      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
