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State v. Robinson

Supreme Court of Delaware

April 16, 2019

STATE OF DELAWARE, Defendant-Below, Appellant,
v.
JACQUEZ ROBINSON, Plaintiff-Below, Appellee.

          Submitted: February 20, 2019

          Superior Court of the State of Delaware Cr. ID. No. 1411017691 A&B (N)

          Elizabeth R. McFarlan, Esquire, Department of Justice, Wilmington, Delaware for Appellant.

          Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware for Appellee.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices. Constituting the Court en Banc.

          VALIHURA, JUSTICE, FOR THE MAJORITY

         I. Introduction

         In this case, we consider whether the State violated Jacquez Robinson's Sixth Amendment right to the effective assistance of counsel, and if we agree with the trial court that it did, whether the trial court erred in dismissing his indictment for first degree murder. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."[1] This right is "indispensable to the fair administration of our adversarial system of criminal justice."[2] It "safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding."[3] When the State deliberately invades that right, the integrity of the adversarial process is threatened.

         On March 2, 2015, the State indicted Robinson on charges for his alleged involvement in separate shooting incidents on November 25 and 26, 2014, which left two people injured and one person dead.[4] Charges related to the alleged assault on November 25th (the "Assault Case") were severed from the charges related to the alleged murder on November 26th (the "Murder Case"). The Superior Court scheduled the Murder Case for trial on July 11, 2017, but the court did not schedule the Assault Case for trial. Additionally, the State separately indicted Robinson in a multi-defendant action concerning his alleged participation in the "Touch Money Gang" (the "TMG Case"). That case had been scheduled for trial in October 2016.[5] Natalie Woloshin served as Robinson's counsel in all three cases.

         On August 24, 2016, the Superior Court entered a protective order in the TMG Case (the "Protective Order").[6] The Protective Order prohibited Woloshin from giving Robinson any documents containing summaries and transcripts of witness interviews or documents containing identifying witness information. However, the Protective Order also permitted Woloshin to discuss the "content" of those documents with Robinson. Woloshin sought clarification from the State about her ability to discuss "content" on August 4, 2016. The State explained that it allowed her "to discuss/provide summaries of the materials under the protective order."[7] After another discussion between Woloshin and the State on August 22, 2016, Woloshin wrote to the State to memorialize her understanding of the Protective Order boundaries: "[t]he State takes the position that there is no violation of the protective order by me sending summaries of reports and transcripts of statements of witnesses to my client so long as no identifying information is provided in the summaries. If this is not accurate, please let me know."[8] The State did not respond.

         Due to a May 2017 tip from an inmate housed in the same facility as Robinson, the two prosecutors assigned to the Murder Case, John Downs and Mark Denney, became concerned that Woloshin had violated the Protective Order. On June 30, 2017, without notifying Woloshin, applying for a warrant, or otherwise seeking judicial guidance or approval, the State seized and reviewed all of the documents and notes in Robinson's cell- including his communications with Woloshin and personal notes containing trial strategy. When Woloshin learned of the search from Robinson nearly a week later, she notified the court and filed a motion to dismiss on July 7, 2017, arguing that the State had violated Robinson's Sixth Amendment right to assistance of counsel.

         The Superior Court issued a Memorandum Opinion on September 19, 2017 (the "September 2017 Opinion"), setting forth the basic facts and legal framework for establishing a Sixth Amendment violation in this context and calling for an in camera review of Robinson's documents.[9] The court then held hearings on October 25, 2017 and November 21, 2017, where the court heard testimony from most of the individuals involved in the June 30, 2017 search and seizure.[10] In its May 1, 2018 opinion (the "May 2018 Opinion "), the Superior Court held that the State had violated Robinson's Sixth Amendment right to the assistance of counsel, and it granted the motion to dismiss his indictment.[11] The State appealed.

         II. Factual Background[12]

         In May 2017, an inmate incarcerated with Robinson wrote to the State claiming to have information relevant to the Murder Case. Downs interviewed the inmate on May 10, 2017. The informant-inmate stated that sometime in April 2017, Woloshin may have shown Robinson documents that were subject to the Protective Order. He also claimed that Robinson had used another inmate's pin number to call Woloshin regarding the protected documents. As a result, Downs and Denney became concerned that Woloshin may have violated the Protective Order. On May 16, 2017, Downs interviewed the inmate whose pin number had allegedly been stolen by Robinson to make phone calls, but the inmate denied allowing anyone to use his pin number for outgoing calls.

         Beginning on June 9, 2017, Downs issued a series of subpoenas for Robinson's phone records. Each subpoena sought "any and all available approved phone number lists, outgoing call log entries and conversations."[13] Sometime before June 28, 2017, the Delaware Department of Corrections ("DOC") produced recordings of Robinson's phone calls to the Delaware Department of Justice ("DOJ"). Thomas Dempsey, a DOJ investigator, listened to the recordings of Robinson's phone calls to determine if Robinson possessed material in violation of the Protective Order. The phone calls consisted of Robinson's conversations with his father, brother, and mother, and with three other individuals.[14] Dempsey provided transcripts of those calls to Downs and Denney on June 28, 2017. Additionally, the call logs revealed that someone had used the inmate's pin number to call Woloshin's office on three occasions.[15]

         Until late June 2017, Downs and Denney coordinated the Protective Order investigation without establishing a "taint team."[16] Specifically, they "conducted interviews, issued subpoenas, listened to phone calls, and reviewed call logs."[17] It was not until June 28, 2017-less than two weeks before the July 11 murder trial-that Denney and Downs alerted the Chief Prosecutor for New Castle County, Joseph Grubb, of their concerns. However, they did not inform Grubb that the State had previously clarified the parameters of the Protective Order for Woloshin. The same day that Downs and Denney raised their concerns, Grubb appointed Chief Special Investigator John Ciritella to coordinate the search of Robinson's cell.[18] Grubb and Downs met with Ciritella on June 28 or 29, 2017, where they instructed him to look for any documents in Robinson's cell that might suggest a violation of the Protective Order.[19] But they did not provide instructions regarding the attorney-client privilege or even limit the search to documents concerning witnesses.[20] In fact, Ciritella "understood that he was looking for attorney-client communications."[21]

         On June 30, 2017, without contacting Woloshin, applying for a search warrant, or seeking judicial approval, Ciritella instructed the DOC to search Robinson's cell. That same day, DOC officers seized all documents and notes from Robinson's cell, placed them in garbage bags, and brought them to Ciritella in a conference room at the Sussex Correctional Institute.[22] Ciritella testified that, after emptying the bags onto the conference room table, he divided the pile of documents seized from Robinson's cell with Keith Marvel, a State investigator based in Sussex County, whom Ciritella had enlisted to help review Robinson's documents.[23] Marvel, like Ciritella, did not receive any training on the attorney-client privilege, nor did he even know that the search involved a potential protective order violation. According to Marvel, Ciritella informed him that they were looking for "written communication from [Woloshin's] office that w[ere] in the cell."[24] Marvel also testified that "[a]nything that had a header of an attorney's office or was in an envelope of an attorney's office" is what he considered pertinent, which he then flagged for Ciritella's review.[25] Ciritella and Marvel testified that they kept virtually no record of the contents of the seized documents or how they went about reviewing the documents.[26]

         Ciritella took "twelve manila envelopes and five letter-sized envelopes that all bore Defense Counsel's letterhead, as well as a larger envelope that contained a federal transcript and pages of Defendant's handwritten notes, and brought them back to the DOJ in Wilmington for further review."[27] At the DOJ, Grubb did not set up a taint team at this point to review the seized documents, but instead selected Jamie Prater to review them. Prater testified that Grubb did not instruct her regarding what to review and she was not instructed by anyone to avoid privileged material.[28]

         Prater, a paralegal assigned to the Murder and TMG Cases, was integral to Robinson's prosecution team. According to Downs, she "controlled the paperwork flow," "kept record of what was sent out," "would redact the statements that we wanted redacted," and "would prepare discovery as it would go out, and present that to us to be sent to defense counsel."[29] And according to Denney, Prater "had to do some heavy lifting to organize the voluminous discovery," and "she assisted in scheduling all of [the State's] witness interviews."[30] Similarly, Prater testified that she generally helps schedule witness interviews and in-court appearances, and sometimes even has direct contact with witnesses.[31] However, she could not remember whether she helped draft the witness list in the Murder Case.[32] Additionally, Denney testified that Prater would sometimes sit in prosecution strategy meetings to talk about the case.[33] Indeed, Grubb testified that it was because of Prater's intimate involvement with the case that Grubb assigned her to the review.[34]

         On June 30, 2017, Prater reviewed Robinson's documents in the seventh floor conference room at the DOJ in Wilmington-the same floor that, according to Ciritella, housed offices for all prosecutors and investigators in the Wilmington office.[35] When the documents were not in the conference room for review, Ciritella testified that he secured the documents in his office, and that there was no evidence that anyone had tampered with or broken the lock.[36] Like Ciritella and Marvel, Prater testified that she did not record or inventory what she reviewed.[37]

         Based on the Superior Court's findings from its in camera review, the seized documents included privileged attorney-client communications and Robinson's handwritten notes containing trial strategy.[38] The court's findings were consistent with Robinson's motion to dismiss, in which he claimed that the content of the documents included "Counsel's assessment of the State's case; persons who were interviewed and the content of their statements, and legal strategies," and "a folder of notes that Mr. Robinson kept that memorialized his communications with legal counsel and legal research he conducted at the prison law library."[39] Prater likewise testified that she reviewed handwritten notes on a yellow legal pad and loose papers, which, she admitted, reflected information that Robinson received from Woloshin.[40] By reviewing those documents, Prater "learned details of Defendant's defense strategy."[41] Ultimately, however, Prater concluded from her review that Robinson was not in possession of any documents prohibited by the Protective Order.[42]

         On July 1, 2017, the day after Prater's review of Robinson's documents, she emailed Grubb suggesting that they return the documents to Robinson.[43] Grubb replied and said that her suggestion made sense, but no one at the DOJ or DOC had notified Woloshin or the Superior Court of the State's investigation.[44] Rather, on July 5, 2017, Robinson notified Woloshin that the DOC had seized his legal papers. Woloshin emailed Judge Parkins that same day to notify him that the DOC had seized "all correspondence from Counsel, motions sent to him and a notebook that he kept to memorialize conversations with counsel and legal research at the prison library."[45] She also asserted in that initial communication that "the actions of DOC violate Mr. Robinson's right to counsel under both the Delaware and federal constitutions," and she requested that the court "take action in order to protect Mr. Robinson's right to counsel."[46]

         Within an hour of Woloshin's email, Grubb emailed Downs and Denney to say that Ciritella was supposed to have returned the documents two days earlier on July 3, 2017, but wrote, "I heard he is back tomorrow when the items will be returned."[47] The next day, on July 6, 2017, Woloshin sent a follow-up letter to Judge Parkins reiterating the points in her July 5 email and attaching a proposed order to require the DOC to return Robinson's material. Additionally, and separate from the confiscation of Robinson's documents, Woloshin raised concerns about Robinson's housing status leading up to trial. Judge Parkins responded within an hour at about 1 p.m., stating that he needed a response from the State by noon the next day, July 6, 2017.[48]

         Prompted by Judge Parkins's email, Downs emailed Grubb, who in turn emailed Ciritella, to follow-up on the status of Robinson's documents. Ciritella responded at about 2 p.m. that the documents would be sent to Deputy Warden Truman Mears at Sussex Correctional Institute that afternoon. He also stated that Deputy Warden Mears was "aware of [the] investigation and has made the proper contacts for the internal delivery" to Robinson.[49] Downs then responded to Grubb, stating that the return of documents should be done "[a]s soon as possible."[50]

         On the morning of July 7, 2017, Ciritella reported that the documents had been dropped off at Sussex Correctional Institute with Deputy Warden Mears.[51] Grubb forwarded Ciritella's status update to Downs within a few minutes. Downs then asked Grubb whether Deputy Warden Mears knew that the materials "should be returned ASAP," and Grubb replied: "[H]e does. I asked Ciritella to make sure everything got back to Robinson immediately. I told [Deputy Attorney General] Greg Smith the same thing last night. I cannot confirm Robinson has the material, but I can confirm we relayed the importance."[52] Downs then emailed Judge Parkins at 9:55 a.m. the same morning. His single-sentence email stated: "I have been advised that materials taken from Robinson's cell has [sic] already been or will be returned to him today."[53] Separately, Smith responded on behalf of the DOC confirming that it had seized materials from Robinson's cell, including legal materials, and that the DOC had returned all of those materials between July 6 and July 7, 2017.[54] Thus, the State "remained in possession of [Robinson's] legal documents until four days before trial was scheduled to begin, despite having no evidence that [Robinson or his counsel had] engaged in any wrongdoing."[55]

         Meanwhile, following her review, Prater continued her involvement in final trial preparations, and the prosecution team continued to copy her on emails regarding witnesses and evidence for trial.[56] In fact, Downs did not officially remove Prater from the prosecution team until July 14, 2017, after the Superior Court had continued the trial.[57]Although she had been removed from the Robinson prosecution team, Prater testified that she continued to work with Downs and Denney on other murder cases.[58]

         Robinson moved to dismiss his indictment on July 7, 2017, arguing that the seizure of his legal documents violated his Sixth Amendment rights.

         III. The Superior Court Proceedings

         A. The September 19, 2017 Decision

         The Superior Court issued a preliminary Memorandum Opinion on September 19, 2017, to explain the framework for assessing whether the State violated Robinson's Sixth Amendment rights.[59] Specifically, the court evaluated the impact of three significant Sixth Amendment cases in the context of privileged communications: Weatherford v. Bursey, [60]United States v. Levy, [61] and United States v. Morrison.[62]

         The Superior Court concluded that, under the United States Supreme Court's decision in Weatherford, "there must be a showing that Robinson suffered prejudice as a result of the warrantless seizure of his legal materials from his cell to establish that there was a Sixth Amendment violation."[63] Despite suggestions in various cases that the Supreme Court's decision in Morrison had called into question the Third Circuit's decision in Levy, the Superior Court held that "[p]rejudice can only be presumed under Levy if there was actual disclosure of Robinson's defense strategy to the prosecution team."[64]Additionally, the court held that it "may find that there was a Sixth Amendment violation if there was a deliberate attempt to interfere with Robinson's attorney-client relationship."[65] If Robinson could not establish that there was a disclosure of his defense strategy or a deliberate attempt to interfere with his attorney-client relationship, then he would have the burden to show prejudice.[66] Finally, the court ordered an in camera review of the documents that the State had seized from Robinson's prison cell.

         B. The Hearings in October and November of 2017

         Following its September 2017 Opinion and prior to conducting its in camera review, the Superior Court held a hearing on October 25, 2017, to hear testimony from the State's witnesses-Downs, Denney, Grubb, Prater, and Ciritella-and to clarify which documents were seized and reviewed.[67] During the October hearing, the court learned that the State had failed to properly produce its emails or identify Marvel as one of the individuals who reviewed Robinson's documents. Thus, the court ordered a second document production and a second hearing, which took place on November 21, 2017.

         1. The State's Deficient Discovery Responses

         During the October hearing, the Superior Court questioned why the State had not previously disclosed Marvel's involvement in the review of Robinson's documents:

How come Keith Marvel has not been identified prior to today as one of the people who reviewed the documents, when I had specifically identified the scope of inquiry that I wanted to hear from all of the people who reviewed the documents, and Joe Grubb testified today that the only people that had access to the documents were Jamie Prater, himself, and John Ciritella. That now turns out to be inaccurate. . . . Mr. Grubb was asked specifically on Direct Examination and on Cross who had access to the documents. He did not identify Keith Marvel. . . . But now we know that is not correct. Now we know Keith Marvel did review the documents.[68]

         In response, the State claimed it was unaware until Ciritella's testimony that Marvel had reviewed the documents.[69] The record indicates that even Grubb may have been unaware that Marvel reviewed the documents, although he never expressly testified on that point.[70]

         The court also learned that the State had not properly searched and produced its emails.[71] The court discovered this shortcoming through Prater's testimony, where she stated that she had not searched her emails for correspondence or memoranda relevant to the review of Robinson's documents-even though she admitted that there may have been relevant emails with Grubb and Ciritella.[72] Prior to the October hearing, the State had only produced three emails, which it uncovered from individual email searches by Grubb, Prater, and Ciritella of their own accounts.[73]

         On November 7, 2017, the Superior Court instructed the State to "conduct a statewide document and email search for any documents and/or email messages addressing in any manner the search and seizure and/or the review of Defendant's documents as well as any staffing changes that occurred as a result thereof, and shall produce those documents and email messages . . . ."[74] In a November 16, 2017 letter, the State replied that it had conducted a two-prong search. First, it requested "each of the individuals involved in this matter (Messrs. Downs, Denney, Grubb, Ciritella, Dempsey, and Ms. Prater) to provide any identified electronic files."[75] Second, the State represented that the Delaware Department of Technology and Information ("DTI") searched and produced emails "from the accounts of [Downs, Denney, Grubb, Ciritella, Dempsey, and Prater] that may meet the criteria set by the Court."[76] For the individually-conducted searches, the State reported that "no qualifying files were identified."[77] However, "a review of the emails provided by DTI revealed" approximately thirty-seven relevant emails.[78]

         It appears from the State's November 16 letter that the State did not include Marvel's email account in its search and production. The court had ordered a "statewide" search of any relevant material, not merely a search of those six accounts. On November 21, 2017, the Superior Court heard Marvel's testimony and closed the evidentiary record.

         2. The State's Testimony Concerning the Possibility of "Taint"

         In the October and November hearings, the witnesses testified concerning whether the contents or substance of the documents had been disclosed to Downs and Denney, or to other individuals outside of those involved with the Protective Order investigation. Overall, the weight of the evidence suggests that Robinson's privileged information was not divulged to those involved with the Murder Case, other than Prater. We summarize the record next.

         Downs and Denney testified that neither Prater nor Ciritella shared information about the review with them.[79] Additionally, they broadly testified that they did not hear about the contents of Robinson's documents from any other source.[80] That testimony was consistent with the affidavits that Downs and Denney filed on July 10, 2017, in which both prosecutors stated that they were not involved in the search of Robinson's cell, had not been told about or seen the contents of anything found in Robinson's cell, and did not know the status of the investigation beyond their initial involvement.[81]

         Of those actively involved with the investigation after June 28, 2017, Ciritella and Marvel testified that they did not share information with Downs or Denney, or with anyone else generally.[82] Ciritella and Marvel further testified that they no longer remembered the substance of Robinson's documents.[83]

         The questioning and testimony of Grubb and Prater was less thorough than the questioning of Downs, Denney, Ciritella, and Marvel. First, Grubb was not asked whether he shared information about the review with anyone, nor did he address that question in his affidavit.[84] Rather, he testified that he did not review the documents and that neither Ciritella nor Prater informed him of the substance of the documents.[85] But there is an inconsistency in the testimony that the Superior Court did not resolve. Ciritella testified that, upon Prater's request, he brought Robinson's documents from his office to the seventh floor conference room so that Grubb could review them himself.[86] Ciritella also testified that, to the best of his knowledge, Grubb actually reviewed the documents.[87] Further, Grubb's July 10, 2017 affidavit is silent as to whether he reviewed the documents.[88]Prater's testimony, however, directly contradicted Ciritella's claim that she had said that Grubb asked to review the documents.[89]

         Second, Prater testified that she reviewed Robinson's notes, which reflected information that he received from Woloshin. Although Prater testified that she did not share any information with Downs or Denney, [90] when asked whether she shared information about the documents with any other person, she identified Grubb. She did not, however, expressly state that Grubb was the only person she communicated with about the review.[91] Further, Prater testified that, while she did not remember the substance of anything she reviewed at the time of her testimony, she "remembered easily what [she] had reviewed" immediately following her review.[92] Notably, the record is unclear as to when Grubb may have instructed Prater to refrain from communicating with Downs and Denney-that is, whether it was before Downs removed her from the Murder case, or after her removal, which was nearly two weeks after her review of Robinson's documents.[93]

         C. The May 1, 2018 Decision

         After considering the relevant testimony, reviewing Robinson's documents in camera, [94] and considering additional briefing by the parties, the Superior Court issued its May 2018 Opinion dismissing Robinson's indictment with prejudice. The court held that the State's seizure of attorney-client material was improper and could not be legally justified for several reasons.

         First, the State's Fourth Amendment justification was misplaced. The State had argued that the search and seizure was constitutionally valid because defendants do not have a reasonable expectation of privacy in prison cells.[95] But the court explained that the State failed "to appreciate the substantial differences between Fourth and Sixth Amendment jurisprudence" applicable here.[96] For example, the court noted that prisoners are afforded their right to assistance of counsel, which bars prison officials from listening to or reading attorney-client communications. Nonetheless, a member of the prosecution team (Prater) reviewed privileged communications containing defense strategy.

         Second, the State's reliance on the crime-fraud exception to the attorney-client privilege was improper because "application of the crime-fraud exception . . . requires judicial oversight and approval," which the State did not seek.[97] But even if the State had sought judicial approval, the court stated that it would have denied the request:

The Court's inquiry would have revealed that there was no basis to intrude on the attorney-client privilege because no witness names had been produced by the State, Defense Counsel had permission to share the "content" of witness statements with her client, and the record evidence would have demonstrated that Defense Counsel had steadfastly refused to provide information to her client that would have violated the TMG Protective Order.[98]

         Additionally, the Superior Court held that the State should have applied for a search warrant, but that the warrant would not have issued regardless because the State did not have probable cause for the same reasons the court would not have granted judicial approval. Further, the court rejected the State's contention that it had to conduct a search immediately to protect witness safety, as the State only sought evidence of a Protective Order violation, not actual witness intimidation, and it displayed no urgency in conducting the investigation.[99]

         Third, and finally, the State failed to employ a taint team. Instead, "the State took no steps to screen the Prosecution Team to protect the integrity of the attorney-client privilege."[100] The prosecutors led the Protective Order investigation until less than two weeks before trial in the Murder Case, and even after that point, the court found that the State's claims that the prosecutors were screened from the case were not supported by the record. Additionally, Prater helped review the privileged documents and remained on the trial team for nearly another two weeks to assist with final trial preparations.

         Thus, the court held that Robinson had suffered both presumed and actual prejudice because the State had deliberately interfered with Robinson's Sixth Amendment rights, "which could cause a chilling effect on [Robinson's] attorney-client communications in the future."[101] Additionally, the court held that Robinson suffered prejudice because: (i) Grubb selected a member of the prosecution team (Prater) to review Robinson's documents, which included letters from Woloshin and his handwritten notes reflecting communications from Woloshin;[102] (ii) Prater remained on the prosecution team until the scheduled start of the trial;[103] (iii) Downs and Denney were not effectively screened from the Protective Order investigation, given that they "conducted interviews, issued subpoenas, listened to phone calls, and reviewed call logs" leading up to the search;[104] and (iv) the "the State's actions have caused a significant delay in [Robinson's] prosecution" during which time he "has been detained."[105]

         With these facts in mind, the court turned to a remedy. The State argued that Robinson was not entitled to any remedy because trial had not yet taken place and, thus, any prejudice he suffered could be rectified before trial. But the State failed to propose any alternative remedies to dismissal throughout the entirety of the Superior Court proceedings.[106] Regardless, the court rejected State's argument, explaining that:

[T]he State's position would mean that it can intentionally review a defendant's privileged attorney-client communications at any time before trial without any consequences. Such a rule would vitiate the fundamental importance of a defendant's right to the assistance of counsel and give the State a license to violate the Sixth Amendment rights of defendants in the future.[107]

         Despite the State's failure to propose a remedy, the court identified several potential alternatives to dismissal, including replacing the entire prosecution team, destroying all of the State's work product, releasing Robinson on pretrial supervision, and barring Grubb, Ciritella, and Marvel from working on any of Robinson's cases.

         The court ultimately determined that alternative remedies were inadequate because "the prejudice to Defendant is much broader, and the affront to the rule of law is more profound, than can be addressed by these limited remedies."[108] For example, the court noted that according to Ciritella's testimony, the State may have carried out similar searches in the past:

Q: Have you ever done a search like this before?
Ciritella: Yes, sir.
Q: So let me be specific. Have you done . . . a seizure and review of an inmate's legal paperwork?
Ciritella: Yes.
Q: Okay. And I don't want you to say case names, or anything. To your knowledge, were those pursuant to a search warrant, or anything like that?
Ciritella: No, sir, they were not.
Q: So you have experience in going through client documents-pardon me, attorney-client documents to determine if a protective order has been violated?
Ciritella: If there is probable cause to believe that there is some type of violation, yes. . . .
Q: Before the Jacquez Robinson review that you conducted, how many times would you say that you looked through documents from cells of inmates looking for things that may have violated a protective order?
Ciritella: I think maybe one other time.[109]

         Further, the court held that the State did not fully accept responsibility for the shortcomings in its investigation or "demonstrate concern for Defendant's right to a fair trial," and it "demonstrated a seeming indifference to the serious constitutional issues at stake throughout these proceedings."[110] For example, the State failed to comply with the court's order to identify each person who reviewed Robinson's documents, conduct a comprehensive email search, and produce responsive emails.

         Thus, while noting that dismissal was a "severe" and "unfortunate" result, the Superior Court held that it was the only adequate remedy "because any lesser sanction would unduly depreciate the seriousness of the State's actions and the extent to which the State's actions put at risk the most fundamental constitutional requirements."[111] Further, the court held that dismissal was the only remedy that would "deter the State from violating the Sixth Amendment rights of criminal defendants in the future."[112]

         On May 2, 2018, the day after the Superior Court's decision, the State filed its notice of appeal.

         IV. Claims on Appeal

         The State appeals the Superior Court's dismissal of Robinson's indictment on two grounds. First, the State claims that it did not violate Robinson's Sixth Amendment right to assistance of counsel because Robinson's ability to defend himself was not affected in any way by the State's warrantless search and seizure of his documents. Specifically, the State claims that its seizure of Robinson's documents did not prejudice him because it returned the documents, trial was continued, no records of the material were retained, and no privileged documents were conveyed to Downs or Denney. Second, even assuming that its actions did prejudice Robinson, the State contends that dismissal was an inappropriate remedy in the absence of any demonstrable, irreparable prejudice to Robinson.

         Robinson disputes both of the State's arguments. He contends that the Superior Court not only correctly presumed prejudice, but correctly found actual prejudice caused by the State's intentional intrusion into his attorney-client relationship, and by learning the details of his trial strategy only eleven days before the murder trial. Further, while acknowledging that dismissal is an extreme sanction, Robinson argues that it is warranted here because of the affront to the rule of law and as a means of curbing future misconduct by the State.

         V. Standard of Review

         The State's arguments concerning Robinson's alleged Sixth Amendment violation are issues of law that we review de novo.[113] Further, we review de novo the Superior Court's application of the law to these facts, [114] along with the "embedded legal conclusions" in the court's remedy analysis.[115] We will not disturb the Superior Court's factual findings if they are supported by competent evidence.[116]

          VI. Analysis

         A. The State Violated Robinson's Sixth Amendment Rights

         Any discussion addressing governmental interference with a defendant's Sixth Amendment right to counsel must acknowledge the centrality of the attorney-client privilege, which is fundamental to the exercise of that right. The privilege was designed to encourage full disclosure by a client to his or her attorney in order to facilitate the rendering of legal advice.[117] For the adversary system to function properly, any such advice must be shielded from exposure to the government.[118] That did not happen here. In fact, the State deliberately invaded Robinson's attorney-client privilege by searching for, seizing, and reviewing his legal materials.

         In this case, the parties have debated intensely about what is required to establish a violation of the Sixth Amendment.[119] That debate is understandable given that the federal courts are divided on important aspects of the analysis, including whether a showing of prejudice to the defendant is required to establish a violation when the government intentionally invades a defendant's privileged communications. Courts have also differed as to who bears the burden of proof and the standard of proof in analyzing prejudice in the remedy analysis.[120]

         In Weatherford, the United States Supreme Court held that a threat of significant harm to the defendant was a critical element of a non-deliberate violation of the Sixth Amendment. There, attendance by an undercover agent at a meeting with the criminal defendant and his attorney did not constitute a Sixth Amendment violation. The Court, rejecting the Fourth Circuit's per se rule, reasoned that "[a]t no time did [the agent] discuss with or pass on to his superiors or to the prosecuting attorney or any of the attorney's staff 'any details or information regarding the plaintiff's trial plans, strategy, or anything having to do with the criminal action pending against plaintiff.'"[121]

         But the Supreme Court suggested four factors that could strongly indicate a Sixth Amendment violation, namely:

[1] Had [the agent] testified at [the defendant's] trial as to the conversation between [the defendant] and [his attorney]; [2] had any of the State's evidence originated in these conversations; [3] had those overheard conversations been used in any other way to the substantial detriment of [the defendant]; or even [4] had the prosecution learned from [the agent] the details of the [attorney-client] conversations about trial preparations, [the defendant] would have had a much stronger case.[122]

         In Weatherford, the government did not violate the defendant's Sixth Amendment right to counsel because "[n]one of these elements [were] present."[123] It stated further that "[u]nless [the agent] communicated the substance of the [attorney-client] conversations and thereby created at least a realistic possibility of injury [to defendant], or benefit to the State, there can be no Sixth Amendment violation."[124] Thus, in Weatherford, where there was a significant investigative justification, the Supreme Court did not consider whether an intentional invasion of the privilege by the government might constitute a per se violation of the Sixth Amendment.[125] But the Court appeared to recognize that the prejudice requirement it articulated does not necessarily govern intentional intrusions by the prosecution that lack a legitimate purpose.

         Three years later, in Morrison, the Supreme Court did consider the appropriate remedy for the government's deliberate intrusion into the attorney-client relationship when the intrusion did not prejudice the defendant's representation. There, federal drug agents met with the defendant twice without her attorney's knowledge, although they were aware that she had retained counsel.[126] The agents sought her cooperation, disparaged her attorney, and threatened her with more severe penalties if she refused to cooperate.[127]However, she did not cooperate or provide them with any incriminating information about herself or her case. She also maintained her relationship with her counsel.[128]

         The United States Court of Appeals for the Third Circuit held that this conduct violated the defendant's right to counsel, even if the government's conduct had not adversely impacted her representation. It dismissed the indictment with prejudice.[129]

         The Supreme Court unanimously reversed. In doing so, it did not address the government's contention that no Sixth Amendment violation occurs unless its conduct prejudices the defendant. Rather, the Court assumed that the government had violated the Sixth Amendment, but held that the Third Circuit had erred in dismissing the indictment.[130] It stated that "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate."[131]

         The Supreme Court held that remedies for the Sixth Amendment violations should be tailored to the injury suffered. It stated that the "premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense," and that "[a]bsent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding."[132] Because the defendant had not established any "transitory or permanent" prejudice, [133] the government's violation did not justify interfering in the proceedings. Thus, Morrison makes clear that dismissal of an indictment is a drastic remedy for a Sixth Amendment violation absent a showing of actual prejudice or a substantial threat of prejudice to the defendant's representation.

         Following Weatherford and Morrison (both decisions authored by Justice White), some courts and commentators have suggested that because the Supreme Court did not address the government's argument that a showing of prejudice was needed to establish a Sixth Amendment violation, "Morrison 'left open the possibility that the Court might adopt a per se standard for those state invasions of the lawyer-client relationship that are not supported by any legitimate state motivation.'"[134] This might be the case, for example, where the prosecution acts intentionally and without legitimate purpose.[135] The federal appellate courts are divided on this issue.

         The United States Courts of Appeals for the Third and Tenth Circuits have held that intentional intrusions by the prosecution into the defendant's attorney-client privileged information, at least without a legitimate purpose, constitute a per se violation of the Sixth Amendment with no need to demonstrate that the defendant has suffered prejudice as a result of the disclosure.[136] The Sixth, [137] Eighth, [138] and Ninth[139] Circuits have held that even where the government intentionally intrudes in the attorney-client relationship, the defendant must demonstrate prejudice to establish a Sixth Amendment violation warranting a remedy. The First Circuit has adopted a "middle position" in which it requires the government to prove the absence of prejudice upon the defendant's prima facie showing of prejudice.[140] As the First Circuit has observed, "[t]he burden on the government is high because to require anything less would be to condone intrusions into a defendant's protected attorney-client communications."[141]

         As for the courts that presume prejudice to the defendant, some have held that the government's possession of a defendant's privileged information is a per se Sixth Amendment violation requiring dismissal of the conviction. Others have held that the presumption of prejudice is rebuttable. As for this latter category, the Connecticut Supreme Court, for example, has held that the presumption of prejudice resulting from an invasion of a defendant's privileged communications, whether intentional or not, can be rebutted by the State. The State must show by clear and convincing evidence that no person with knowledge of the communications was involved in the investigation or prosecution, that the communications contained minimal privileged information, or that it has access to all of the information from other sources.[142] The Nebraska Supreme Court adopted the same standard in State v. Bain, [143] holding that a presumption of prejudice exists when the government becomes privy to a defendant's trial strategy, and that the presumption can be rebutted by clear and convincing evidence-"at least when the State did not deliberately intrude into the attorney client relationship."[144]

         As for the former category, in Levy (decided after Weatherford but before Morrison), for example, the Third Circuit viewed Weatherford as "suggesting by negative inference that a sixth amendment violation would be found where, as here, defense strategy was actually disclosed or where, as here, the government enforcement officials sought such confidential information."[145] In other words, "when actual disclosure occurred," the court found no need to inquire into prejudice.[146]

         The Third Circuit viewed speculation about possible prejudice to the defense resulting from actual disclosure of confidential communications to the government as dangerous if the court were to adopt a test weighing the prejudice on a case-by-case basis.[147] It reasoned:

[I]t is highly unlikely that a court can, in [a pretrial] hearing, arrive at a certain conclusion as to how the government's knowledge of any part of the defense strategy might benefit the government in its further investigation of the case, in the subtle process of pretrial discussion with potential witnesses, in the selection of jurors, or in the dynamics of trial itself. . . . .
[T]he interests at stake in the attorney-client relationship are unlike the expectations of privacy that underlie the fourth amendment exclusionary rule. The fundamental justification for the sixth amendment right to counsel is the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense. Free two-way communication between client and attorney is essential if the professional assistance guaranteed by the sixth amendment is to be meaningful. The purpose of the attorney-client privilege is inextricably linked to the very integrity and accuracy of the fact finding process itself. . . . In order for the adversary system to function properly, any advice received as a result of a defendant's disclosure to counsel must be insulated from the government. . . . We think that the inquiry into prejudice must stop at the point where attorney-client confidences are actually disclosed to the government enforcement agencies responsible for investigating and prosecuting the case. Any other rule would disturb the balance implicit in the adversary system and thus would jeopardize the very process by which guilt and innocence are determined in our society.[148]

         The Third Circuit concluded that the prosecutor's knowledge of the defendant's trial strategy required a per se reversal of a subsequent conviction, since the prosecution's strategic responses to this defense strategy were now in the public domain and known to any subsequent prosecution. Thus, it concluded that dismissal of the indictment was the only appropriate remedy.[149] The court expressly declined to decide whether dismissal would be required when defense strategy has been disclosed to government agents but has not become public information.[150] As the trial court aptly observed in this case, "[t]here has been some confusion over whether Levy is still good law" following Morrison.[151] The following discussion of Third Circuit cases makes the point.

         Six years after Levy, the Third Circuit, in United States v. Costanzo, [152] applied Weatherford in deciding another case involving an alleged Sixth Amendment violation.[153] Citing the "three branches of the Weatherford test," the court stated that the government violates a person's Sixth Amendment rights when it:

(1) Intentionally plants an informer in the defense camp; (2) when confidential defense strategy information is disclosed to the prosecution by a government informer; or (3) when there is no intentional intrusion or disclosure of confidential defense strategy, but a disclosure by a government informer leads to prejudice to the defendant.[154]

         Although none of those circumstances was present in Costanzo, the Third Circuit implied that Levy was still viable after Morrison, concluding that "the Levy rule does not apply to petitioner's case," given the findings of the district court that no defense strategy had been disclosed.[155]

         But in 1996, in United States v. Voigt, [156] the Third Circuit questioned whether Levy was still good law, and observed in a footnote that "to the extent that Levy can be read as holding that certain government conduct is per se prejudicial, we note that the Supreme Court has since [in Morrison] held to the contrary."[157]

         The Third Circuit further explained its holding in Levy in its 2012 opinion, United States v. Mitan.[158] In its analysis, the Third Circuit stated that "Levy crafted a three part test examining: (1) intentional government conduct, (2) attorney-client privilege, and (3) the release of confidential legal strategy. When those circumstances coalesce, Levy dispenses with an inquiry into whether the defense was prejudiced."[159] But, in Mitan, the Third Circuit declined to address the question of whether Morrison precludes Levy's presumption of prejudice approach because it found that the defendant could not show the factual predicate for the presumption, namely, an intentional invasion by the government into any attorney-client relationship. The Third Circuit assumed that Levy's approach remained viable, but it observed, again in a footnote, that "[its] interpretation of Weatherford in Levy, however, was called into question just two years later when the [United States Supreme Court] declared in United States v. Morrison that 'absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the [Sixth Amendment] violation may have been deliberate.'"[160]

         Understandably, the parties here vigorously dispute whether prejudice still may be presumed under Levy. But that is a question we need not definitively resolve today because the Superior Court did not merely presume prejudice.[161] Instead, it concluded that the Defendant had "suffered substantial prejudice as a result of the State's conduct."[162]

         Specifically, the trial court found that the State selected Prater to review the seized documents containing Defendant's privileged attorney-client communications in detail, including letters from Woloshin and handwritten notes reflecting Woloshin's communications, from which Prater learned details of the defense trial strategy.[163] Prater was then allowed to "remain on the Prosecution Team and work with the Trial Prosecutors" on the State's final trial preparations, and the court found that the State did not implement any process to effectively screen the Trial Prosecutors from the investigation.[164] Further, Downs and Denney continued their involvement in the investigation until the eve of the search of Robinson's cell, including conducting interviews, issuing subpoenas, listening to phone calls, reviewing call logs, and speaking with Ciritella about what to search for in Robinson's cell. The trial court also observed that the State's actions caused "a significant delay in Defendant's prosecution" while Defendant remained in detention.[165]

         In addition to these findings of prejudice, the trial court found that the State demonstrated "a seeming indifference to the serious constitutional issues at stake throughout these proceedings," pointing to the fact that "[Grubb], who authorized the search, seizure, and review," also appeared as "counsel for the State's response to the motion to dismiss until specifically instructed by the [c]ourt to involve [other] counsel who would not be called to testify as a witness."[166] The trial court also considered the State's various discovery failures, and the fact that the State's reasons for the intrusion, namely, its stated concerns about witness safety, were not supported by the record. Moreover, the trial court was seriously concerned that the "State's persistent refusal to accept responsibility for improper conduct in this matter" without a "significant sanction" would likely allow the State to "engage in additional abuses in the future."[167] This concern was warranted, in the trial court's view, because "[Ciritella] testified that he ha[d] previously conducted similar searches targeting a defendant's legal documents in other cases, suggesting that the State may have engaged in other unauthorized reviews of attorney-client communications."[168]

         In sum, because the trial court made findings of actual prejudice, and because the State has not shown that those findings of actual prejudice are clearly erroneous, we need not broadly decide whether prejudice should be presumed in any case where the government obtains defendant's privileged materials.[169] Rather, we limit our holding to the facts here, where the State has deliberately invaded a defendant's attorney-client privilege and has obtained defendant's trial strategy information, and the defendant has suffered prejudice as a result. Based upon this aspect of the record, we affirm the Superior Court's holding that the State violated Robinson's Sixth Amendment rights and that he suffered actual prejudice. Accordingly, we affirm that aspect of the September 2017 Opinion.

         B. Tailoring the Remedy to the Injury Suffered

This leads us to the next question: was dismissal of the indictment with prejudice sufficiently "tailored" to the prejudice Robinson suffered as Morrison requires? In Morrison, the Supreme Court offered general guidance on remedies in this context. The Court first recognized that upholding the Sixth Amendment right to counsel is often in tension with respecting society's interest in the administration of criminal justice:
Our cases have accordingly been responsive to proved claims that governmental conduct has rendered counsel's assistance to the defendant ineffective. At the same time and without detracting from the fundamental importance of the right to counsel in criminal cases, we have implicitly recognized the necessity for preserving society's interest in the administration of criminal justice. Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered for the constitutional violation and should not unnecessarily infringe on competing interests. Our relevant cases reflect this approach. . . . None of these deprivations, however, resulted in the dismissal of the indictment. . . . .
[W]hen before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or order a new trial if the evidence has been wrongfully admitted and the defendant convicted.[170]

         Accordingly, identification of a Sixth Amendment violation does not, alone, suggest that dismissal of the indictment is appropriate. Rather, the remedy for that violation must be "tailored to the injury suffered."[171] In tailoring the remedy, "[t]he interests supporting the sixth amendment right, meant to assure fairness in the adversary criminal process, must be reconciled with society's competing interest in prosecuting criminal conduct."[172] Thus, the Supreme Court emphasized in Morrison that its preferred approach "has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial."[173] It explained that the premise of its prior cases "is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense."[174] "Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition of the defendant's right to counsel and a fair trial."[175]Dismissal with prejudice-an extreme remedy-is the only remedy Robinson sought. In Morrison, the Supreme Court held that dismissal is a "drastic" form of relief, and that "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate."[176] Rather, "[t]he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression."[177] Thus, the Court held that dismissal was inappropriate.

         In Shillinger v. Haworth, [178] the Tenth Circuit observed that "dismissal of the indictment could, in extreme circumstances, be appropriate."[179] Other courts have observed that dismissal of a criminal case is a draconian remedy "of last resort."[180] The cases uniformly suggest that dismissal of the indictment is appropriate only where the injury is irreparable.[181] For example, courts have held that dismissal is the appropriate remedy where the information has been disclosed to the public domain following trial, [182] where the government has effectively diminished the ability of the defendant to mount a full defense, [183] or where the government's misconduct secured the indictment.[184]

         In contrast to Robinson's demand for dismissal, the State steadfastly adhered to its position that no Sixth Amendment violation occurred and that dismissal of the indictment was not warranted. It never proposed an alternative remedy. Thus, the trial court was faced with diametrically opposite "all or nothing" proposals on the remedy spectrum. But even so, the trial court appropriately considered several alternative remedies sua sponte, including replacing the entire prosecution team, destroying all of the State's work product, releasing Robinson on pretrial supervision, and barring Grubb, Ciritella, or Marvel from ...


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