of prejudice approach that applies in one limited circumstance.[7] Moreover, in Morrison, the Third Circuit addressed a deliberate interference with the attorney-client relationship.[8]

         A. Weatherford v. Bursey

         In Weatherford, Brett Bursey and Jack Weatherford were arrested after vandalizing a selective service office.[9] However, Weatherford was an undercover agent who was only arrested to maintain his undercover status.[10] Believing Weatherford to be a co-defendant in the ensuing criminal case, Bursey and his counsel invited Weatherford to attend trial preparation meetings.[11] Although Weatherford attended these meetings, he did not share any information learned during the meetings with his superiors or the prosecution team.[12] However, Weatherford did ultimately testify in the case against Bursey, who was convicted.[13]

         Bursey brought an action against Weatherford asserting that Weatherford's conduct violated Bursey's Sixth Amendment right to counsel as guaranteed to him by the Fourteenth Amendment.[14] The district court found for Weatherford, but the Fourth Circuit Court of Appeals reversed.[15] The Fourth Circuit stated that the "right to counsel is sufficiently endangered" to warrant a remedy whenever the prosecution knowingly or deliberately intrudes into the attorney-client relationship.[16] Thus, the Fourth Circuit held that Bursey did not need to make a showing of prejudice to support his Sixth Amendment claim.[17]

         The United States Supreme Court reversed, holding that there could be no Sixth Amendment violation "unless Weatherford communicated the substance of the [attorney-client] conversations and thereby created at least a realistic possibility of injury to Bursey or benefit to the State."[18] In other words, Bursey could not establish that he had suffered a Sixth Amendment violation unless he suffered prejudice as a result of Weatherford's actions.

         The Weatherford Court then considered what could have constituted prejudice to Bursey, and stated:

Had Weatherford testified at Bursey's trial as to the conversation between Bursey and [Bursey's lawyer]; had any of the State's evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford … the details of the [attorney-client] conversations about trial preparations, Bursey would have a much stronger case.[19]

         In addition, the Weatherford Court considered the fact that there was "no tainted evidence, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford."[20] Ultimately, the Weatherford Court concluded that, because Weatherford's conduct caused no prejudice to Bursey, there was no violation of his Sixth Amendment rights.

         B. Third Circuit Application of Weatherford

         The Third Circuit established in Costanzo that there are three branches to the Weatherford test.[21] According to the Third Circuit, there is a violation of the Sixth Amendment when the government "intentionally plants an informer in the defense camp;" when an informer discloses confidential defense strategy to the prosecution; or where there is no intentional intrusion or disclosure but a disclosure still prejudices the defendant.[22]

         C. Levy's Presumption of Prejudice Approach

         Furthermore, the Third Circuit also adopted a presumption of prejudice approach that applies only in one limited circumstance.[23] In Levy, the Third Circuit stated that Weatherford did not actually adopt an actual prejudice test in all circumstances.[24] In examining the United States Supreme Court's examples of what would have constituted prejudice in Weatherford, the Third Circuit reasoned that the "Court was suggesting by negative inference that a sixth amendment violation would be found where, as here, defense strategy was actually disclosed" to the prosecution.[25] In other words, the Third Circuit held that no additional prejudice under Weatherford need be found where an actual disclosure has occurred.[26] Thus, Levy holds that "the inquiry into ...

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