2. The States 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 Robinsons 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. Additionally, they broadly testified that they did not hear about the contents of Robinsons documents from any other source. 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 Robinsons cell, had not been told about or seen the contents of anything found in Robinsons cell, and did not know the status of the investigation beyond their initial involvement.
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. Ciritella and Marvel further testified that they no longer remembered the substance of Robinsons documents.
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. Rather, he testified that he did not review the documents and that neither Ciritella nor Prater informed him of the substance of the documents.
But there is an inconsistency in the testimony that the Superior Court did not resolve. Ciritella testified that, upon Praters request, he brought Robinsons documents from his office to the seventh floor conference room so that Grubb could review them himself. Ciritella also testified that, to the best of his knowledge, Grubb actually reviewed the documents. Further, Grubbs July 10, 2017 affidavit is silent as to whether he reviewed the documents. Praters testimony, however, directly contradicted Ciritellas claim that she had said that Grubb asked to review the documents.
Second, Prater testified that she reviewed Robinsons notes, which reflected information that he received from Woloshin. Although Prater testified that she did not share any information with Downs or Denney, 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. 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. 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 Robinsons documents.
C. The May 1, 2018 Decision
After considering the relevant testimony, reviewing Robinsons documents in camera , and considering additional briefing by the parties, the Superior Court issued its May 2018 Opinion dismissing Robinsons indictment with prejudice. The court held that the States seizure of attorney-client material was improper and could not be legally justified for several reasons.
First , the States 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. But the court explained that the State failed to appreciate the substantial differences between Fourth and Sixth Amendment jurisprudence applicable here. 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 States 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. But even if the State had sought judicial approval, the court stated that it would have denied the request:
The Courts 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.
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 States 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.
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. 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 States 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 Robinsons Sixth Amendment rights, which could cause a chilling effect on [Robinsons] attorney-client communications in the future. Additionally, the court held that Robinson suffered prejudice because: (i) Grubb selected a member of the prosecution team (Prater) to review Robinsons documents, which included letters from Woloshin and his handwritten notes reflecting communications from Woloshin; (ii) Prater remained on the prosecution team until the scheduled start of the trial; (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; and (iv) the the States actions have caused a significant delay in [Robinsons] prosecution during which time he has been detained.
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. Regardless, the court rejected States argument, explaining that:
[T]he States position would mean that it can intentionally review a defendants privileged attorney-client communications at any time before trial without any consequences. Such a rule would vitiate the fundamental importance of a defendants right to the assistance of counsel and give the State a license to violate the Sixth Amendment rights of defendants in the future.
Despite the States failure to propose a remedy, the court identified several potential alternatives to dismissal, including replacing the entire prosecution team, destroying all of the States work product, releasing Robinson on pretrial supervision, and barring Grubb, Ciritella, and Marvel from working on any of Robinsons 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. For example, the court noted that according to Ciritellas 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 inmates legal paperwork?
Ciritella: Yes.
Q: Okay. And I dont 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.
Further, the court held that the State did not fully accept responsibility for the shortcomings in its investigation or demonstrate concern for Defendants right to a fair trial, and it demonstrated a seeming indifference to the serious constitutional issues at stake throughout these proceedings. For example, the State failed to comply with the courts order to identify each person who reviewed Robinsons 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 States actions and the extent to which the States actions put at risk the most fundamental constitutional requirements. 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.
On May 2, 2018, the day after the Superior Courts decision, the State filed its notice of appeal.
IV. Claims on Appeal
The State appeals the Superior Courts dismissal of Robinsons indictment on two grounds. First , the State claims that it did not violate Robinsons Sixth Amendment right to assistance of counsel because Robinsons ability to defend himself was not affected in any way by the States warrantless search and seizure of his documents. Specifically, the State claims that its seizure of Robinsons 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 States arguments. He contends that the Superior Court not only correctly presumed prejudice, but correctly found actual prejudice caused by the States 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 States arguments concerning Robinsons alleged Sixth Amendment violation are issues of law that we review de novo . Further, we review de novo the Superior Courts application of the law to these facts, along with the embedded legal conclusions in the courts remedy analysis. We will not disturb the Superior Courts factual findings if they are supported by competent evidence.
VI. Analysis
A. The State Violated Robinsons Sixth Amendment Rights
Any discussion addressing governmental interference with a defendants 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.
For the adversary system to function properly, any such advice must be shielded from exposure to the government. That did not happen here. In fact, the State deliberately invaded Robinsons 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. 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 defendants 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.
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 Circuits 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 attorneys staff any details or information regarding the plaintiffs trial plans, strategy, or anything having to do with the criminal action pending against plaintiff.
But the Supreme Court suggested four factors that could strongly indicate a Sixth Amendment violation, namely:
[1] Had [the agent] testified at [the defendants] trial as to the conversation between [the defendant] and [his attorney]; [2] had any of the States 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.
In Weatherford , the government did not violate the defendants Sixth Amendment right to counsel because [n]one of these elements [were] present. 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 . 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. 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 governments deliberate intrusion into the attorney-client relationship when the intrusion did not prejudice the defendants representation. There, federal drug agents met with the defendant twice without her attorneys knowledge, although they were aware that she had retained counsel. The agents sought her cooperation, disparaged her attorney, and threatened her with more severe penalties if she refused to cooperate. 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.
The United States Court of Appeals for the Third Circuit held that this conduct violated the defendants right to counsel, even if the governments conduct had not adversely impacted her representation. It dismissed the indictment with prejudice.
The Supreme Court unanimously reversed. In doing so, it did not address the governments 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. 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.
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 counsels 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. Because the defendant had not established any transitory or permanent prejudice, the governments 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 defendants 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 governments 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. This might be the case, for example, where the prosecution acts intentionally and without legitimate purpose. 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 defendants 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. The Sixth, Eighth, and Ninth 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 defendants prima facie showing of prejudice. 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 defendants protected attorney-client communications.
As for the courts that presume prejudice to the defendant, some have held that the governments possession of a defendants 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 defendants 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. The Nebraska Supreme Court adopted the same standard in State v. Bain , holding that a presumption of prejudice exists when the government becomes privy to a defendants 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.
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. In other words, when actual disclosure occurred, the court found no need to inquire into prejudice.
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. It reasoned:
[I]t is highly unlikely that a court can, in [a pretrial] hearing, arrive at a certain conclusion as to how the governments 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 defendants 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.
The Third Circuit concluded that the prosecutors knowledge of the defendants trial strategy required a per se reversal of a subsequent conviction, since the prosecutions 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. 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. As the trial court aptly observed in this case, [t]here has been some confusion over whether Levy is still good law following Morrison . The following discussion of Third Circuit cases makes the point.
Six years after Levy , the Third Circuit, in United States v. Costanzo , applied Weatherford in deciding another case involving an alleged Sixth Amendment violation. Citing the three branches of the Weatherford test, the court stated that the government violates a persons 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.
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 petitioners case, given the findings of the district court that no defense strategy had been disclosed.
But in 1996, in United States v. Voigt , 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.
The Third Circuit further explained its holding in Levy in its 2012 opinion, United States v. Mitan . 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. But, in Mitan , the Third Circuit declined to address the question of whether Morrison precludes Levys 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 Levys 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.
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. Instead, it concluded that the Defendant had suffered substantial prejudice as a result of the States conduct.
Specifically, the trial court found that the State selected Prater to review the seized documents containing Defendants privileged attorney-client communications in detail, including letters from Woloshin and handwritten notes reflecting Woloshins communications, from which Prater learned details of the defense trial strategy. Prater was then allowed to remain on the Prosecution Team and work with the Trial Prosecutors on the States final trial preparations, and the court found that the State did not implement any process to effectively screen the Trial Prosecutors from the investigation. Further, Downs and Denney continued their involvement in the investigation until the eve of the search of Robinsons cell, including conducting interviews, issuing subpoenas, listening to phone calls, reviewing call logs, and speaking with Ciritella about what to search for in Robinsons cell. The trial court also observed that the States actions caused a significant delay in Defendants prosecution while Defendant remained in detention.
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 States 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. The trial court also considered the States various discovery failures, and the fact that the States 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 States 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. This concern was warranted, in the trial courts view, because [Ciritella] testified that he ha[d] previously conducted similar searches targeting a defendants legal documents in other cases, suggesting that the State may have engaged in other unauthorized reviews of attorney-client communications.
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 defendants privileged materials. Rather, we limit our holding to the facts here, where the State has deliberately invaded a defendants attorney-client privilege and has obtained defendants trial strategy information, and the defendant has suffered prejudice as a result. Based upon this aspect of the record, we affirm the Superior Courts holding that the State violated Robinsons 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 societys interest in the administration of criminal justice:
Our cases have accordingly been responsive to proved claims that governmental conduct has rendered counsels 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 societys 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 .
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. 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 societys competing interest in prosecuting criminal conduct. 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. 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 counsels representation or has produced some other prejudice to the defense. 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 defendants right to counsel and a fair trial.
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. Rather, [t]he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression. Thus, the Court held that dismissal was inappropriate.
In Shillinger v. Haworth , the Tenth Circuit observed that dismissal of the indictment could, in extreme circumstances, be appropriate. Other courts have observed that dismissal of a criminal case is a draconian remedy of last resort. The cases uniformly suggest that dismissal of the indictment is appropriate only where the injury is irreparable. For example, courts have held that dismissal is the appropriate remedy where the information has been disclosed to the public domain following trial, where the government has effectively diminished the ability of the defendant to mount a full defense, or where the governments misconduct secured the indictment.
In contrast to Robinsons 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 States work product, releasing Robinson on pretrial supervision, and barring Grubb, Ciritella, or Marvel from working on any of Robinsons cases. The court concluded, however, that those remedies were inadequate. We explain next why this conclusion was error.
1. The Record on Taint Does Not Support Dismissal
The overwhelming weight of the case law, including Morrison , which is binding on this Court, holds that dismissal of an indictment with prejudice (the most severe remedy) should not be imposed absent findings of irreparable prejudice. The overwhelming weight of the evidence here suggests that any taint was contained and did not infect the prosecutors. Downs and Denney both testified that they were unaware of the status of the investigation or of the contents of Robinsons documents. Further, of the four individuals who had access to the documents, Prater, Ciritella, and Marvel testified that they did not share information about the review with Downs or Denney. Grubb, the only other individual with access to the documents, testified that he did not review the documents himself and that he attempted to screen Downs and Denney from the Protective Order investigation. The case had not yet gone to trial and no evidence suggests that any privileged information found its way into the public domain.
We acknowledge that the record is not airtight. We do not have a high level of confidence in the completeness of the States email production, for example. In addition, the questioning of Grubb and Prater could have more thoroughly explored the issue of taint. And it is unclear whether Grubb actually reviewed the documents, given the conflicting testimony on that point. But based upon the record developed after two evidentiary hearings, we conclude that the record does not remotely come close to establishing irreparable taint or prejudice.
2. There is Insufficient Evidence of a Pattern of Misconduct
The Supreme Court in Morrison did suggest in a footnote that a more severe remedy might be appropriate even in cases where the harm is not irreparable, but where there is a pattern of misconduct. Although the States conduct here was egregious, the evidentiary record does not sufficiently establish such a pattern of misconduct.
To the extent the trial court justified dismissal based upon the States potentially similar misconduct in other cases, there is virtually no record evidence other than Ciritellas limited, ambiguous testimony on that issue. His testimony sheds no light on when any such cell searches occurred, who was involved in any such searches, whether the State used a taint team, whether the search occurred during or was related to an ongoing case, whether the State notified opposing counsel or the court, and whether the legal paperwork that was seized was actually privileged. Although, in this case, the State compounded its violation of Robinsons Sixth Amendment rights with its discovery failings and lack of fulsome disclosure to the Court and counsel, the record before us does not sufficiently establish a pattern of recurring violations of defendants Sixth Amendment rights in criminal proceedings.
We are aware of the Superior Courts 2011 transcript ruling in State v. Cannon . In Cannon , unlike here, the State attempted to avoid intruding on the defendants right to counsel by obtaining a search warrant that excluded attorney-client communications. Moreover, when the prosecutors learned that the detective had seized a notebook containing privileged information, they immediately and successfully took steps to prevent their exposure to the content of a notebook. In fact, the Superior Court concluded that the investigating detective did not knowingly, probably not even recklessly, violate the defendants Sixth Amendment rights. The Superior Court followed this Courts approach in Bailey v. State of fashioning a remedy short of dismissal to match or meet the prejudice. Based upon Cannons distinguishable facts, it would be inaccurate to say that the States conduct in Cannon , occurring more than eight years ago, along with its conduct in this case, constitute a pattern of misconduct sufficient to justify dismissal of Robinsons first degree murder indictment.
To be clear, we do not condone the States misconduct. But given that we must carefully balance the competing interests of protecting the constitutional rights of defendants against the competing interests of all Delaware citizens (including victims and their families) in the administration of criminal justice, we conclude that the most extreme remedy possible, namely, dismissal, was unwarranted. A remedy less severe than dismissal of Robinsons indictment can properly be tailored to ensure that Robinsons right to a fair trial is protected. Accordingly, we reverse.
To eliminate what we perceive as a remote possibility of any taint or unfair advantage to the State, and as a sanction for the States misconduct, we will require the disqualification of Downs, Denney, Prater, Grubb, Ciritella, Marvel, and Dempsey from participation in Robinsons trial, along with anyone else who has been exposed through review, discussion, or otherwise of Robinsons privileged materials. In addition, the State is required to destroy all trial work product developed thus far in this case. Notwithstanding the practical implications of these sanctions, this Court expects the State to proceed with appropriate dispatch given the delays that it has caused already in these proceedings.
VII. Conclusion
In sum, we affirm the trial courts conclusion that the State violated Robinsons Sixth Amendment right to counsel as a result of its wrongful and unjustified intrusion into his attorney-client privileged materials. But based upon our assessment of the record, and on our interpretation of Morrisons requirement that the remedy must be tailored to the harm, we reverse the Superior Courts dismissal of the indictment. Although the Superior Court has discretion to sanction litigants, it failed to tailor its remedy to the violation and actual prejudice that it found. The trial courts dismissal of the indictment failed to adequately preserv[e] societys interest in the administration of criminal justice.
Make no mistake that we condemn the States behavior. We warn the State that any further instances of such intentional misconduct may well lead to dismissal of the case in which the misconduct occurs, in addition to other possible sanctions. We are troubled that even during this appeal, the State continued to trivialize the wrongfulness of its conduct. In the event the State again invades a defendants privileged materials, the State must bring to the trial judges attention this Opinion for the purpose of factoring in this case in determining whether the State engaged in a pattern of misconduct.
The fairness of our judicial system is called into question by prosecutorial misconduct of the type that occurred here. Prosecutors are ministers of justice-not merely advocates. [T]he prosecutor represents all the people, including the defendant who was being tried, and [i]t is equally his duty to see that justice be done by giving defendant a fair and impartial trial.
This Court bears ultimate responsibility for protecting the rights of the accused. And because only this Court has the power and responsibility to govern the Bar, we also bear ultimate responsibility for upholding the high standards of professional conduct that we have established for lawyers practicing in this State. In order for our criminal justice system to function fairly, all of those charged with enforcing our laws must act within the confines of our constitutional boundaries. But in the rare case when that does not happen, as here, we are also charged with balancing the harm from such transgressions against the interests that all Delaware citizens (including victims of crime and their families) have in the fair administration of criminal justice and enforcement of our laws. As this Court has said concerning situations involving interference with the assistance of counsel, the remedy should be tailored to the injury suffered and should not unnecessarily infringe upon societys competing interest in the administration of criminal justice. For the reasons set forth above, we reverse the dismissal of the indictment.
We therefore AFFIRM in part and REVERSE in part the Superior Courts September 19, 2017 and May 1, 2018 opinions, and REMAND for further proceedings consistent with this Opinion.
STRINE, Chief Justice, concurring in part, dissenting in part, with TRAYNOR, Justice, joining:
We dissent in part from our colleagues excellent opinion. Like our colleagues, we find the States failure to acknowledge the wrongfulness of its conduct and the seriousness of its intentional, and furtive, violation of a defendants Sixth Amendment rights disturbing and inexcusable. Even on appeal, the State appears not to understand that what it did was wrong.
We also respect the majoritys determination that dismissal was too severe a remedy. The decision of how to remedy a situation like this is difficult, especially when dismissal could result in the defendant being excused from culpability for a serious crime he may have in fact committed. But our trial courts must make difficult judgments like this, and the trial judge here grounded her dismissal order in the record evidence before her, informed by the precise arguments the parties made to her. Because, in our view, her remedial determination is reasonably supported by the record and justified by the seriousness of the misconduct it addresses, we would affirm.
To explain why we would affirm, we start with the way the parties themselves approached the issue before us. The Superior Court was faced with a motion to dismiss, and the State opposed that motion largely on the frivolous ground that its intentional and secretive invasion of the defendants attorney-client communications was not a Sixth Amendment violation. The State proposed no remedy for its breach at all.
As our colleagues acknowledge, the Superior Court did not lightly grant dismissal, but considered the behavior of the State so problematic that it warranted a correspondingly severe remedy. One of the reasons why the behavior was problematic in a remedy-relevant way was that it was not novel and reflected a failure of the Department of Justice (DOJ) to learn from past experience.
As the Superior Court found, one of the States witnesses-the prosecutions chief investigating officer-testified that he had engaged in behavior of this kind before. Perhaps because the DOJ acted in the same deceptive manner that characterized its behavior here, that prior invasion, or perhaps incursion, was not caught or called out. To our minds, it was not the trial judges job to open the record for the State to show that its actions were, taken over time, aberrational, when its own witness said that what they did in this case was a repeat of past behavior. This evidence of recidivist invasions of the attorney-client relationship is particularly troubling because the Superior Court already addressed analogous, if far less extreme, behavior in Cannon v. State . In Cannon , the State inadvertently seized attorney-client privileged materials from a defendants cell after obtaining a search warrant to seize certain other items from the cell. Because the State promptly alerted the trial court to the violation and immediately returned the attorney-client privileged material, the Superior Court found that the appropriate remedy was to limit the testimony of the individual who saw the attorney-client material. But the Superior Court did suggest that a process [ ] be developed if it has not been already so that in the future we dont find ourselves in a similar situation. Despite the warning in Cannon , the State nonetheless proceeded blithely and aggressively in this case. The trial judge was well within her discretion to be concerned that the DOJ did not respond to Cannon s admonition appropriately and, worse yet, continued to be insensitive to the impropriety of its behavior.
As to this point, the majority elides an issue that the trial judge likely found telling. Upon learning that Robinsons legal materials had been taken from his cell, his attorney immediately alerted the Superior Court and requested that the materials be returned. Once this came to the Superior Courts attention, the trial judge requested a prompt response from the State and received two letters. The first, from the lead prosecutor, failed to acknowledge the prosecutions role in the seizure of Robinsons papers and merely stated that I have been advised that materials taken from Robinsons cell has [sic] already been returned or will be returned to him today. Without the second letter from the Department of Correction (DOC) advising the Superior Court that [a]t the request of Department of Justice investigators, the DOC did conduct a search of Robinsons cell on June 30, 2017, and did remove materials from his cell, including legal materials, the Superior Court-and Robinson-might never have learned the full story about the States unlawful behavior. This lack of candor from the criminal division of the DOJ underscores the concerns the Superior Court cited as motivating the severity of its remedy.
This lack of candor extends to other aspects of the record and also has the effect of undercutting the confidence the Superior Court could have in crafting an alternative remedy-a remedy the trial judge considered, despite the States failure to propose any remedy, and specifically rejected. For example, the State failed to produce all relevant documents even after the trial court ordered their production. After producing only three emails and two-pages of handwritten notes, the State asserted that these were the entirety of the documents that exist discussing the search and seizure that the Court had ordered. But at an October hearing, the trial judge was surprised to learn that a witness had not been instructed to search for emails related to this case per the courts prior order. The Superior Court again ordered the State to produce these documents, and after completing a proper search, the State produced more than 37 additional, relevant documents. Attorneys, as officers of the court, should take any command from the court seriously, and especially in a case about potential constitutional violations, the States failure to promptly and thoroughly comply with a court order is alarming and undercuts our confidence in the States ability to implement a clean team solution.
But this was not the only instance in which the State failed to adhere to the Superior Courts commands. Despite prior instructions from the trial court to have all of the people who reviewed [Robinsons] documents testify at an October hearing, the State failed to produce an investigator who, along with the chief investigator, initially reviewed Robinsons documents at the jail. Because of the States failure to follow the trial judges earlier command to have everyone involved testify, she held another hearing a month later to hear from this missing witness. In this instance, the State not only failed to comply with the Superior Courts earlier command, but also delayed the resolution of this case by at least a month because the trial court had to schedule another hearing to complete the record. And the States continued insistence, both below and on appeal, that the prosecutions paralegal who reviewed Robinsons legal materials did not participate in the case after she reviewed the documents, evidences a combination of less than ideal candor, a failure to get it, and a mindset that cuts against reposing undue confidence in the DOJ to faithfully implement a more tailored remedy. The record is indisputable that the paralegal continued to be included in all of the trial teams e-mail traffic about the case until at least July 7, 2014 and was not officially removed from the prosecution team until July 14, 2017, after the Court continued the [originally scheduled] July 11 scheduled trial. If the criminal division took Cannon seriously, it is difficult to understand why the paralegal was not immediately removed from all distribution lists, formal instructions were not given to exclude her from all communications regarding the case, and a stringent clean team approach was not implemented. Instead of conjuring up a clean team remedy on its own initiative, a remedy that would not have been supported by any reasoned input or suggestions from the DOJ and that would require the faithful and diligent implementation by an organization (the DOJ) that did not seem to believe it did anything wrong, the Superior Court decided that granting the motion to dismiss was the most equitable and sufficient option to remedy the States serious misconduct. Given this record and the States failure to propose any viable remedy, we should not second-guess the Superior Courts conclusion that dismissal was appropriate.
Our friends in the majority are right that dismissal has been said to be a disfavored remedy. But this is not a case about an isolated piece of evidence that the State got improperly and could be remedied by exclusion at a new trial. This is a case where the State gained access to the defendants trial strategy, did so secretly, did not come clean when caught, did not exclude a key professional from the trial team until over a week after the violation, and when called to account by the Superior Court, responded in a seemingly guileful and inept manner. For these reasons, we fully understand and cannot fairly second-guess the trial judges view that crafting some sort of clean team remedy going forward would not only fail to deter the State from repeating its admittedly already repetitious behavior, but would require the court to repose confidence that the same group of people who still fail to get it would implement with fidelity and skill a clean team remedy. Forging a clean team solution in any situation like this is challenging; doing so when the organization that has to execute it has not proposed a viable approach of its own, fundamentally does not believe it did anything wrong, and already fumbled its first try at something like it is an exercise necessarily fraught with risk. The trial judges decision that this risk should not be imposed upon the defendant at the instance of the party whose wrongful conduct gave rise to the problem needing solution-and the party that never proposed any alternative solution-is reasonable and deserves respect.
So too is the trial judges view that without a stringent remedy the State has poor incentives to improve its behavior. In a future case, perhaps the State wont be caught. And if it is, it can just insist that there is no harm, and propose no remedy. Even if it loses on that argument, it will get a do over with a new trial team.
This case is like a football team secretly stealing the other teams game plan, not being honest about it when caught, and asking for the game to be played at a later time on a just trust us, the folks who read your game plan will not be involved basis. Except that the stakes here involve a criminal defendants trial strategy and if the game is played later, the defendant will not only face a serious delay in his trial and the corresponding staleness in memories of witnesses, but the quite rational concern that in fact the States prosecution team will have benefited from having access to his trial strategy and can use that access to improve its chances of convicting him.
In this case, the State itself created the stark choice the trial judge faced. Its obstinacy, lack of forthrightness, and failure to propose a confidence-inspiring remedy, or any remedy at all, was its own choice. Confronted with the record the parties created, the trial judge made a tough and well-reasoned decision to remedy serious misconduct with a correspondingly serious remedy. We would affirm.
See App. to Opening Br. at A343 (Downss Testimony) (Q: Has [Prater] provided you any information based upon anything that she did with respect to that portion of the case? Downs: No.); id. at A344-45 (Q: Has [Ciritella] provided any information to you following [the search of Robinsons cell]? Downs: No. Q: Did he even tell you whether he did or did not do that? Downs: He did not, no. Q: And has he had any involvement in the investigation of the prosecution cases that you have described? Downs: No, he has not been involved in the active New Castle City case, the TMG case, or the severed Browntown shooting.).
See also id. at A449 (Denneys Testimony) (Q: And has [Prater] ever communicated - - are you aware that she reviewed any documents that were found in Mr. Robinsons cell? Denney: I do know that she was one of the people that looked at the documents. Q: And has she ever communicated anything to you concerning her review of the documents? Denney: [N]ot at all. Q: And has Special Investigator Ciritella ever communicated anything to you? Denney: No, he has not.).
See id. at A339-40 (Downss Testimony) (Q: And the next line, Paragraph 7 [of Downss affidavit], indicates that you were not involved in the planning, preparation, or execution of the search of Mr. Robinsons cell. Is that true? Downs: Thats true. Q: And finally, have you been told about any of the information that was gathered from Mr. Robinsons cell; either what was gathered, or the substance of anything that was gathered from his cell? Downs: No.... Q: And, in fact, the final paragraph indicates you have no knowledge of the status of that investigation; is that correct? Downs: Thats correct. Q: Other than sitting here today, knowing that this is - - somehow relates to that, do you have any other knowledge about the status of that investigation? Downs: No, I do not.).
See also id at A447-48 (Denneys Testimony) (Q: And after you met with Mr. Grubb, were you provided with any further information by anyone about the status of the investigation into possible violations of the protective order? Denney: No. I remember having an additional quick conversation with Joe Grubb after - - I was copied on an e-mail that Ciritella had sent out, and I went down to Joes office when I saw that e-mail and told him, like, I got copied on something from Ciritella, and he essentially said, Ill handle it. Other than that, no[.] Not involved in planning, preparation, or execution of the search.... Q: And has anyone told you about the contents of anything that was found in Mr. Robinsons cell? Denney: No, not at all. Q: And have you seen anything that was found in Mr. Robinsons cell? Denney: No, not at all.). The record indicates that the email on which Ciritella copied Denney was for scheduling purposes with the DOC. Further, Ciritella testified that it was the only email on which he copied Downs or Denney because Grubb re-instructed him not to include them in anything concerning the review. See id. at A470 (Ciritellas Testimony).
Specifically, Downs and Denney stated in their affidavits that they were not involved in the planning, preparation or execution of the search of Jacquez Robinsons cell, had not been told of, nor have [they] seen, the contents of anything that was found in Jacquez Robinsons cell, and they have no knowledge of the status of the investigation into the violation of the Court Protective Order, beyond the initial investigation prior to the search of Robinsons cell. See id. at A120-21 (Denneys July 10, 2017 Affidavit), A122-23 (Downss July 10, 2017 Affidavit).
See id. at A486 (Ciritellas Testimony) (Q: Did you, following the work that you did on the 30th of June, that Friday, did you adhere to the instructions that Mr. Grubb gave you to not speak to anyone about this case? Ciritella: Thats correct, I did. Q: And, particularly, did you speak with either Mr. Downs or Mr. Denney about anything that you did with respect to Mr. Robinsons cell? Ciritella: No, sir, I did not.).
See also id. at A597-99 (Marvels Testimony) (Q: Were you provided any directions or instructions as to who you could or could not speak to about the things you were doing on the 30th? Marvel: I was told by Mr. Ciritella that it was a sensitive investigation and I was not to discuss it. Q: Okay. With anybody? Marvel: With anyone, yes. Q: Have you discussed what you did on the 30th with anyone? Marvel: No. Q: Have you discussed the substance of any documents you reviewed? Marvel: No.... Q: Did you speak to [Downs or Denney] at any point about this? Marvel: No.... Q: Did you ever speak to Jaime Prater about what you did on the 30th? Marvel: No.... Q: How about Joseph Grubb? Did you speak with him about your work in this matter? Marvel: Prior to or ... Q: Prior to. Lets start with that. Marvel: No. Q: How about after? Marvel: Just to be here today. Q: Okay. You testified that you havent talked about your activity at SCI regarding Mr. Robinsons case with anyone; do I have that right? Marvel: Correct.).
See id. at A523 (Ciritellas Testimony) (Q: And, as you sit here today, do you have any independent recollection of the substance of either set of documents that you were reviewing with Miss Woloshins letterhead? Ciritella: No, sir, I do not.). See also id. at A596 (Marvels Testimony) (Q: Were you or did you read the material that you were working through for substance? Marvel: I did not, no. Q: Do you recall the substance of any of the documents that you were looking through that day? Marvel: I dont, no.).
See id. at A124-29 (Grubbs July 10, 2017 Affidavit).
See id. at A411 (Grubbs Testimony) (Q: And did Miss Prater report on anything substantive to you that was taken from Mr. Robinsons cell? Grubb: No. I didnt ask her to. The only thing I asked her was let me know if you see any of the materials that violate the protective order, and she told me no.); id. at A416-17 (Q: And did you ever review or see any of the documents taken from Mr. Robinsons cell yourself? Grubb: I went into the room that Ciritella put the documents, and I recall Ciritella holding up one document and saying, Its a bunch of this type of stuff, none of which is in violation of the protective order. But, I myself, never reviewed anything. Q: And were you provided, by either Special Investigator Ciritella or Miss Prater, with any information regarding Mr. Robinsons defense strategy? Grubb: No. Q: Did either [Ciritella] or Miss Prater advise you of anything they saw regarding Mr. Robinsons defense strategy? Grubb: No. Q: And besides Miss Prater, [Ciritella], and what you have just testified to about yourself, has anyone else reviewed any of the documents seized from Mr. Robinsons prison cell on the States behalf? Grubb: Not that I am aware of.).
See id. at A518-19 (Ciritellas Testimony).
See id. Ciritella stated that he was not with Grubb during the alleged review, however. Id. at A519 (Q: Were you with him when he looked over the documents? Ciritella: I was not, no.).
Instead, Grubbs affidavit states that [t]he documents were reviewed, and that he had access to them, but he did not specify who, other than Ciritella, did the reviewing-only that [t]he trial prosecutors never saw any of the seized items, nor were they informed as to the content of any seized items. Id. at A128 (Grubbs July 10, 2017 Affidavit).
See id. at A557 (Q: [D]id you tell Ciritella to get the documents back out again and put them in the Homicide conference room? Prater: To get them out and put them back in the Homicide conference room? No. Q: That never happened? Prater: No. Q: Did you ever tell Ciritella that Joe Grubb wanted to look at the documents? Prater: No. Q: Did Joe ever tell you he wanted to look at the documents? Prater: No.).
See id. at A549-50 (Praters Testimony) (Q: During that discussion [with Downs about her removal from the Murder Case], did you have any reason, or did you inform Mr. Downs of anything that you found? Prater: I did not. Q: Since that point in time, or at any time since the 30th of June of this year, have you had any discussions with Mr. Downs or Mr. Denney concerning the tasks that you were asked to perform with respect to documents taken from Mr. Robinsons cell? Prater: Absolutely not.).
Id. at A537-38 (Praters Testimony) (Q: Did you share any of the information that you gleaned from that review of witnesses with anyone else in the Department of Justice? Prater: Joe Grubb. Q: Did you share it with either John Downs or Mark Denney? Prater: No. Q: How about Cliff Dempsey? Prater: No. Q: And did you discuss any of your assessment with John Ciritella? Prater: I did not. I think I turned to him and said I didnt find anything. And thats what I told Mr. Grubb, as well.); id. at A539 (Q: Were you reading and noting any of the substance of what was contained on that legal pad? Prater: I read through the legal pad. I was not noting or retaining the substance. Q: Did you take any notes of that? Prater: No. Q: Did you provide a summary to anyone at all following your review of that material? Prater: I provided a general summary to Joe, but not of the substance; just basically what I reviewed.).
Id. at A534, A537 (Praters Testimony).
See id. at A416-17 (Grubbs Testimony) (Q: And after you removed [Prater], did you provide any instructions to her about her communications with the trial prosecutor? Grubb: I did. She was not to communicate with them at all. (emphasis added) ). In fact, during the gap between her review of the documents and Grubbs instructions not to communicate with Downs or Denney, Prater emailed Downs at least twice with non-substantive updates on the return of Robinsons documents. See App. to Answering Br. at B94 (July 6, 2017 Email from Prater to Downs) (Just so you know ... On Saturday I mentioned to [Ciritella] and Grubb that we should return the documents, Grubb agreed and I thought it had been done.); id. at B101 (July 7, 2017 Email from Prater to Downs) (FYI documents were returned/delivered to [Sussex Correctional Institute] this morning.).
Although it is unclear when the court conducted its in camera review, the record indicates that it initially occurred between the October 25 and November 21 hearings. See App. to Opening Br. at A634-35 (Nov. 21, 2017 Hearing Transcript).
See id. at A233 (States Sur-Reply to Defendants Motion to Dismiss) (Robinson argues that the State acted improperly by requesting the Department of Corrections conduct a search of his prison cell and seize his protected legal communications with his attorneys without obtaining permission from the Court, applying for a search warrant, or establishing probable cause to conduct the search. This argument fails. Robinson has no Fourth Amendment privacy rights in his prison cell. Robinson is well aware of this fact, as this Court, in this case, had issued a ruling earlier this year to that effect. (citation omitted) ); see also id. at A424-25 (Grubbs Testimony) (Q: Why not just get a search warrant? Grubb: Didnt need to. Q: Why? Grubb: Well, you know as well as I do, you legally do not need to.... [Y]ou legally do not need a search warrant to search an inmates cell.).
May 2018 Opinion , 2018 WL 2085066, at *6.
Id. at *7.
Id. at *8. The phone calls that the State relied on as evidence to search Robinsons cell at least partially suggested that Woloshin had complied with the Protective Order and that neither she nor Robinson knew the identities of the witnesses. For example, in response to a question from his mother during a phone call about whether Woloshin knew the witnesses, Robinson replied, [y]eah she dont even know. App. to Opening Br. at A65 (April 18, 2017 Phone Transcript). In the same call, he indicated that he was making assumptions about witnesses: while Im making assumptions of who they are [Woloshin] was like, ah, you cant tell nobody who they are.... So I cant tell you who the witnesses are. Id. at A67.
For example, although the State suspected the possible sharing of witness information with Robinson by May 10, 2017, the State did not take any further action in this investigation until June 9, 2017 when it issued the first subpoena for Defendants phone records. Two more weeks elapsed before the State issued the additional subpoenas. May 2018 Opinion , 2018 WL 2085066, at *9.
Id. at *10.
Id. at *13 (citation omitted).
Id. at *5 ([Grubb] chose to place the documents in a large conference room for review by [Prater]. [Prater] reviewed the documents, which included letters from [Woloshin] to [Robinson] and [Robinsons] handwritten notes on a legal pad and loose pieces of paper. [Praters] review was detailed enough to conclude that [Woloshin] discussed the substance of redacted police reports with [Robinson] and [Prater] reported her conclusions to [Grubb].).
Id. at *10 ; see also id. at *11 (The State did not ... even remove [Prater] until July 14, 2017, after the trial had already been continued.).
Id. at *10 ([Downs and Denney] were not effectively screened from the States Protective Order Investigation. For example, [Downs] directly met with [Grubb] and [Ciritella] before the search to tell [Ciritella] what to search for in the cell. In addition, [Downs and Denney] interviewed the Intermediate Inmate for the second time on June 30, 2017, the same day as the search, seizure, and review. Moreover, [Downs and Denney] were responsible for responding to the Courts initial inquiries about the search of [Robinsons] cell, and facilitated the return of [Robinsons] documents to him.).
Id. at *16.
See, e.g. , App. to Opening Br. at A251-53 (States Sur-Reply to Defendants Mot. to Dismiss Indictment) (arguing that Robinson was not entitled to dismissal, but not proposing any alternative remedy); Oral Argument Video at 18:50-19:09, https://livestream.com/DelawareSupremeCourt/events/8570210/videos/187665632 (Court: If you dont prevail on the only argument you fairly presented below, why dont they win? State: The State did present an argument that dismissal was not appropriate. Court: As a remedy? State: As a remedy. Court: And you proposed what alternative remedy? State: We proposed that there need not be a remedy.).
May 2018 Opinion , 2018 WL 2085066, at *16.
Id. at *17.
App. to Opening Br. at A500-02 (Ciritellas Testimony).
May 2018 Opinion , 2018 WL 2085066, at *13-*14. The Superior Court also criticized the States baseless accusations against Woloshin during the motion to dismiss proceedings:
[D]espite having no evidence in support of its argument, the State has continued to suggest that Defense Counsel engaged in improper behavior. For example, in its most recent submission to this Court, the State wrote, Apparently, to gain trust, [Woloshin] either violated the TMG Protective Order or duped her client into believing she was providing him more than was permitted. The Court finds that the States ad hominem attacks against Defense Counsel are disrespectful and unprofessional, falling short of the Courts expectations for professionalism and civility for Delaware lawyers.
Id. at *13 n.92 (citation omitted). We agree. At the outset, the State could have raised any concerns with Woloshin, which is what happened in In re Koyste , 111 A.3d 581 (Del. 2015). There, the defense lawyer admitted to violating a protective order and self-reported to the judge the same day. As officers of the Court and members of the Delaware Bar, this option merited more serious consideration by the State.
May 2018 Opinion , 2018 WL 2085066, at *17.
Id.
See Cooke v. State , 977 A.2d 803, 840 (Del. 2009).
See Lewis v. State , 2018 WL 619706, at *1 (Del. Jan. 29, 2018) (TABLE) ( Where it is alleged that the Superior Court erred in formulating and applying the law to undisputed facts, we exercise de novo review. (quoting Pendleton v. State , 990 A.2d 417, 419 (Del. 2010) ) ).
North River Ins. Co. v. Mine Safety Appliances Co. , 105 A.3d 369, 380-81 (Del. 2014).
See Gattis v. State , 955 A.2d 1276, 1287 (Del. 2008).
Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (noting that the purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice); Levy , 577 F.2d at 209 (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 United States Supreme Court has also noted that conferences between counsel and accused ... sometimes partake of the inviolable character of the confessional. Powell v. Alabama , 287 U.S. 45, 61, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
See Lockhart v. Fretwell , 506 U.S. 364, 368, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (stating that the essential purpose of the sixth amendment right to counsel is to protect the fundamental right to a fair trial); United States v. Cronic , 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ([T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.).
Robinson has not advanced an argument on appeal that the State has violated the Delaware Constitution.
See Cutillo v. Cinelli , 485 U.S. 1037, 1037, 108 S.Ct. 1600, 99 L.Ed.2d 915 (1988) (White, J., joined by Rehnquist, C.J. and OConnor, J., dissenting from denial of petition for writ of certiorari) (noting a three-way circuit split on the issue of who bears the burden of persuasion for establishing prejudice or lack thereof when the Sixth Amendment violation involves the transmission of confidential defense strategy information); People v. Alexander , 49 Cal.4th 846, 113 Cal.Rptr.3d 190, 235 P.3d 873, 913 n.23 (2010) (We are aware of no decision by the high court in the intervening years that has answered the questions left unresolved in Weatherford -what showing of injury to the defendant or benefit to the State is, in the affirmative , required to prove a Sixth Amendment violation, and who bears the burden of persuasion. (citing Cutillo , 485 U.S. at 1037, 108 S.Ct. 1600 ) ), cert. denied , 563 U.S. 945, 131 S.Ct. 2111, 179 L.Ed.2d 907 (2011).
Weatherford , 429 U.S. at 548, 97 S.Ct. 837. The Fourth Circuits per se rule provided that whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial. Bursey v. Weatherford , 528 F.2d 483, 486 (4th Cir. 1975).
Weatherford , 429 U.S. at 554, 97 S.Ct. 837 (footnote omitted).
Id. at 555.
Id. at 558 (emphasis added).
See 3 Wayne R. LaFave et. al., Criminal Procedure § 11.8 (b) (4th ed. 2018) (Weatherford also does not answer the question of whether a per se Sixth Amendment violation can be established, where the prosecutorial intrusion into the lawyer-client relationship clearly lacks any legitimate justification.).
Morrison , 449 U.S. at 362-63, 101 S.Ct. 665.
Id. at 362, 101 S.Ct. 665.
Id. at 362-63, 101 S.Ct. 665.
Id. at 363, 101 S.Ct. 665.
Id. at 364, 101 S.Ct. 665 (The United States initially urges that absent some showing of prejudice, there could be no Sixth Amendment violation to be remedied. Because we agree with the United States, however, that the dismissal of the indictment was error in any event, we shall assume, without deciding, that the Sixth Amendment was violated in the circumstances of this case.).
Id. at 365, 101 S.Ct. 665 (footnote omitted).
Id.
Id. at 366, 101 S.Ct. 665.
State v. Bain , 292 Neb. 398, 872 N.W.2d 777, 786 (2016) (quoting 3 Wayne R. LaFave et al., Criminal Procedure § 11.8(b) at 848-49 (3d ed. 2007) ); see also United States v. Morales , 635 F.2d 177, 179 (2d Cir. 1980) ([B]ecause the in camera evidence, now unsealed, does not disclose an intentional, governmentally instigated intrusion upon confidential discussion between appellants and their attorneys, the evidence does not support appellants claim of a per se violation of their right to counsel. (citations omitted) ).
See, e.g. , Briggs v. Goodwin , 698 F.2d 486, 493 n.22 (D.C. Cir. 1983) (noting that [a] deliberate attempt by the government to obtain defense strategy information or to otherwise interfere with the attorney-defendant relationship through the use of an undercover agent may constitute a per se violation of the Sixth Amendment (citations omitted) ), rehg granted, opinion vacated, and on rehg , 712 F.2d 1444 (D.C. Cir. 1983).
See Shillinger v. Haworth , 70 F.3d 1132, 1142 (10th Cir. 1995) (holding that an intentional intrusion into the attorney-client relationship must constitute a per se violation of the Sixth Amendment, and that if the government lacks a legitimate justification for doing so, a prejudicial effect on the reliability of the trial process must be presumed); Levy , 577 F.2d at 209 (holding that the inquiry into prejudice must stop where defense strategy material is actually disclosed to the prosecution or the government intentionally sought such confidential information). At least one state has followed this approach. See, e.g. , State v. Quattlebaum , 338 S.C. 441, 527 S.E.2d 105, 109 (2000) (reversing conviction for new trial and holding that a defendant must show either deliberate prosecutorial misconduct or prejudice to make out a violation of the Sixth Amendment, but not both, and that [d]eliberate prosecutorial misconduct raises an irrebuttable presumption of prejudice).
See United States v. Collins , 1991 WL 23558, at *13 (6th Cir. Feb. 26, 1991) (TABLE) ( Even where there is an intentional intrusion by the government into the attorney-client relationship, prejudice to the defendant must be shown before any remedy is granted. (quoting United States v. Steele , 727 F.2d 580, 586 (6th Cir. 1984) ) ).
See United States v. Johnson , 47 F.3d 272, 275 (8th Cir. 1995) (holding that dismissal was improper because, even assuming the government intentionally violated the defendants Sixth Amendment rights, he had failed to demonstrate a nexus between this intrusion and any benefit derived by the prosecution (citing United States v. Davis , 646 F.2d 1298, 1303 (8th Cir. 1981) ) ); United States v. Singer , 785 F.2d 228, 234 (8th Cir. 1986) (To establish a sixth amendment violation, a criminal defendant must show two things: first, that the government knowingly intruded into the attorney-client relationship; and second, that the intrusion demonstrably prejudiced the defendant, or created a substantial threat of prejudice. (citations omitted) ).
See United States v. Danielson , 325 F.3d 1054, 1071 (9th Cir. 2003) ([I]n this circuit we fold the prejudice analysis into the analysis of the Sixth Amendment right itself when the prosecution has improperly interfered with the attorney-client relationship and thereby obtained information about trial strategy. We have construed Weatherford to mean that there is no Sixth Amendment violation unless there is prejudice.).
United States v. Mastroianni , 749 F.2d 900, 907 (1st Cir. 1984) (noting that [l]ike the District of Columbia and Third Circuits, we believe that placing the entire burden on the defendant to prove both disclosure and use of confidential information is unreasonable, but [l]ike the Ninth Circuit, however, we believe that there are certain circumstances in which the revelation of confidential communications by the informant is harmless); see also United States v. DeCologero , 530 F.3d 36, 64 (1st Cir. 2008) ( [T]he governments intrusion into the attorney-client relationship is not a per se Sixth Amendment violation; there must also be some demonstration of resulting prejudice. Because such intrusions pose a serious risk to defendants constitutional rights, and because it would be unreasonably difficult for most defendants to prove prejudice, we only require defendants to make a prima facie showing of prejudice by prov[ing] that confidential communications were conveyed as a result of the government intrusion into the attorney-client relationship. The burden then shifts to the government to show that the defendant was not prejudiced; that burden is a demanding one. (quoting Mastroianni , 749 F.2d at 907-08 ) ).
Mastroianni , 749 F.2d at 908. Courts employing this approach reason that it is virtually impossible for a defendant to demonstrate prejudice because a defendant can only guess at whether and how the information has been used.
See State v. Lenarz , 301 Conn. 417, 22 A.3d 536, 542 (2011). Other states have adopted different standards of proof to rebut a presumption of prejudice or taint. See State v. Robins , 164 Idaho 425, 431 P.3d 260, 271-72 (2018) (holding that a presumption of prejudice exists where the prosecutor gained access to privileged information, and that the presumption was rebuttable by a preponderance of the evidence showing that her arguments during trial had a source independent from the privileged material); State v. Taylor , 49 N.E.3d 1019, 1027 (Ind. 2016) (holding that an irrebuttable presumption of prejudice crosses the line from rightly shielding [defendant] from actual prejudice to granting him a windfall against a potentially still-viable murder prosecution, and that a presumption of taint, rebuttable only beyond a reasonable doubt, strikes a better balance); State v. Fuentes , 179 Wash.2d 808, 318 P.3d 257, 262 (2014) ([W]e hold that the presumption of prejudice arising from such eavesdropping is rebuttable.... The proper standard the trial court must apply is proof beyond a reasonable doubt with the burden on the State.).
292 Neb. 398, 872 N.W.2d 777 (2016).
Id. at 791. In Bain , a prosecutor reported that while going through discovery materials, he came across documents containing confidential communications of defendants original trial counsel that revealed the defenses strategy at that time. Id. at 781.
Levy , 577 F.2d at 210. In Levy , the defendant was represented by an attorney who was also representing a co-defendant. Id. at 202-03. Unknown to the defendant or the attorney, that co-defendant was an informer to the DEA, who attempted to gain information from the informant about the defendants trial preparation. Id.
Id. (emphasis added).
Id. at 208 (The dangers of speculating about possible prejudice are demonstrated most forcefully by the facts of the instant case.).
Id. at 208-09 (emphasis added).
Id. at 210.
Id.
September 2017 Opinion , 2017 WL 4675760, at *4.
740 F.2d 251 (3d Cir. 1984).
Id. at 254-57 (applying the Weatherford test but finding that the facts of the trial courts findings did not implicate Levy because the government did not intentionally invade confidential attorney-client conversations).
Id. at 254 (citing Weatherford , 429 U.S. at 554, 97 S.Ct. 837 ).
Id. at 257.
89 F.3d 1050 (3d Cir. 1996).
Id. at 1070-71 n.9 (citing Morrison , 449 U.S. at 365-66, 101 S.Ct. 665 ); see also United States v. Boffa , 89 F.R.D. 523, 533 (D. Del. 1981) (stating that Morrison effectively repudiated Levy s per se rule).
499 Fed. Appx 187 (3d Cir. 2012).
Id. at 192.
Id. at 192 n.6 (quoting Morrison , 449 U.S. at 365, 101 S.Ct. 665 ).
As discussed above, the trial court concluded that, under Weatherford , a defendant must show prejudice to establish a Sixth Amendment violation. However, it assumed Levys continued viability and concluded that prejudice may be presumed if defense strategy was actually disclosed to the prosecution team. It also held that a deliberate interference with the attorney-client relationship can constitute a Sixth Amendment violation even without a showing of prejudice.
May 2018 Opinion , 2018 WL 2085066, at *14 (citing Morrison , 449 U.S. at 365, 101 S.Ct. 665 ).
Id. at *5, *10.
Id. at *16.
Id.
Id. at *14.
Id.
Id. The State interpreted Ciritellas testimony to mean that he had merely conducted standard cell-raids in the past, rather than searches targeting privileged material. See Oral Argument Video at 14:22-15:08, https://livestream.com/DelawareSupremeCourt/events/8570210/videos/187665632.
In its Opening Brief on appeal, the State argued that the several of the trial courts factual findings are not supported by the record. Specifically, it challenges the courts findings that (1) the State took no steps to screen the prosecution team, (2) Prater learned the details of Robinsons defense strategy, or (3) the State purposefully intruded upon Robinsons confidential communications to gain access to defense strategy or to hamper Robinsons ability to prepare for trial. See Opening Br. at 38, 43. Regarding the first two challenges, the Superior Courts findings are not clearly erroneous. As to the third contention, the trial court did not find that the State intentionally attempted to gain an advantage by invading Robinsons attorney-client information. Rather, it found only that the State had intentionally searched for and reviewed his privileged material. Any other challenges to the trial courts factual findings have been waived. See Murphy v. State , 632 A.2d 1150, 1152 (Del. 1993) (The failure to raise a legal issue in the text of the opening brief generally constitutes a waiver of that claim on appeal. (citations omitted) ).
Morrison , 449 U.S. at 364-65, 101 S.Ct. 665 (emphasis added) (citations omitted); see also id. at 364, 101 S.Ct. 665 (This right [to have the assistance of counsel], fundamental to our system of justice is meant to assure fairness in the adversary criminal process. (citations omitted) ); Robins , 431 P.3d at 269-70 ([T]he prosecutions intrusion into the privileged strategic communications between a client and his attorney weakens the essential and demanding protections inherent in the constitutional right to counsel and undermines the balance necessary in our societys adversarial system of justice.); Bailey v. State , 521 A.2d 1069, 1083 (Del. 1987) (The right of an accused person to have the assistance of counsel for his defense is fundamental to our system of justice and is meant to assure fairness in the adversary criminal process. (citing Gideon v. Wainwright , 372 U.S. 335, 342-44, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ) ).
Morrison , 449 U.S. at 364, 101 S.Ct. 665 ; see also United States v. Walker , 839 F.2d 1483, 1487 (11th Cir. 1988) ([E]ven if we were to deem this a constructive denial of counsel-and we refrain from so deciding-we cannot ignore the mandate of Morrison that the relief must be tailored to the wrong.); LaFave et al., supra note 125 (Of course, under Morrison , even should the unjustified invasion be deemed a per se Sixth Amendment violation, the issue of prejudice becomes relevant in the assessment of the appropriate remedy, which must be tailored to the injury suffered. ).
Singer , 785 F.2d at 234 (citing Wainwright , 372 U.S. at 344, 83 S.Ct. 792 ).
Morrison , 449 U.S. at 365, 101 S.Ct. 665.
Id.
Id.
Id. at 365, 367 (emphasis added).
Id. at 366-67. See also United States v. Blue , 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.... Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book. (citations omitted) ). We also have recognized that the suppression of evidence may leave the government with no case to prosecute. See Rogers v. Morgan , 208 A.3d 342, 352, 2019 WL 1446838, at *8 (Del. 2019) (Had the Superior Court granted the motion to suppress-thereby eliminating the evidence of events that occurred in the home-the State would have no evidence to support its case for resisting arrest. (citation omitted) ).
70 F.3d 1132 (10th Cir. 1995).
Id. at 1143 (citations omitted). The Tenth Circuit pointed to United States v. Bohl , 25 F.3d 904 (10th Cir. 1994) as an example of an extreme circumstance where an indictment was dismissed because the government destroyed potentially exculpatory evidence.
United States v. Stein , 541 F.3d 130, 144 (2d Cir. 2008) (citing Morrison , 449 U.S. at 365, 101 S.Ct. 665 ); see also United States v. Orozco , 916 F.3d 919, 925 (10th Cir. 2019) (holding that the district court abused its discretion in dismissing an indictment with prejudice based on a Sixth Amendment violation rather than ordering a new trial, noting that dismissal is an extraordinary remedy only used in cases of serious and flagrant prosecutorial misconduct, and holding that dismissal was inappropriate because less drastic remedies were available to address the district courts concerns); Virgin Islands v. Fahie , 419 F.3d 249, 254 (3d Cir. 2005) (affirming Appellate Divisions reversal of trial courts dismissal of an indictment, and stating, in all jurisdictions, dismissal with prejudice is in practice a rare sanction for any constitutional violation, and noting that its research discloses no case where a federal appellate court upheld dismissal with prejudice as a remedy for a Brady violation (citation omitted) ); United States v. Isgro , 974 F.2d 1091, 1097 (9th Cir. 1992) (Dismissal of an indictment with prejudice is the most severe sanction possible.); United States v. Solomon , 679 F.2d 1246, 1248-51 (8th Cir. 1982) (holding that the drastic remedy of dismissal was inappropriate even though the governments conduct was highly improper and reprehensible); United States v. Broward , 594 F.2d 345, 351 (2d Cir. 1979) ([T]he sanction [of dismissal] is so drastic that, especially where serious criminal misconduct is involved, it must be reserved for the truly extreme cases).
See United States v. Syed , 1995 WL 216874, at *1 (7th Cir. Apr. 11, 1995) (TABLE) (interpreting Morrison to mean that indictments must not be dismissed unless the governments conduct following the commission of the crime not only is unlawful but also causes irreparable prejudice to the defense of the charge (emphasis added) ); Bohl , 25 F.3d at 914 (dismissing the indictment because of the governments destruction of potentially exculpatory evidence and violation of defendants due process rights); Robins , 431 P.3d at 272 ([D]ismissing the charges should remain an option if the circumstances are such that prejudice arising from the States prior transgression cannot be completely purged or escaped.); Bailey , 521 A.2d at 1086 (In the absence of demonstrable irreparable prejudice, dismissal of an indictment is inappropriate, even though there has been interference with the right to be assisted by counsel. (emphasis added) (citations omitted) ); State v. Pecard , 196 Ariz. 371, 998 P.2d 453, 462-63 (Ariz. Ct. App. 1999) (holding that trial court abused its discretion in dismissing indictments as a result of Sixth Amendment violations since it should have considered lesser remedies assuring defendant a fair trial); LaFave et al., supra note 125 (Apparently, only prejudice that is indelible and holds open the possibility of an unjust conviction would justify the dismissal with prejudice sought in Morrison . (citations omitted) ).
See Levy , 577 F.2d at 210 (suggesting that the prejudice to the defendant was irreparable because the disclosed information was in the public domain); Lenarz , 22 A.3d at 539, 558 (holding that because the prosecutor had reviewed a detailed, explicit road map of the defendants trial strategy, and had tried the case to conclusion, the case is irreversibly tainted and the only available appropriate remedy is dismissal of the charge of which he was convicted).
See Stein , 541 F.3d at 144-46 (holding that harm was irreparable, and therefore dismissal was required, where the government hampered the defendants ability to defend against the indictment by threatening their employer, who had planned to advance legal expenses without any conditions, unless the employer agreed to limit its advancement to the defendants).
United States v. Marshank , 777 F.Supp. 1507, 1524-28 (N.D. Cal. 1991) (dismissing indictment where government schemed with defendants attorney to secure the indictment and the defendants cooperation).
Other courts have held that it is incumbent on the court, sua sponte , to devise an adequate remedy to cure any prejudice to the defendant, even in the absence of any request by the parties. See, e.g. , Bain , 872 N.W.2d at 793 ([W]hen a court is presented with evidence that the State has become privy to a defendants confidential trial strategy, it must sua sponte conduct an evidentiary hearing that requires the State to prove that the disclosure did not prejudice the defendant, and it must also give the defendant an opportunity to challenge the States proof.). Given that Robinsons Sixth Amendment rights must be balanced against the competing interest in the administration of justice, and even if faced with an all or nothing proposal from the parties, the trial court should, sua sponte , and as required by Morrison , consider what remedies might be appropriately tailored to the harm.
See supra notes 86-89 and accompanying text.
It noted that the record did not reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter further lawlessness. Morrison , 449 U.S. at 365 n.2, 101 S.Ct. 665.
Case ID No. 1001007728 (Del. Super. Ct. Jan. 3, 2011) (Ex. C to Opening Br.). Both parties cite to several post-Morrison Sixth Amendment decisions in Delaware, namely: Bailey , Cannon , and Puryear v. State , 2000 WL 975055 (Del. May 30, 2000) (TABLE). Those cases, however, are factually distinguishable in important ways. First, in none of them did the State specifically target attorney-client privileged communications. Second, there was no indication that any member of the prosecution teams reviewed privileged material.
Cannon , Case ID No. 1001007728, at 4-5, 7-8.
521 A.2d 1069 (Del. 1987).
App. to Answering Br. at B141.
For example, a new prosecution team with no exposure to this case could try the case without any potential threat to the fairness of the trial, particularly since this case was still in its pretrial stage. See Singer , 785 F.2d at 232 (denying motion to dismiss where the government knowingly gained access to the defendants trial strategy, and instead limiting the possible taint by prohibiting the involvement of any government attorney or investigator previously involved and by appointing out-of-state federal prosecutors); Quattlebaum , 527 S.E.2d at 109 (reversing murder conviction and disqualifying prosecutors office that intentionally eavesdropped on privileged conversations from participating in the defendants retrial).
Morrison , 449 U.S. at 364, 101 S.Ct. 665 ; see also United States v. Gonzales , 164 F.3d 1285, 1292-93 (10th Cir. 1999) (upholding the district courts finding that the governments conduct was the product of extreme bad faith, but concluding that the court abused its discretion in imposing the most severe sanctions of complete suppression of witnesses statements for discovery violations since prejudice to the defendants was not irreparable).
We do not mean to rule out the possibility of other possible sanctions for the wrongdoing here. Based upon the representations made to this Court during oral argument, we trust that the Attorney General is actively reviewing this matter and will ensure that measures are taken within the DOJ (including a departmental review of the conduct and development of appropriate policies and training) to ensure against further such misconduct.
See, e.g. , Opening Br. at 23 (Even if the State improperly intruded on the attorney-client privilege in this case and/or Robinsons seized documents contained defense strategy, the court wrongly presumed prejudice.); id. at 38 ([W]hile the State could have done things better in this case, as it conceded at the evidentiary hearing, nothing in the record supports the courts finding that Robinson suffered any prejudice.); Reply Br. at 11 (As discussed in the States opening brief, all witnesses testified that, while not perfect, the ad hoc screen was effective.); Oral Argument Video at 1:05, https://livestream.com/DelawareSupremeCourt/events/8570210/videos/187665632 ([W]hile the procedure could have been better, it was ultimately effective.).
See McCoy v. State , 112 A.3d 239, 262 (Del. 2015) (recognizing that a prosecutor has special responsibilities as a minister of justice and not simply ... an advocate (quoting Del. Lawyers R. Profl Conduct 3.8 cmt. [1] ) ); see also Del. Lawyers R. Profl Conduct R. 4.4(a) (In representing a client, a lawyer shall not ... use methods of obtaining evidence that violate the legal rights of such a person.); Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.).
McCoy , 112 A.3d at 262 (quoting Hooks v. State , 416 A.2d 189, 204 (Del.1980) ).
In re Infotechnology, Inc. , 582 A.2d 215, 216-17 (Del. 1990).
Bailey , 521 A.2d at 1084 (citations omitted).
We agree and concur with our colleagues that the State violated Robinsons Sixth Amendment rights and that he suffered actual prejudice. Majority Opinion at 54-55.
See State v. Robinson , 2018 WL 2085066, at *6 (Del. Super. Ct. May 1, 2018) (The State argues that it was legally justified to conduct an independent and unauthorized search, seizure, and review of Defendants attorney-client communications. Specifically, the State contends that it was not obligated to seek a warrant for its search because inmates have no Fourth Amendment protections in prison cells.); App. to Opening Br. at A717 (States Answering Post-Hearing Brief (Jan. 26, 2018) ) ([T]he State did not purposefully intrude upon confidential communications between Robinson and his attorney.).
App. to Opening Br. at A723-30 (Thus, even assuming a Sixth Amendment violation, Robinson fails to establish that he suffered prejudice of any kind, either transitory or permanent, to the ability of his counsel to provide adequate representation in these criminal proceedings or to his right to receive a fair trial. There is thus no factual basis supporting the drastic relief [dismissal] sought by Robinson.).
Robinson , 2018 WL 2085066, at *14 ([A] States witness testified that he has previously conducted similar searches targeting a defendants legal documents in other cases.); see also App. to Opening Br. at A500 (Chief Investigative Officer Ciritellas Testimony (Oct. 25, 2017) ) (Q: Have you ever done a search like this before. A: Yes, sir. Q: So let me be specific. Have you done a, I am going to call it a seizure and review of an inmates legal paperwork? A: Yes. Q: Okay. And I dont want you to say case name, or anything. To your knowledge, were those pursuant to a search warrant, or anything like that? A: No sir, they were not.); id. at A501-02 (Q: So if a person is not supposed to have their police reports, they have their police reports anyways and you found them in cells? A: Youre asking if I have ever done it before. Yes, I have. But theres other documents that I also look for. Q: Okay. 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? A: I think maybe one other time.).
See State v. Cannon , No. 1001007728, slip. op. at 12-13 (Del. Super. Ct. Jan. 3, 2011); see also Exhibit C to Opening Br. at 12-13.
See Cannon , slip. op. at 7; see also Exhibit C to Opening Br. at 7.
App. to Opening Br. at A71-72 (email from Natalie Woloshin to Judge Parkins et. al. (July 5, 2017) ) (alerting the court to the fact that on June 30, 2017 Robinsons materials were taken from his cell and requesting the court take action to protect Robinsons right to counsel).
Id. at A114 (email to Judge Parkins from John Downs (July 7, 2017) ).
Id. at A117 (letter to Judge Parkins from Gregory Smith (July 7, 2017) ).
Robinson , 2018 WL 2085066, at *13 (observing that [t]he States conduct was also in direct conflict with the fundamental role and duty of prosecutors); id. at *14 (The State has ignored the fundamental importance of the Sixth Amendment right to the assistance of counsel and the attorney-client privilege, has demonstrated a disregard for Defendants constitutional rights, and has exhibited a cavalier approach to the proceedings addressing its conduct.).
Id. at *16-17 (Although the State has not even suggested an alternative remedy, the Court has considered, for example, requiring that all members of the Prosecution Team be replaced on any of the cases involving Defendant and that any work product they developed be destroyed so that a new prosecution team would have to develop a new strategy without any taint from the Protective Order Investigation .... This Court concludes, after careful review of the record and after much consideration, that these remedies are 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.).
See State v. Robinson , 2017 WL 4675760, at *6 (Del. Super. Ct. Sept. 19, 2017) (As a starting point, the State must respond to Robinsons Motion Counsels request for production of documents.); id. at *6 n.43 (The Court addressed discovery in its August 21, 2017 office conference. Presumably, all relevant documents have already been produced, including email messages discussing the search and seizure. If said production has not yet taken place, the State shall produce documents responsive to Motion Counsels request within five (5) business days of this order.); see also App. to Opening Br. at A226 (Reply to States Answer to Defendants Motion to Dismiss (Aug. 11, 2017) ) (requesting production of all communications between the DOJ and DOC regarding the seizure and review of the legal documents produced and any memoranda, notes, or other documents drafted by the review team be produced); id. at A277 (Office Conference (Aug. 21, 2017) ) (the Superior Court ordering a production hold on all e-mails and text messages).
App. to Opening Br. at A284 (Transcript of Court Decision (Sept. 26, 2017) ).
Id. at A577 (Transcript of Hearing (Oct. 25, 2017) ) (THE COURT: ... [T]he Court expected that the State would produce all of the documents responsive to [defense counsels] requests.).
Id. at A576 (THE COURT: ... But the other piece of information that surprised me today was [the paralegals] testimony that she had not done an e-mail search, and that she had not been asked to do a e-mail search. I think that is inconsistent with what my expectation were, because [defense counsel], I think, made a request for documents.); id. at A578 (THE COURT: ... I want the e-mail search done if it hasnt been done, and I want all of the documents produced.).
See App. to Answering Br. at B59-60 (Letter from the State to Judge Rocanelli (Nov. 16, 2017) ).
App. to Opening Br. at A505 (Transcript of Hearing (Oct. 25, 2017) ).
Id. at A502.
See generally id. at A582-661 (Transcript of Hearing (Nov. 21, 2017) ).
See, e.g. , Oral Argument at 2:21-30 (She [the paralegal] did not participate in actively in the case after her review of the records.). Answering Br. at 15-16; App. to Opening Br. at A711-12 (States Answering Post-Hearing Br. (Jan. 26, 2018) ); id. at A722-23 (Although [the paralegal] did have access to the seized materials, the evidence---affidavits and hearing testimony-establishes that [the paralegal] did not discuss with or pass on any details or information regarding Robinsons trial plans, strategy, or the contents of anything that was found in Robinsons cell to the trial prosecutors. [The paralegal] communicated her findings exclusively to [the Chief Investigator] and the [Chief Prosecutor]. [The paralegal] has been removed from this case and will not provide any assistance to the prosecutors.) (footnote omitted).
See generally App. to Answering Br. at B61-132 (States Final Response to Order for Production (Nov. 16, 2017) ).
Robinson , 2018 WL 2085066, at *6 (footnote omitted); see also App. to Answering Br. at B44-45 (email from John Downs to Judge Parkins (July 7, 2017) ) (discussing jury instructions and copying the paralegal on the email after she had reviewed Robinsons documents); id. at B64 (email from John Downs to Jamie Prater et. al. (July 14, 2017) ) (removing the paralegal from the prosecution team); id. at B94 (email from Jamie Prater to John Downs (July 6, 2017) ) (discussing the case after the paralegal had reviewed the documents).
See, e.g. Morrison v. United States , 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) (referring to dismissal as a drastic remedy).
During the two evidentiary hearings and briefing below, the State did not argue that its investigators did not come upon Robinsons trial strategy during its review of Robinsons attorney-client communications. And at oral argument in this Court, the State confirmed that it cannot dispute the Superior Courts factual finding that the document review disclosed Robinsons trial strategy. Oral Argument at 20:47-21:23.
Robinson , 2018 WL 2085066, at *16-17 (Although the State has not even suggested an alternative remedy, the Court has considered, for example, requiring that all members of the Prosecution Team be replaced on any of the cases involving Defendant and that any work product they developed be destroyed so that a new prosecution team would have to develop a new strategy without any taint from the Protective Order Investigation .... This Court concludes, after careful review of the record and after much consideration, that these remedies are 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.).
Id. at *17 (The constitutional rights of criminal defendants must be respected by the State and the rule of law demands accountability of prosecutors to the Court. The nature of the violations of this Defendants Sixth Amendment right to the effective assistance of counsel require dismissal of the Indictment because any lesser sanction would unduly depreciate the seriousness of the States actions and the extent to which the States actions put at risk the most fundamental constitutional protections.) (footnote omitted).