State v. Robinson ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) I.D. No. 1411017691
)
JACQUEZ ROBINSON )
Submitted: August 21, 2017
Decided: September 19, 2017
Modified: October 17, 2017*
MEMORANDUM OPINION
Upon Defendant’s Motion to Dismiss Indictment
ORDER ADDRESSING STANDARD
AND SCOPE OF COURT REVIEW
Sean P. Lugg, Esq., Department of Justice, Attorney for the State of Delaware
Patrick J. Collins, Esq., Collins & Associates, Attorney for Jacquez Robinson
Rocanelli, J.
*This decision was initially issued under seal. Per the Court’s Order dated October
11, 2017, this matter will proceed on the public record. Also, in the meantime,
counsel of record for the State has changed.
On March 2, 2015, Defendant Jacquez Robinson (“Robinson”) was indicted
on the following charges related to two separate incidences: two counts of Murder
First Degree, Robbery First Degree, seven counts of Possession of a Firearm During
the Commission of a Felony, Conspiracy Second Degree, two counts of Reckless
Endangering First Degree, two counts of Assault First Degree, and other related
charges. The charges arose from two separate shooting incidents which allegedly
took place on November 25 and November 26 in 2014. The November 25 incident
allegedly resulted in serious physical injury to two people (“November 25 Assault”).
The November 26 incident allegedly resulted in the death of one person (“November
26 Murder”). The charges related to the November 25 Assault were severed from
charges related to the November 26 Murder.1
Trial on the charges related to the November 26 Murder was scheduled to start
on July 11, 2017 (“Murder Case”). On June 12, 2017, the Court issued a protective
order in the Murder Case (“Murder Protective Order”). By its terms, the Murder
Protective Order expired on July 6, 2017. Trial on the charges related to the
November 25 Assaults is not scheduled (“Assault Case”).
In addition, Robinson was separately indicted in a multi-defendant case
involving alleged gang participation in a gang referenced as the Touch Money Gang
1
The Murder Case is designated as Case No. 1411017691A and the Assault Case
is designated as Case No. 1411017691B.
1
(“TMG Case”).2 On August 24, 2016, the Court issued a Protective Order for the
TMG Case (“TMG Protective Order”) in advance of an October 2016 trial date. The
October 2016 trial was continued and a new date has not been set. The TMG
Protective Order remains in effect.
Natalie Woloshin is counsel of record for Robinson (“Robinson’s Trial
Counsel”) in the three pending criminal cases, the Murder Case, the Assault Case,
and the TMG Case.
According to the State, during trial preparation for the Murder Case,
prosecutors Mark Denney and John Downs (“Trial Prosecutors”) became concerned
that Robinson’s Trial Counsel had disclosed witness information (“Protected
Witness Information”) to Robinson.3 The Trial Prosecutors brought their concerns
to the attention of New Castle County Chief Prosecutor Joseph Grubb. An
investigation was initiated by the State (“Protective Order Investigation”). Until
June 30, 2017, Trial Prosecutors were actively involved in the Protective Order
Investigation, including listening to Robinson’s phone calls. In addition, Mr. Grubb
assigned Chief Special Investigator John Ciritella to the Protective Order
2
Case No. 1411005401A&B.
3
The State initially represented that the Trial Prosecutors were concerned that both
protective orders had been violated. However, the State eventually conceded that
their concerns related exclusively to the TMG Protective Order. The Court notes
that the Murder Protective Order had not yet been issued as of the date on which the
State explains that concerns arose about Robinson’s access to Protected Witness
Information.
2
Investigation, and authorized Mr. Ciritella to work with the Department of
Correction (“DOC”).
The Department of Justice (“DOJ”) directed the DOC to conduct a search of
Robinson’s cell. On June 30, 2017, DOC officials entered Robinson’s cell without a
warrant and seized Robinson’s legal documents.4 Ciritella examined Robinson’s
legal documents in a separate room at the prison to determine if the documents
contained Protected Witness Information. According to the State, some documents
were immediately returned to Robinson while other documents were taken for
further review to the DOJ (“DOJ”). At the DOJ, Mr. Ciritella, Mr. Grubb, and
paralegal Jamie Prater had access to Robinson’s legal documents. Ultimately, the
State concluded that none of the legal documents seized contained Protected Witness
Information. According to the State, the remainder of Robinson’s documents were
returned to Robinson on July 7, 2017.
4
There is a dispute regarding what documents were seized. The State asserts that
only twelve typed documents and five letters were seized. Robinson asserts that
DOC seized 19 large envelopes and 42 letter sized envelopes containing
correspondence with Robinson’s Trial Counsel, one large envelope labeled “Public
Defender + Commissary,” one large envelope labeled “Notes” that contained
personal notes and questions for Robinson’s Trial Counsel, and one large black
envelope containing Defendant’s notes on his meetings with Robinson’s Trial
Counsel.
3
The State contends that Trial Prosecutors were not involved in the search and
seizure and did not review any of Robinson’s legal documents. However, Jamie
Prater has been identified as a member of the prosecution team.
Robinson’s Trial Counsel filed a motion to dismiss the indictment (“Motion
to Dismiss”) on behalf of Robinson on July 7, 2017 contending that the search of
Robinson’s prison cell and seizure by the State of Robinson’s legal documents
violated his Sixth Amendment rights. Patrick Collins was appointed as Robinson’s
counsel for presentation of the Motion to Dismiss (“Robinson’s Motion Counsel”).
The State opposes Robinson’s Motion to Dismiss.
The Motion to Dismiss was originally presented to the Honorable John A.
Parkins as the trial judge assigned to the Murder Case. Judge Parkins recused
himself from consideration of the Motion to Dismiss, which was assigned to this
Judge. The State requested that the Court’s proceedings related to the Motion to
Dismiss proceed under seal and the Court has honored that request for the time being.
Discussion
The threshold dispute between the parties is the applicable standard for
evaluating a potential Sixth Amendment violation. There are three separate issues
that the Court must consider. First, what is the standard for establishing a Sixth
Amendment violation? Second, what is the scope of the inquiry for application of
4
the standard to the facts of this case? Third, if a violation is established, what is the
appropriate remedy? This decision addresses the first two questions.
I. The Standard for Establishing a Sixth Amendment Violation Where
the State Has Intruded into the Attorney-Client Relationship
Addressing intrusion by the state into a defendant’s attorney-client
relationship, the United States Supreme Court concluded in Weatherford v. Bursey
that there must be prejudice to establish a Sixth Amendment violation. 5 Applying
Weatherford, the Third Circuit adopted a three-prong test.6 In addition, in Levy, the
Third Circuit adopted a presumption of prejudice approach that applies in one
limited circumstance.7 Moreover, in Morrison, the Third Circuit addressed a
deliberate interference with the attorney-client relationship.8
A. Weatherford v. Bursey
In Weatherford, Brett Bursey and Jack Weatherford were arrested after
vandalizing a selective service office.9 However, Weatherford was an undercover
agent who was only arrested to maintain his undercover status.10 Believing
5
429 U.S. 545, 558 (1977).
6
United States v. Costanzo, 740 F.2d 251, 254 (3d Cir. 1981), cert. denied, 472 U.S.
1017 (1985).
7
United States v. Levy, 577 F.2d 200, 209-10 (3d Cir. 1978).
8
United States v. Morrison, 602 F.2d 529, 532 (3d Cir. 1979), rev’d on other
grounds United States v. Morrison, 449 U.S. 361 (1981).
9
Weatherford, 429 U.S. at 547.
10
Id.
5
Weatherford to be a co-defendant in the ensuing criminal case, Bursey and his
counsel invited Weatherford to attend trial preparation meetings. 11 Although
Weatherford attended these meetings, he did not share any information learned
during the meetings with his superiors or the prosecution team. 12 However,
Weatherford did ultimately testify in the case against Bursey, who was convicted.13
Bursey brought an action against Weatherford asserting that Weatherford’s
conduct violated Bursey’s Sixth Amendment right to counsel as guaranteed to him
by the Fourteenth Amendment.14 The district court found for Weatherford, but the
Fourth Circuit Court of Appeals reversed.15 The Fourth Circuit stated that the “right
to counsel is sufficiently endangered” to warrant a remedy whenever the prosecution
knowingly or deliberately intrudes into the attorney-client relationship.16 Thus, the
Fourth Circuit held that Bursey did not need to make a showing of prejudice to
support his Sixth Amendment claim.17
The United States Supreme Court reversed, holding that there could be no
Sixth Amendment violation “unless Weatherford communicated the substance of the
11
Id. at 548.
12
Id.
13
Id. at 549.
14
Id. (bringing suit under 42 U.S.C. § 1983 (“Section 1983”)).
15
Id.
16
Bursey v. Weatherford, 528 F.2d 483, 486 (4th Cir. 1975), rev’d 429 U.S. 545
(1977).
17
Id. at 487.
6
[attorney-client] conversations and thereby created at least a realistic possibility of
injury to Bursey or benefit to the State.”18 In other words, Bursey could not establish
that he had suffered a Sixth Amendment violation unless he suffered prejudice as a
result of Weatherford’s actions.
The Weatherford Court then considered what could have constituted prejudice
to Bursey, and stated:
Had Weatherford testified at Bursey’s trial as to the conversation
between Bursey and [Bursey’s lawyer]; had any of the State’s evidence
originated in these conversations; had those overheard conversations
been used in any other way to the substantial detriment of Bursey; or
even had the prosecution learned from Weatherford … the details of the
[attorney-client] conversations about trial preparations, Bursey would
have a much stronger case.19
In addition, the Weatherford Court considered the fact that there was “no
tainted evidence, no communication of defense strategy to the prosecution, and no
purposeful intrusion by Weatherford.”20 Ultimately, the Weatherford Court
concluded that, because Weatherford’s conduct caused no prejudice to Bursey, there
was no violation of his Sixth Amendment rights.
18
Weatherford, 429 U.S. at 558.
19
Id. at 554.
20
Id. at 558.
7
B. Third Circuit Application of Weatherford
The Third Circuit established in Costanzo that there are three branches to the
Weatherford test.21 According to the Third Circuit, there is a violation of the Sixth
Amendment when the government “intentionally plants an informer in the defense
camp;” when an informer discloses confidential defense strategy to the prosecution;
or where there is no intentional intrusion or disclosure but a disclosure still
prejudices the defendant.22
C. Levy’s Presumption of Prejudice Approach
Furthermore, the Third Circuit also adopted a presumption of prejudice
approach that applies only in one limited circumstance.23 In Levy, the Third Circuit
stated that Weatherford did not actually adopt an actual prejudice test in all
circumstances.24 In examining the United States Supreme Court’s examples of what
would have constituted prejudice in Weatherford, the Third Circuit reasoned that the
“Court was suggesting by negative inference that a sixth amendment violation would
be found where, as here, defense strategy was actually disclosed” to the
prosecution.25 In other words, the Third Circuit held that no additional prejudice
21
Costanzo, 740 F.2d at 254.
22
Id.
23
Levy, 577 F.2d at 209; See also Costanzo, 740 F.2d at 257 (providing that Levy
did not apply because the circumstances of Levy were not present in the case).
24
Id. at 209.
25
Id. at 210.
8
under Weatherford need be found where an actual disclosure has occurred.26 Thus,
Levy holds 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.”27
D. Presumption of Prejudice if Defense Strategy Actually Disclosed to the
Prosecution or Government Deliberately Interferes with the Attorney-
Client Relationship
There has been some confusion over whether Levy is still good law following
the United States Supreme Court’s decision in Morrison. In Morrison, two DEA
agents approached a defendant to seek her cooperation in an investigation on two
occasions after the defendant had been indicted and retained counsel.28 The
defendant consistently refused to cooperate and did not provide any incriminating
information, even after the DEA agents disparaged the defendant’s attorney.29 The
defendant moved to dismiss the indictment on the ground that the DEA agents’
actions violated the defendant’s Sixth Amendment rights, but did not make any
showing of prejudice.30 The district court denied the motion and the defendant
appealed to the Third Circuit.
26
Id.
27
Id. at 209.
28
Morrison, 449 U.S. at 362.
29
Id. at 362-63.
30
Id. at 363.
9
The Third Circuit concluded that Weatherford did not preclude the finding of
a Sixth Amendment violation in the circumstances presented because Weatherford
did not deal with a purposeful attempt to interfere with the attorney-client
relationship.31 Indeed, the Third Circuit found in Morrison that there had been a
Sixth Amendment violation based on “a deliberate attempt to sever or otherwise to
interfere with the attorney-client relationship.”32 In considering the appropriate
remedy for the Sixth Amendment violation, the Third Circuit applied Levy’s remedy
analysis and concluded that, as was the case in Levy, the violation was “not amenable
to remedy through suppression or reversal of conviction.”33 Accordingly, the Third
Circuit only relied on Levy’s remedy analysis in Morrison.
The United States Supreme Court reversed, stating that the issue before the
Court was “whether [the] extraordinary relief [of dismissal] was appropriate in the
absence of some adverse consequence” to the defendant.34 Thus, the United States
Supreme Court assumed that there was a Sixth Amendment violation, and only
considered the appropriateness of the remedy as applied by the Third Circuit.35 The
United States Supreme Court ultimately concluded that dismissal of the indictment
was inappropriate because the remedy for a violation must be tailored to the injury
31
Morrison, 602 F.2d at 532.
32
Id.
33
Id. at 533.
34
Morrison, 449 U.S. at 363-64.
35
Id. at 364.
10
suffered, and that defendant did not suffer injury sufficient to warrant dismissal of
the indictment.36
Despite the focus of the United States Supreme Court in Morrison solely on
the appropriate remedy for a Sixth Amendment violation, the Third Circuit
subsequently questioned the continued validity of Levy’s presumption of prejudice
approach. In Voigt, the Third Circuit stated in a footnote, “[T]o 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 held to the contrary.”37 In Mitan, the Third Circuit
stated that Levy’s interpretation of Weatherford was called into question in
Morrison.38 However, the Third Circuit went on to state that it “need not address
the question of whether Morrison precludes the presumption of prejudice approach
adopted in Levy” because the facts required to trigger Levy were not present.
This Court concludes that Morrison should not be read to disrupt Levy’s
presumption of prejudice approach because Morrison dealt solely with the
appropriate remedy for a Sixth Amendment violation, not the prejudice standard
required to establish a Sixth Amendment violation. The Third Circuit did not utilize
the presumption of prejudice approach in Morrison and the Supreme Court did not
comment on that approach. As a result, this Court holds that the prejudice standard
36
Id. at 364-65.
37
Voigt, 89 F.3d at 1071 n. 9 (citing Morrison, 449 U.S. at 361, 365-66).
38
Mitan, 499 Fed.Appx at 192 n. 6.
11
for establishing a Sixth Amendment violation remains the same as it was before
Morrison, and includes the presumption of prejudice approach under a limited
circumstance involving actual disclosure of defense strategy to the prosecution.
Therefore, if Robinson’s defense strategy was actually disclosed to the prosecution,
prejudice is presumed.
In addition, the Court notes that the United States Supreme Court in Morrison
did not question the Third Circuit’s conclusion that a deliberate attempt to interfere
with the attorney-client relationship can result in a Sixth Amendment violation. The
United States Supreme Court merely considered the appropriate remedy for that
Sixth Amendment violation. Thus, this Court concludes that there may be
circumstances falling outside the Weatherford framework that allow the Court to
find a Sixth Amendment violation based on a deliberate attempt to interfere with the
attorney-client relationship.
E. Burden of Proof in Establishing Prejudice if Defense Strategy was Not
Actually Disclosed or There was No Deliberate Interference with the
Attorney-Client Relationship
Just as the United States Supreme Court did not clearly define prejudice in
Weatherford, the Court also did not explain which party bears the burden of proof
in establishing prejudice. In the specific context of Weatherford, the Court stated
that Bursey did not meet the burden of proof required to make out his Section 1983
12
claim.39 Although the Supreme Court did not specify that a defendant would bear
the burden of establishing prejudice outside of the Section 1983 context,
Weatherford suggests that the defendant has the burden of proof. Moreover, while
Morrison deals only with the prejudice necessary to obtain a certain remedy, i.e.
dismissal, and not the prejudice required to establish a Sixth Amendment violation
in the first place, Morrisson imposes a burden of proof on the defendant. The
Delaware District Court has followed this approach. Specifically, in United States
v. Boffa, the Delaware District Court addressed the burden of proof to establish
prejudice and imposed the burden of proving prejudice on the defendant.40
Accordingly, this Court finds that it is consistent with decisional precedent to
impose the burden of proof on Robinson.41 Accordingly, as long as there is no
presumption of prejudice because Robinson’s defense strategy was actually
disclosed to the prosecution, or the Court does not find a Sixth Amendment violation
based on a deliberate attempt to interfere with Robinson’s attorney-client
relationship, then the burden of proof to establish prejudice is on Robinson. If either
39
Weatherford, 429 U.S. at 558.
40
United States v. Boffa, 89 F.R.D. 523, 533 (D. Del. 1981) (stating that under
Morrison, a defendant bears the burden of proving prejudice).
41
The Delaware Superior Court has also addressed an intrusion by the State into the
attorney-client relationship in State v. Cannon, ID. No. 1001007728, at 9-13 (Del.
Super. Jan. 3, 2011) (TRANSCRIPT). However, the State in Cannon conceded that
the defendant’s Sixth Amendment rights had been violated by the State’s actions and
therefore Cannon does not provide any guidance on the burden of proof for the
prejudice inquiry.
13
of the requirements for the Levy presumption of prejudice approach do not apply, or
if the Court concludes there was not a deliberate attempt to interfere with the
attorney-client relationship, Robinson may establish prejudice by relying on the
three-prong Weatherford test, which provides that there is a violation of the Sixth
Amendment when the government “plants an informer in the defense camp;” when
confidential defense strategy is disclosed to the prosecution; or when there is not an
intentional intrusion or disclosure of confidential defense strategy, but a disclosure
otherwise causes some prejudice.42
F. Conclusion Regarding Prejudice Standard
Under Weatherford, there must be a showing that Robinson suffered prejudice
as a result of the warrantless seizure of his legal materials from his cell to establish
that there was a Sixth Amendment violation. Prejudice can only be presumed under
Levy if there was actual disclosure of Robinson’s defense strategy to the prosecution
team. In addition, the Court may find that there was a Sixth Amendment violation
if there was a deliberate attempt to interfere with Robinson’s attorney-client
relationship. If prejudice is not presumed because there was no actual disclosure of
defense strategy, or if there was not a deliberate attempt to interfere with the
attorney-client relationship, then Robinson has the burden to establish prejudice.
42
Costanzo, 740 F.2d 251 (1984).
14
II. The Scope of Inquiry in the Present Case
Robinson’s Motion Counsel must have the opportunity for a meaningful
review of the documents seized from Robinson’s cell. As a starting point, the State
must respond to Robinson’s Motion Counsel’s request for production of
documents.43 Next, the State shall produce any copies of the seized documents that
were retained. To the extent that copies of documents seized were not retained,
Robinson’s Motion Counsel shall contact Robinson’s Trial Counsel to ascertain
whether the documents that were seized and returned may be copied for a review by
the Court. Upon in camera review, the Court will determine which documents, if
any, should be made available to Robinson’s Motion Counsel and Mr. Grubb.
Finally, a hearing shall be conducted and the State shall produce witnesses, including
Jamie Prater and Mr. Ciritella, as well as any other persons who were involved in
the decision to seize legal documents from Robinson’s cell and/or who reviewed the
seized documents.
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 Counsel’s request
within five (5) business days of this order.
15
The Court must make several determinations, including:
(i) Was Robinson’s defense strategy actually disclosed to the State?
(ii) Did the State deliberately interfere in the attorney-client
relationship?
(iii) What access to Robinson’s legal materials did the Trial
Prosecutors have before June 30, 2017?
(iv) What steps were taken by the State to establish a screen between
the Trial Prosecutors and the Protective Order Investigation?
(v) Were Robinson’s Sixth Amendment rights adequately protected
by screening the Trial Prosecutors after June 30?
(vi) What access, if any, to Robinson’s legal materials did the Trial
Prosecutors have after June 30, 2017?
(vii) What legal documents were seized from Robinson’s cell and who
had access to those documents?
(viii) What is the role of paralegal Jaime Prater on the prosecution
team and what is the prejudice, if any, to Robinson of Prater’s
role on both the investigative team and the prosecution team?
(ix) Should these proceedings be maintained under seal?
16
NOW, THEREFORE, this 19th day of September 2017, the State shall
respond to Robinson’s Motion Counsel’s request for discovery within 5
business days of this Order and documents shall be provided to the Court for
an in camera review consistent with this Memorandum Opinion within 10
business days of this Order. Thereafter, a hearing shall take place.
IT IS SO ORDERED.
Andrea L. Rocanelli
____________________________________
The Honorable Andrea L. Rocanelli
17