      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE                     )
                                      )
      v.                              )     I.D. No. 1411017691
                                      )
JACQUEZ ROBINSON                      )

                           Submitted: February 2, 2018
                             Decided: May 1, 2018


                                    OPINION

                Upon Defendant’s Motion to Dismiss Indictment
                                GRANTED




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

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

Rocanelli, J.
      Defendant Jacquez Robinson (“Defendant”) has filed a motion to dismiss on

the grounds that the State violated his Sixth Amendment rights by conducting an

unauthorized search of Defendant’s cell that specifically targeted Defendant’s

attorney-client communications; by reviewing confidential communications

between Defendant and his counsel; by intentionally intruding on the attorney-client

relationship; and by actual disclosure of defense strategy to the prosecution.

Defendant further contends that the only adequate remedy for the constitutional

violation is dismissal of the indictment. The State responds that the search was

permissible and/or justified, and that Defendant has not established sufficient

prejudice to establish a Sixth Amendment violation or to warrant dismissal of the

indictment.

                                   INTRODUCTION

      This Court issued a Memorandum Opinion and Order, which set forth the

Court’s rulings on the standard and scope of review for consideration of Defendant’s

motion to dismiss.1 The Court conducted evidentiary hearings and an in camera

review of legal documents and attorney-client communications seized from

Defendant’s prison cell. The parties submitted post-hearing briefs. Thereafter, the

Court took Defendant’s motion to dismiss under advisement.


1
 See State v. Robinson, 2017 WL 4675760 (Del. Super. Sept. 19, 2017, revised Oct.
17, 2017). The findings and rulings in that Memorandum Opinion are incorporated
herein.
                                         1
       This is the Court’s decision on Defendant’s motion to dismiss. As fact-finder,

the Court assessed the evidence and the credibility of witness testimony.2 The Court

finds that the State intentionally seized and reviewed Defendant’s attorney-client

communications without seeking judicial approval or oversight. The State also

failed to establish a “taint team” to screen the Trial Prosecutors from the results of

its investigation, and a member of the prosecution team3 learned details of

Defendant’s defense strategy. The Court concludes that the State’s conduct violated

Defendant’s Sixth Amendment right to the assistance of counsel and that the State’s

conduct falls short of the Court’s expectations for Delaware prosecutors.

       Based on the Court’s findings of fact, application of the legal standard, and in

consideration of the State’s disregard for procedural due process and the rule of law,

this Court concludes that dismissal of the Indictment is necessary to remedy the

State’s intentional violation of Defendant’s Sixth Amendment rights. While the

Court is mindful that dismissal is an extreme remedy, no other remedy will

adequately and effectively address the Sixth Amendment violation for this defendant

or deter the State from violating the Sixth Amendment rights of criminal defendants

in the future.



2
 Dionisi v. DeCampli, 1995 WL 398536, *1 (Del. Ch. June 28, 1995).
3
 The Prosecution Team for Defendant’s Murder Case consisted of two Deputies
Attorney General (“Trial Prosecutors”) and a paralegal (“Prosecution Team
Paralegal”).
                                     2
                                     DISCUSSION

I.    THE STATE’S SEIZURE, REVIEW AND RETENTION OF
      DEFENDANT’S LEGAL MATERIALS

      A.    Unauthorized Seizure, Review, and Retention of Defendant’s Legal
            Materials

      On June 30, 2017, eleven days before the scheduled July 11 trial in

Defendant’s Murder Case,4 the State seized all documents and notes from

Defendant’s prison cell for its review.     A senior prosecutor at the Delaware

Department of Justice authorized the seizure and review (“Senior Prosecutor”).5

According to the State, the search and seizure was necessary to ascertain whether

Defendant’s counsel (“Defense Counsel”)6 had violated a protective order by

revealing the names of the State’s witnesses to Defendant. However, the State

concedes that it never provided any witness names to Defense Counsel.

      The State did not apply for a search warrant in any court. The State did not

provide notice in advance to Defense Counsel or to the judges assigned to the TMG

Case or the Murder Case. Even after the search and seizure took place, the State did




4
  Defendant has multiple indictments pending in this Court, which were explained
in detail in the Court’s previous Opinion and Order. See Robinson, 2017 WL
4675760, at *1.
5
  Senior Prosecutor is not a member of the Prosecution Team for any of Defendant’s
pending cases.
6
  Defense Counsel represents Defendant in both of his pending cases, the TMG Case
and the Murder Case.
                                         3
not disclose the search, seizure, and review of documents to the Court or to Defense

Counsel.

      Several days later, on July 5, 2017, Defendant informed Defense Counsel that

Defendant’s legal papers had been removed from his cell by Department of

Correction (“DOC”) officials. Defense Counsel first notified the Court by e-mail on

July 5, and then sent a formal letter to the Court on July 6. Defense Counsel did not

know that the Department of Justice (“DOJ”) had directed the DOC to conduct the

search and seizure. Defense Counsel asked the Court to enter an Order directing that

all of Defendant’s legal documents be returned immediately and that copies not be

made or retained. The Court asked for a response from the State by noon on July 7,

2017. A formal response was filed on behalf of DOC.7 It was only after the Court

intervened that the State made arrangements to return Defendant’s legal materials to

him, which were returned before the end of the day on July 7.8




7
  In a letter dated July 7, 2017 to Hon. John A. Parkins, the DOC notified the Court
that “[a]t the request of Department of Justice investigators, the DOC did conduct a
search of Robinson’s cell on June 30, 2017, and did remove materials from his cell,
including legal materials.” Mot. to Dismiss Ex. F. (July 7, 2017).
8
   After a detailed review of the documents seized from Defendant’s cell, the
Prosecution Team Paralegal suggested that the documents should be returned to
Defendant. On July 1, 2017, the day after the seizure and review, Prosecution Team
Paralegal wrote an email stating that “since [Defendant] was allowed to have all of
the seized documents, we should probably arrange for them to be returned.” Senior
Prosecutor responded to this email, saying “Makes sense.” J. Ex. 8 at 17. The
documents were returned to Defendant on July 7, 2017.
                                           4
        B.     The TMG Protective Order

        In criminal cases, the State is not required to produce a witness’s statement to

defense counsel until after the witness testifies at trial on direct examination.9 In

addition, the Delaware Victims’ Bill of Rights prohibits the disclosure of a victim’s

or witness’s identifying information.10 However, in the interest of convenience and

judicial economy, the State ordinarily provides witness statements to defense

counsel before trial. To do so, the State typically utilizes a protective order that

prohibits defense counsel from sharing a witness’s statement or identifying

information with anyone else, including the defendant.

        There are two protective orders that address Defendant’s pending cases. 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. That trial was postponed

and the TMG Protective Order remains in effect. 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, five days prior to the trial

scheduled for July 11, 2017.

        The TMG Protective Order prohibited Defense Counsel from giving

Defendant access to any documents containing summaries and transcripts of witness



9
    See Super Ct. Crim. R. 26.2(a).
10
     See 11 Del. C. § 9403.
                                            5
interviews or which contained certain identifying information for witnesses.

However, the TMG Protective Order permitted Defense Counsel to discuss the

“content” of any such documents with Defendant.11 During the drafting process for

the TMG Protective Order, Defense Counsel sought clarification from the State on

her duties thereunder. Specifically, Defense Counsel asked if the State considered

it a violation if she were to summarize the protected documents, leaving out any

witness identifying information, and to provide those summaries to Defendant. The

State responded that the provision in the TMG Protective Order allowing counsel to

discuss “content” permitted Defense Counsel “to discuss/provide summaries of the

materials under the [protective order].”12 Following this clarification, Defense

Counsel wrote to the State to memorialize their discussion and said, “The State takes

the position that there is no violation of the protective order by me sending

summaries of reports and transcripts of statements of witnesses to my client so long

as no identifying information is provided in the summaries. If this is not accurate,

please let me know.”13 The State never responded.

      Pursuant to the TMG Protective Order, the State produced various discovery

materials to Defense Counsel. However, other than one witness identified by name,




11
   See J. Ex. 1 at A109-10.
12
   J. Ex. 1 at A133.
13
   J. Ex. 1 at A135.
                                         6
the State never provided the names of any witnesses to Defense Counsel.14 Rather,

the State identified the witnesses using letter designations and redacted the

transcripts to remove any identifying information.

      In March 2017, a jury trial took place for one of Defendant’s co-defendants in

the TMG Case. At that trial, the State identified witnesses by name in its opening

statement. In addition, witnesses testified and were subject to cross examination on

the record in open court.

      In the beginning of May 2017, an inmate (“Informant Inmate”) housed with

Defendant at Sussex Correctional Institution (“SCI”) wrote to the State claiming to

have information relating to the Murder Case. The Lead Trial Prosecutor for the

Prosecution Team interviewed the Informant Inmate on May 10, 2017. During that

interview, the Informant Inmate identified Defense Counsel by her first name and

suggested that she may have shown Defendant documents that were subject to a

protective order.15   The Informant Inmate also told the Trial Prosecutor that

Defendant attempted to use another inmate’s (“Intermediate Inmate”) pin number to



14
   See, e.g., J. Ex. at A125-29; A130-32. The name of only one witness was
identified in the discovery materials subject to the State’s Brady obligations because
the witness provided exculpatory evidence.
15
   See App. to Post-Hearing Br. at A58 (“Nah, he showed me that one paper he tried
to get a … some, I guess you got like a protective order on some statements or
something where you not supposed to get or something, but [Defense Counsel] came
and seen them. … [Defense Counsel] bought [sic] him this paper and said this is a
test of our relationship. If this get’s [sic] out it’s on you. …”).
                                             7
call Defense Counsel regarding the protected documents. The Informant Inmate

stated that a paralegal for Defense Counsel told Defendant that he could not have

copies of the documents because they were protected by a protective order. 16 The

Informant Inmate claimed that these events took place sometime in April 2017. The

only protective order in place at the time of these events was the TMG Protective

Order.

      The Trial Prosecutors claim that they were concerned at this time that Defense

Counsel may have violated the TMG Protective Order.17 Rather than raising the

concerns at this time with the Court or with Senior Prosecutor, the Trial Prosecutors

initiated further investigation (“Protective Order Investigation”). On May 16, 2017,

a Trial Prosecutor interviewed the Intermediate Inmate, who denied allowing anyone

to use his pin number to make outgoing phone calls.

      The Trial Prosecutors waited several more weeks after the interview with the

Intermediate Inmate to take any additional steps in connection with its Protective

Order Investigation. In June 2017, the Trial Prosecutors issued three subpoenas



16
   Id. at A59 (“So he didn’t talk to [Defense Counsel], he talked like to a paralegal
… she said I talked to [Defense Counsel] about the paperwork, it’s a protective order
like she explained to you at the hearing and we can’t give it to you, yada, yada.”).
17
   Initially, the State represented that the Trial Prosecutors were concerned that both
protective orders had been violated. However, the Murder Protective Order had not
been issued at the time of the events about which the State claimed to be concerned.
Eventually, the State conceded that the Trial Prosecutors’ concerns related
exclusively to the TMG Protective Order.
                                             8
relating to their Protective Order Investigation. The first subpoena was issued on

June 9, 2017 for Defendant’s telephone records from the period of May 25, 2017 to

the June 9, 2017.18 The second subpoena was issued on June 14, 2017 for the

Intermediate Inmate’s telephone records for the period of January 1, 2017 to June

14, 2017.19 The third subpoena was issued on June 20, 2017 for Defendant’s

telephone records to cover the period of April 1, 2017 through May 24, 2017.20 All

three subpoenas sought “any and all available approved phone number lists,

outgoing call log entries and conversations” for the respective time period. 21 The

State has produced no other subpoenas relating to the Protective Order Investigation.

       Sometime before June 28, 2017, the DOC provided the State with Defendant’s

phone calls in response to the Trial Prosecutors’ subpoenas. The recordings were

given to a State Investigator who listened to them to determine if Defense Counsel

had possibly violated the TMG Protective Order. On June 28, 2017, the State

Investigator provided the Trial Prosecutors with transcripts of phone calls Defendant

made in April 2017 in which Defendant discusses a meeting with Defense Counsel.

The Trial Prosecutors still did not involve a “taint team,” deciding instead to evaluate

the substance of the phone calls themselves. During the phone calls, Defendant



18
   J. Ex. 8 at 1.
19
   Id. at 2.
20
   Id. at 3.
21
   Id. at 1-3.
                                           9
states that Defense Counsel discussed his case and showed him some documents.

Defendant also states that he knows people who may be witnesses against him.

However, Defendant does not identify any witnesses by name or state that Defense

Counsel provided him with witness names.

         On the same day, the Trial Prosecutors also received the Intermediate Inmate’s

call log. The log indicated that someone using that pin number called Defense

Counsel’s office three times in April 2017.

         On June 28, 2017, the Trial Prosecutors brought their concerns that a

protective order may have been violated to the Senior Prosecutor. The Trial

Prosecutors did not disclose Defense Counsel’s previous clarifications regarding the

parameters of the TMG Protective Order to the Senior Prosecutor.22 On that same

day that the Trial Prosecutors addressed their concerns with the Senior Prosecutor,

the Senior Prosecutor assigned the State’s Chief Investigator (“Chief Investigator”)

to work with DOC to search Defendant’s cell. The State did not apply for a search

warrant or otherwise seek judicial approval. In addition, the State did not create a

“taint team” to screen the members of the Prosecution Team from its continuing

investigation.




22
     See J. Ex. 1 at A135.
                                           10
      C.     Defendant’s Attorney-Client Communications and Legal Materials
             Were the Subject of Search and Seizure

      In preparation for the review of documents seized from Defendant’s prison

cell, the Senior Prosecutor and the Lead Trial Prosecutor met with the Chief

Investigator on June 28 or 29, 2017 to give the Chief Investigator instructions on

what to look for in Defendant’s cell. At that time, the Senior Prosecutor and the

Lead Trial Prosecutor knew that only one witness name had been provided under the

TMG Protective Order. They instructed the Chief Investigator to look for anything

indicating that Defense Counsel showed Defendant protected documents in violation

of the TMG Protective Order. The Senior Prosecutor did not limit the search to

documents identifying witnesses, exclude attorney-client communications from the

search parameters, or provide instructions on what would constitute protected

attorney-client communications. The Chief Investigator understood that he was

looking for attorney-client communications.

      Prior to the search, the Chief Investigator recruited another State Investigator

to assist with the search (“Assisting Investigator”). The Chief Investigator instructed

the Assisting Investigator that they were conducting an investigation involving

Defense Counsel, and that they were looking for written communications from the

office of Defense Counsel to Defendant.23 The Chief Investigator did not mention


23
  State v. Robinson, ID No. 1411017691, at 13 (Del. Super. Nov. 21, 2017)
(TRANSCRIPT).
                                   11
to the Assisting Investigator that the search involved concerns about violation of a

protective order.24

      On June 30, 2017, the Chief Investigator directed DOC officials to seize all

paper and documents from Defendant’s prison cell. The Chief Investigator and the

Assisting Investigator reviewed every piece of paper from Defendant’s cell. During

the initial review, the Assisting Investigator considered any and all communications

from an attorney’s office to be pertinent based on the Chief Investigator’s

instructions.25 He provided such communications to the Chief Investigator for the

final decision on which documents to seize from SCI for further review. The Chief

Investigator seized twelve manila envelopes and five letter-sized envelopes that all

bore Defense Counsel’s letterhead, as well as a larger envelope that contained a

federal transcript and pages of Defendant’s handwritten notes, and brought them

back to the DOJ in Wilmington for further review.26

      Rather than having a review conducted by persons who were not part of the

Prosecution Team, i.e. a “taint team,” the Senior Prosecutor chose to place the

documents in a large conference room for review by the Prosecution Team Paralegal.

The Prosecution Team Paralegal reviewed the documents, which included letters



24
   Id. at 21.
25
   Id. at 29.
26
   See J. Ex. 3 at 1; State v. Robinson, ID No. 1411017691, at 187, 217-220 (Del.
Super. Oct. 25, 2017) (TRANSCRIPT).
                                          12
from Defense Counsel to Defendant and Defendant’s handwritten notes on a legal

pad and loose pieces of paper. The Prosecution Team Paralegal’s review was

detailed enough to conclude that Defense Counsel discussed the substance of

redacted police reports with Defendant, and the Prosecution Team Paralegal reported

her conclusions to the Senior Prosecutor.27 At the end of her review, the Prosecution

Team Paralegal concluded that Defendant was not in possession of any documents

that were in violation of a protective order.28

      D.     Members of the Prosecution Team Had Roles in the Seizure and
             Review of Defendant’s Legal Materials

      Members of the Prosecution Team were involved in the seizure and review of

legal materials removed from Defendant’s prison cell.         First, the Lead Trial

Prosecutor actively participated in the meeting wherein the Chief Investigator was

instructed to seize documents from Defendant’s cell.29 Second, the Prosecution

Team Paralegal conducted a substantive review of the documents seized from

Defendant’s cell even though the Prosecution Team Paralegal had a substantial and

continuing role as a member of the Prosecution Team.



27
   See J. Ex. 5 (“However, there was one copy of a two page redacted FBI report in
[Defendant’s] possession as well as several pages of hand written notes detailing
specific facts, witness statements, and other evidence all of which could have only
been obtained via the police reports.”).
28
   Id.
29
   State v. Robinson, ID No. 1411017691, at 84-85 (Del. Super. Oct. 25, 2017)
(TRANSCRIPT).
                                         13
      Specifically, according to the State, the Prosecution Team Paralegal assists

the prosecutors at the DOJ in ways that extend beyond her paralegal capacity. 30 The

Prosecution Team Paralegal was responsible for organizing the voluminous

discovery in Defendant’s cases, maintaining records of discovery, and assisting in

scheduling of witness interviews.31 In addition, the Prosecution Team Paralegal was

included on emails with the other members of the Prosecution Team and sat in on

meetings with the Trial Prosecutors discussing the State’s strategy for trial.32 Indeed,

the Senior Prosecutor testified that he chose the Prosecution Team Paralegal for the

review because her role on the prosecution team meant that she knew the case and

the discovery materials best.33 With trial scheduled to begin on July 11, 2017, the

Prosecution Team Paralegal was still involved in the final trial preparations, and was

copied on various emails with the Trial Prosecutors regarding the witnesses and

evidence for trial.34 The Prosecution Team Paralegal was not officially removed

from the Prosecution Team until July 14, 2017,35 after the Court continued the July

11 scheduled trial.




30
   Id. at 233.
31
   Id. at 160-61.
32
   Id. at 259-260.
33
   Id. at 116.
34
   See J. Ex. 1 at A170-72, A173-76, A177, A178-79, A180; see also J. Ex. 7.
35
   See J. Ex. 8 at 4.
                                       14
II.      THE STATE’S SEIZURE AND REVIEW OF DEFENDANT’S
         ATTORNEY-CLIENT COMMUNICATIONS AND DEFENSE
         STRATEGY WAS NOT PROPER AND COULD NOT BE LEGALLY
         JUSTIFIED.

         The State argues that it was legally justified to conduct an independent and

unauthorized search, seizure, and review of Defendant’s 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. However, the State’s conduct in this case implicates Defendant’s Sixth

Amendment rights, not his Fourth Amendment rights. The State should have sought

judicial approval.

         A.    The State’s Fourth Amendment Argument is Misplaced Because the
               State’s Actions Actually Implicate Defendant’s Sixth Amendment
               Rights.

         The State argues that it did not need a warrant to search Defendant’s cell

because the State does not need a warrant to search an inmate’s prison cell. The

State relies in part on an earlier opinion issued in this case where Defendant sought

to suppress a drawing seized from his cell on Fourth Amendment grounds, and the

Court ruled that Defendant has no reasonable expectation of privacy in his prison

cell.36 The State fails to appreciate the substantial differences between Fourth and




36
     State v. Robinson, 2017 WL 1363895, at *1 (Del. Super. Ct. Apr. 11, 2017).
                                        15
Sixth Amendment jurisprudence and the difference between a drawing and

privileged attorney-client communications.

      Prisoners do not have a reasonable expectation of privacy in their cells.37

However, the State’s reliance on Fourth Amendment jurisprudence for its search of

Defendant’s cell targeting attorney-client communications is misplaced. While

some constitutional protections, such as those arising under the Fourth Amendment,

are limited for inmates, “prisons are not beyond the reach of the Constitution.”38 The

United States Supreme Court has held that prisoners must be “accorded those rights

not fundamentally inconsistent with imprisonment itself or incompatible with the

objectives of incarceration.”39 To that end, prisoners are consistently afforded their

Sixth Amendment right to the assistance of counsel while incarcerated.40 For

example, prison officials are prohibited from listening to attorney-client meetings in

the prison, recording attorney-client phone calls, or reading attorney-client

correspondence.41


37
    See Hudson v. Palmer, 468 U.S. 517, 536 (1984) (“We hold that the Fourth
Amendment has no applicability to a prison cell.”).
38
   Id. at 523.
39
   Id.
40
   See, e.g., Jackson v. State, 643 A.2d 1360, 1376 (Del. 1994) (holding that the State
violated a defendant’s Sixth Amendment right to counsel when its agent, the
defendant’s former cellmate, deliberately elicited incriminating statements from the
defendant while he was incarcerated without a lawyer present).
41
   See, e.g., Wolff v. McDonnell, 418 U.S. 539, 577 (1974) (holding that prison
authorities may open, but not read, attorney-client correspondence because reading
such correspondence could cause a chilling effect on the communications between
                                           16
      The State concedes that DOC does not record phone calls by inmates with

their lawyers, that the State does not read attorney-client correspondence, and that

the State provides a confidential setting for attorney-client conferences when the

client is incarcerated because those communications are privileged and protected

under an inmate’s Sixth Amendment rights.            Nevertheless, when searching

Defendant’s cell, the State seized and reviewed Defendant’s privileged and

confidential attorney-client communications and documents containing defense

strategy. The State’s search implicated the Sixth Amendment, not the Fourth

Amendment, and the State’s argument based on Fourth Amendment jurisprudence

that it did not need judicial authority must fail.

      B.     The State Cannot Review Attorney-Client Communications Without
             Judicial Approval or Oversight.

      Attorney-client communications are generally protected by the attorney-client

privilege.   The attorney-client privilege is “the oldest of the privileges for

confidential communications known to the common law.” 42 Delaware has codified

the attorney-client privilege in Delaware Rule of Evidence 502, which provides that

confidential communications between the lawyer and client are privileged from




lawyer and client); see also In the Matter of Robert Neary, 84 N.E.3d 1194 (Ind.
2017) (suspending a prosecutor for four years as sanction for listening to confidential
attorney-client communications on two occasions).
42
   Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
                                         17
disclosure.43 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.”44

The privilege applies “to all communications, whether written or oral, made for the

purpose of facilitating the rendition of professional legal services.”45 As a result, the

State could not properly seize and review Defendant’s privileged attorney-client

communications without judicial approval and oversight.

      Even the recognized exceptions to the attorney-client privilege require judicial

approval to allow the State to review otherwise privileged communications. Here,

the State attempts to rely on the crime-fraud exception to the attorney-client

privilege. The crime-fraud exception provides that the attorney-client privilege does

not apply if “the services of the lawyer were sought or obtained to enable or to aid

anyone to commit or plan to commit what the client knew or reasonably should have

known to be a crime of fraud.”46 According to the State, it was conducting an

investigation into the “suspected unlawful activity” of Defense Counsel and

Defendant.47 Specifically, the State claims that it was seeking evidence that a



43
   D.R.E. 502(b).
44
   Upjohn, 449 U.S. at 389.
45
   Matter of Sutton, 1996 WL 659002, at *4 (Del. Super. Aug. 30, 1996) (quoting
Zirn v. VLI Corp., 321 A.2d 773, 781 (Del. 1993)).
46
   D.R.E. 502(d)(1).
47
   State’s Answering Post-Hearing Br. 17.
                                       18
protective order had been violated, and such information, if found, would have fallen

under the crime-fraud exception to the attorney client privilege.48

      A violation of a protective order might qualify as a misdemeanor offense.49

Nevertheless, application of the crime-fraud exception to the attorney-client

privilege requires judicial oversight and approval. Under the Delaware Rules of

Evidence, the existence of a privilege is a matter to be determined by the Court.50

Therefore, if the State believed that attorney-client communications fell under the

crime-fraud exception, the State should have sought an order from the Court for

access to those communications.51 At that time, the State would have needed to

make a prima facie case that “the lawyer’s advice was designed to serve his client in

commission of a fraud or crime” to justify excepting the communications from the

attorney-client privilege.52 The State could not merely decide that the crime-fraud

exception might apply and review Defendant’s attorney-client communications

based on its suspicion. Rather, the State was required to seek judicial approval.



48
   The Court notes that the State’s argument regarding the crime-fraud exception
contradicts its contention that it was not intentionally seeking attorney-client
communications during its search of the cell.
49
   11 Del. C. § 1271(3) (providing that a person is guilty of criminal contempt, a
Class A misdemeanor, when the person engages in “intentional disobedience or
resistance to the process, injunction, or other mandate of a court”).
50
   D.R.E. 104(a).
51
   See, e.g., Matter of Sutton, 1996 WL 659002 at *1; Playtex, Inc. v. Columbia Cas.,
1992 WL 179232, at *1 (Del. Super. July 10, 1992).
52
   Matter of Sutton, 1196 WL 659002, at *10 (internal citation omitted).
                                           19
      Moreover, the Court notes that even if the State had sought judicial approval,

it would have been denied.       By the State’s own admission, it did not have

“substantiated” concerns that a protective order was violated.53 The Court’s inquiry

would have revealed that there was no basis to intrude on the attorney-client

privilege because no witness names had been produced by the State, Defense

Counsel had permission to share the “content” of witness statements with her client,

and the record evidence would have demonstrated that Defense Counsel had

steadfastly refused to provide information to her client that would have violated the

TMG Protective Order.54 As a result, the State would not have been able to make

the necessary prima facie case to justify excepting Defendant’s attorney-client

communications from the attorney-client privilege.

      C.     The State Could Have Applied for a Search Warrant.

      The Court is mindful of the fact that search warrants are not usually necessary

for searches of prison cells. However, because the search specifically targeted



53
   The State contends that it was “premature” to contact the Court before its
independent search and seizure because it did not yet have “substantiated” concerns.
State v. Robinson, ID No. 1411017691, at 129-30 (Del. Super. Oct. 25, 2017)
(TRANSCRIPT).
54
   On April 24, 2017, a clerk in Defense Counsel’s office wrote to Defendant
regarding a request he made via telephone to be sent witness statements and police
interviews relating to the TMG Case. The letter states, “As [Defense Counsel]
explained to you during your visit with her, we are unable to provide you with those
materials because of the protective order that has been issued by the judge.” See J.
Ex. 1 at A136.
                                         20
Defendant’s attorney-client communications, the State should have applied for a

search warrant. The State has previously obtained search warrants for prison cells

in the past under similar circumstances.55

      A search warrant may be issued only upon a showing of probable cause.56 To

obtain a search warrant, the State must set forth an affidavit in support which sets

forth facts “adequate for a judicial officer to form a reasonable belief that an offense

has been committed and the property to be seized will be found in a particular

place.”57 A judge may find probable cause when “there is a fair probability that

contraband or evidence of a crime will be found in a particular place.”58

      The Court notes that the State would not have been able to meet the threshold

standard for a warrant to issue in this case. As discussed above, the State did not

have probable cause that attorney-client communications contained witness names

that had been provided by the State because only one witness name had ever been

provided.59   Indeed, the State concedes that it did not have “substantiated”



55
   See, e.g., State v. Cannon, ID. No. 1001007728, at 4 (Del. Super. Jan. 3, 2011)
(TRANSCRIPT).
56
   Fink v. State, 817 A.2d 781, 786 (Del. 2003); U.S. Const. Amend. VI; Del. Const.
art. 1, § 6.
57
   Sisson v. State, 903 A.2d 288, 296 (Del. 2006) (citing Fink, 817 A.2d at 787).
58
   Id. (quoting Stones v. State, 676 A.2d 907 (Del. 1996)).
59
   The State identified its witnesses for the TMG Case using letter designations in
the discovery materials provided to Defense Counsel. The State identified one
witness by name, because that witness provided exculpatory information subject to
the State’s Brady obligations.
                                          21
concerns,60 which is a lower standard than probable cause. The State would not have

been able to establish probable cause that evidence of a crime would be found in

Defendant’s prison cell, because the State could not have established that Defense

Counsel provided Defendant with witness names that had been provided to her by

the State subject to the TMG Protective Order.

      The State appears to argue that protective orders should shut down all

meaningful trial preparation by defendants. For example, the State contends that

even though Defense Counsel knew only one witness name, the State was concerned

about the content of attorney-client communications because Defendant may have

been able to deduce the identities of witnesses through the substance of the witness

statements provided to Defense Counsel.61           However, Defense Counsel was

explicitly allowed to discuss the “content” of witness statements with Defendant.62

To the extent that the State concerns arose solely from attorney-client



60
   State v. Robinson, ID No. 1411017691, at 129-30 (Del. Super. Oct. 25, 2017)
(TRANSCRIPT).
61
   State v. Robinson, ID No. 1411017691, at 80-81 (Del. Super. Oct. 25, 2017)
(TRANSCRIPT) (“…there could be something in a transcript which is identifying
either a location or when they heard something. Even if the name is redacted out,
something can be in that transcript that someone with certain knowledge could
identify who that person is.”); see also id. at 91-93 (“If someone says in a statement,
‘Well, I was up on the hill that night,’ that is a specific location in Wilmington, that
might trigger, Well, I know who that is, then, just from some kind of an innocuous
identifying remark that has no personal identifiers, that we would not redact out, but
that might be – give a key to a defendant as to who someone is.”).
62
   See J. Ex. 1 at A110.
                                           22
communications about the “content” of witness statements, the State could not have

established probable cause that Defense Counsel was in violation of the TMG

Protective Order.

         Moreover, in applying for a search warrant, the State would have been duty-

bound to reveal to the Court that the State possessed information contradicting its

claim that Defense Counsel showed Defendant documents in violation of the TMG

Protective Order. For example, the Informant Inmate told the Lead Trial Prosecutor

that Defendant attempted to obtain copies of witness statements and transcripts, and

that Defense Counsel refused, explaining to Defendant that those documents were

protected by the TMG Protective Order.63 In addition, Defense Counsel previously

clarified her duties under the TMG Protective Order and specifically sought and

obtained permission to provide summaries of witness statements to Defendant.64

Accordingly, the State would have been unable to establish probable cause that

Defense Counsel violated a protective order.

         Finally, the State’s stated concerns about witness safety are not supported by

the record. First, the State was solely seeking evidence that Defense Counsel

violated a protective order, not that Defendant engaged in any witness intimidation.

Second, the State’s own actions undermine its assertion that witness safety



63
     See App. to Post-Hearing Br. at A59.
64
     See J. Ex. 1 at A135.
                                            23
demanded immediate action.       The Informant Inmate claimed to be relaying

information from April of 2017. The State interviewed the Informant Inmate on

May 10, 2017 and the Intermediate Inmate on May 16, 2017. Nevertheless, the

record evidence suggests that the State did not take any further action in this

investigation until June 9, 2017 when it issued the first subpoena for Defendant’s

phone records. Two more weeks elapsed before the State issued the additional

subpoenas.65 The State did not demonstrate any urgency with its investigation until

the Senior Prosecutor unilaterally decided to search Defendant’s cell on the same

day that the Trial Prosecutors brought their concerns to him.

       Moreover, although the State did not listen to the phone calls until June 28,

2017, the State had been informed that Defendant made the phone calls at issue in

April 2017. Therefore, when the State made the decision to search Defendant’s cell

on June 28 or 29, 2017, two months had already passed since Defendant made the

allegedly concerning statements. The State has not presented any evidence that

witness intimidation actually took place during those two months, which undermines

the State’s claims that it had a legitimate concern about imminent witness

intimidation by Defendant that necessitated an immediate and unauthorized search

and seizure of attorney-client communications.



65
  The State issued a subpoena for the Intermediate Inmate’s phone records on June
14, 2017 and a second subpoena for Defendant’s phone records on June 20, 2017.
                                        24
      In conclusion, the State needed to seek judicial approval to seize and review

Defendant’s privileged attorney-client communications. The State could have and

should have applied for a search warrant to satisfy that obligation.

      D.     The State’s Protective Order Investigation Should Have Proceeded
             with a “Taint Team.”

      Even if the State had sought and received judicial approval for its seizure and

review, its entire Protective Order Investigation should have been handled by a “taint

team.” A “taint team” is entirely separate and independent of the prosecution team

for a particular case, and can review privileged materials “to preserve the integrity

of the attorney-client privilege.”66 An effective “taint team” would act as a wall or

screen between itself and the prosecution team to ensure that no privileged

communications or defense work product would be inadvertently disclosed to the

prosecution team.67

      Here, the State took no steps to screen the Prosecution Team to protect the

integrity of the attorney-client privilege. Instead, the Prosecution Team was directly

involved in the entire investigation. The Trial Prosecutors conducted interviews,

issued subpoenas, listened to phone calls, and reviewed call logs. The Lead Trial

Prosecutor met directly with the Chief Investigator to direct him on what to look for


66
   See, e.g., State v. Cannon, ID. No. 1001007728, at 7 (Del. Super. Jan. 3, 2011)
(TRANSCRIPT) (citing United States v. Hoffecker, 530 F.3d 137, 153 (3d Cir.
2008)).
67
   Id.
                                         25
in Defendant’s cell. The Prosecution Team Paralegal directly reviewed Defendant’s

attorney-client communications and learned details of his defense strategy. The

Prosecution Team Paralegal then continued working with the Trial Prosecutors on

Defendant’s cases. In addition, the Lead Trial Prosecutor facilitated the return of

Defendant’s documents, which were still in the State’s possession a week after the

seizure and review. Thus, even if the State had sought judicial approval, its search

and review of Defendant’s legal materials would still have been defective in light of

the Prosecution Team’s involvement and the State’s failure to engage a “taint team.”

III.   THE STATE’S VIOLATION OF DEFENDANT’S SIXTH
       AMENDMENT RIGHTS REQUIRES DISMISSAL OF THE
       INDICTMENT.
       As will be discussed, this Court finds that the State’s actions violated

Defendant’s Sixth Amendment rights. In addition, the Court finds that the State’s

conduct falls short of the Court’s expectations for Delaware prosecutors. Dismissal

is the only remedy that can adequately address the substantial prejudice suffered by

Defendant and ensure that the State will not violate the rights of criminal defendants

in the future.

       A.        The State Violated Defendant’s Sixth Amendment Rights.

       An accused’s Sixth Amendment right to the assistance of counsel for his or

her defense is “fundamental to our system of justice” and “is meant to assure fairness




                                          26
in the adversary criminal process.”68 The underlying purpose of the right to the

assistance of counsel is to allow a defendant to make informed choices about his

defense.69 To that end, “Free two-way communication between client and attorney

is essential if the professional assistance guaranteed by the [S]ixth [A]mendment is

to be meaningful.”70

      This Court previously addressed the legal standards applicable to finding a

Sixth Amendment violation in its September 19, 2017 opinion and order.71        The

general rule under Weatherford v. Bursey is that a defendant must show prejudice to

establish a Sixth Amendment violation.72 Within the Weatherford framework,

prejudice may be presumed if defense strategy was actually disclosed to the

Prosecution Team.73 In addition, a deliberate interference with the attorney-client

relationship can constitute a Sixth Amendment violation even without a showing of

prejudice.74


68
   U.S. v. Morrison, 449 U.S. 361, 364 (1981) (citing Gideon v. Wainwright, 372
U.S. 335, 344 (1963)); see also Bailey v. State, 521 A.2d 1069, 1083 (Del. 1987).
69
   See U.S. v. Levy, 577 F.2d 200, 209 (3d Cir. 1978).
70
   Id.
71
   See State v. Robinson, 2017 WL 4675760 (Del. Super. Sept. 19, 2017, revised Oct.
17, 2017).
72
   429 U.S. 545, 558 (1977).
73
   United States v. Levy, 577 F.2d 200, 209-10 (3d Cir. 1978).
74
   See U.S. v. Morrison, 602 F.2d 529, 532 (3d. Cir. 1979), rev’d on other grounds,
449 U.S. 361 (1981); Weatherford, 429 U.S. at 558 (finding that there was no Sixth
Amendment violation in part because there was no “purposeful intrusion” by the
undercover agent); see also State v. Cannon, ID. No. 1001007728, at 10 (Del. Super.
Jan. 3, 2011) (TRANSCRIPT) (finding that a Sixth Amendment violation occurred
                                         27
              1.    Defendant Has Established a Sixth Amendment Violation Under
                    the Weatherford Framework.

      The Court finds that the State violated Defendant’s Sixth Amendment right to

the assistance of counsel when analyzing the State’s conduct under the Weatherford

framework. Not only is prejudice presumed because defense strategy was actually

disclosed to a member of the Prosecution Team, but Defendant has also established

substantial prejudice as a result of the State’s actions.

      The Court conducted an in camera review of the documents seized from

Defendant’s cell, including attorney-client communications and Defendant’s hand-

written notes.75 Based on its review, the Court concluded that the documents

contained details of defense strategy.       The Court informed the parties of its

conclusion at the hearing on November 21, 2017.76           To prevent any further

disclosure, the parties agreed that the Court should not disclose any specifics about

the defense strategy contained in the documents, choosing instead to make argument

based solely on the Court’s conclusion that the documents contained defense

strategy.77



after the State accidentally seized a defendant’s notebook containing privileged
materials).
75
   A defendant’s notes made in connecting with the investigation or defense of his
case are protected from disclosure under Superior Court Criminal Rule 16(b)(2).
76
    State v. Robinson, ID No. 1411017691, at 54 (Del. Super. Nov. 21, 2017)
(TRANSCRIPT).
77
   Id. at 70-76.
                                        28
      Prejudice is presumed because defense strategy was actually disclosed to the

Prosecution Team. Where a member of the Prosecution Team conducted a detailed

review of Defendant’s attorney-client communications and hand-written notes, and

thereby became privy to details of Defendant’s defense strategy, the Court will

presume that Defendant suffered prejudice sufficient to establish a Sixth

Amendment violation.

      Moreover, Defendant suffered actual prejudice. Even after the Prosecution

Team Paralegal reviewed Defendant’s attorney-client communications and learned

details of defense strategy, the Prosecution Team Paralegal continued to work with

the Trial Prosecutors to prepare for trial.78 The State did not create a separate “taint

team” or effectively screen the Trial Prosecutors to prevent further disclosure of

Defendant’s defense strategy and did not even remove Prosecution Team Paralegal

until July 14, 2017, after the trial had already been continued.79 Furthermore, the

Trial Prosecutors were not effectively screened from the State’s Protective Order

Investigation.80 For example, the Lead Trial Prosecutor directly met with the Senior



78
   See J. Ex. 1 at A170-72, A173-76, A177, A178-79, A180; see also J. Ex. 7.
79
   Prosecution Team Paralegal worked on the Murder case until being removed after
the trial had already been continued See J. Ex. 8 at 4.
80
   The State’s representations that the Trial Prosecutors were “screened” from the
State’s investigation after bringing their concerns to Senior Prosecutor is not
supported by the record evidence. See, e.g., State’s Answering Post-Hearing Br. 17
8-9 (providing that the Trial Prosecutors were sequestered from the investigation and
“sealed off” from any discussions about the investigation).
                                          29
Prosecutor and the Chief Investigator before the search to tell the Chief Investigator

what to search for in the cell. In addition, the Trial Prosecutors interviewed the

Intermediate Inmate for the second time on June 30, 2017, the same day as the

search, seizure, and review.81 Moreover, the Trial Prosecutors were responsible for

responding to the Court’s initial inquiries about the search of Defendant’s cell, and

facilitated the return of Defendant’s documents to him.

      Therefore, prejudice is established under the Weatherford framework.

Prejudice is presumed as a result of actual disclosure of defense strategy to the

prosecution. Even if the Court did not presume prejudice, Defendant has

demonstrated that the State’s actions caused him to suffer substantial prejudice

sufficient to establish a Sixth Amendment violation.

             2.    The State Deliberately Interfered with Defendant’s Sixth
                   Amendment Right to the Assistance of Counsel.

      The Court finds that the State’s conduct demonstrates a deliberate interference

with Defendant’s Sixth Amendment rights.          The State argues that it did not

deliberately interfere with the attorney-client relationship because it did not

specifically search for Defendant’s privileged attorney-client communications or

review such communications for the purpose of learning Defendant’s defense


81
  The State claims that the Trial Prosecutors’ second interview of the Intermediate
Inmate was unrelated to the State’s investigation into the possible violation of a
protective order, but rather was part of the Trial Prosecutors’ preparation for
Defendant’s trial.
                                        30
strategy. Rather, the State contends that it had a justifiable reason for reviewing

Defendant’s attorney-client communications. The State’s arguments are without

merit.

         The State specifically targeted Defendant’s attorney-client communications

during the search. Although the Senior Prosecutor claims that he did not instruct the

Chief Investigator specifically to search for Defendant’s attorney-client

communications, the Senior Prosecutor admits that he did not exclude such

communications from the search parameters or instruct the Chief Investigator on

what would constitute privileged attorney-client communications.82 In addition, the

Chief Investigator specifically instructed the Assisting Investigator that they were

conducting an investigation into Defense Counsel and that they were looking for

Defense Counsel’s correspondence to Defendant.83

         Consistent with those instructions, the Assisting Investigator flagged all

attorney-client correspondence as pertinent during the search for review by the Chief

Investigator.84    Moreover, the smaller subset of documents that the Chief

Investigator chose to bring back to the DOJ for further review predominantly

consisted of attorney-client communications, and the Senior Prosecutor specifically


82
   State v. Robinson, ID No. 1411017691, at 132, 138 (Del. Super. Oct. 25, 2017)
(TRANSCRIPT).
83
    State v. Robinson, ID No. 1411017691, at 13 (Del. Super. Nov. 21, 2017)
(TRANSCRIPT).
84
   Id. at 29.
                                      31
instructed the Prosecution Team Paralegal to review those documents.85 Therefore,

this Court concludes that the State specifically targeted Defendant’s attorney-client

communications in its search, seizure, and review.

      The State asserts that even though it intentionally reviewed Defendant’s

attorney-client communications, it did not deliberately interfere with the attorney-

client relationship because it only reviewed the communications to determine if a

protective order was violated.86 However, the State has not provided any legal

support for its contention that it may independently review a defendant’s privileged

attorney-client communications so long as it has some justifiable reason. Such a rule

would vitiate the fundamental importance of the attorney-client privilege and the

Sixth Amendment right to the assistance of counsel.

      By specifically searching for and reviewing Defendant’s privileged attorney-

client communications, the State intentionally disregarded the fundamental




85
   Special Investigator seized twelve manila envelopes and five letter envelopes that
all bore the letterhead of Defense Counsel. Special Investigator only seized one
other envelope, which contained some of Defendant’s handwritten notes, because it
contained a federal transcript. See J. Ex. 3 at 1; State v. Robinson, ID No.
1411017691, at 187, 217-220 (Del. Super. Oct. 25, 2017) (TRANSCRIPT).
86
   State’s Answering Post-Hearing Br. 16-17 (“First, the State did not purposefully
intrude upon confidential communications between [Defendant] and his attorney to
gain access to confidential defense strategy, or attempt to use manipulative tactics
or an undercover informant to intrude into his attorney-client relationship. Rather,
the State sought relevant, first-hand evidence of whether a Protective Order had been
violated.”).
                                           32
importance of free communication between Defendant and Defense Counsel,87

which could cause a chilling effect on their attorney-client communications in the

future.88 The Court finds that the State deliberately interfered with the attorney-

client relationship in violation of Defendant’s Sixth Amendment right to the

assistance of counsel.89

      B.     The State’s Conduct Falls Short of the Court’s Expectations for
             Delaware Prosecutors.

      The State’s conduct was also in direct conflict with the fundamental role and

duty of prosecutors. The duty of a prosecutor “is to seek justice, not merely

convictions.”90 According to the Delaware Supreme Court,


87
   See e.g., Upjohn, 449 U.S. at 389; Levy, 577 F.2d at 209.
88
   See, e.g., Davenport Group v. Strategic Investment, 1195 WL 523591, at *1 (Del.
Ch. Aug. 24, 1995) (stating that unnecessary interference with the attorney-client
privilege causes a chilling effect on attorney-client communications because the
truthfulness and scope of such communications decreases).
89
   As previously noted, there are some cases that suggest that even where there has
been deliberate interference with the attorney-client relationship, the defendant must
still show prejudice to establish a Sixth Amendment violation. See, e.g., United
States v. Boffa, 89 F.R.D. 523, 533 (D. Del. 1981); United States v. Voigt, 89 F.3d
1050, 1071 n.9 (3d Cir. 1996). The Court concludes that those cases misstate the
holding in Morrison, and declines to adopt their prejudice approach for deliberate
interference cases. However, even if the Court were to conclude that a defendant
must still show prejudice where there has been a deliberate interference with the
attorney-client relationship, the outcome would not change. As discussed in more
detail with respect to the Weatherford framework, the State directed a member of
the prosecution team to review Defendant’s privileged attorney-client
communications, and thereby became privy to details of Defendant’s defense
strategy. Therefore, the Court concludes that Defendant suffered prejudice as a
result of the State’s deliberate interference with his attorney-client relationship.
90
   Hughes v. State, 437 A.2d 559, 566 (Del. 1981).
                                           33
      A prosecuting attorney represents all the people, including the
      defendant who is being tried. It is his duty to see that the State’s case
      is presented with earnestness and vigor, but it is equally his duty to see
      that justice be done by giving defendant a fair and impartial trial.91

However, the State did not do justice and ensure fairness for Defendant when it

deliberately seized and reviewed his privileged attorney-client communications.

Further, the State did not demonstrate concern for Defendant’s right to a fair trial

when it remained in possession of Defendant’s legal documents until four days

before trial was scheduled to begin, despite having no evidence that Defendant, or

Defense Counsel, engaged in any wrongdoing.92

      Furthermore, the State has demonstrated a seeming indifference to the serious

constitutional issues at stake throughout these proceedings. For example, the State

allowed the Senior Prosecutor, who authorized the search, seizure, and review, to

appear as counsel for the State’s response to the motion to dismiss until specifically

instructed by the Court to involve counsel who would not be called to testify as a



91
   Id. at 566 (citing Bennett v. State, 164 A.2d 442, 446 (Del. 1960)); see also McCoy
v. State, 112 A.3d 239, 262 (Del. 2015).
92
   The Court also notes that, despite 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, [Defense Counsel] either violated the TMG Protective
Order or duped her client into believing she was providing him more than was
permitted.” State’s Answering Post-Hearing Br. 14. The Court finds that the State’s
ad hominem attacks against Defense Counsel are disrespectful and unprofessional,
falling short of the Court’s expectations for professionalism and civility for
Delaware lawyers.
                                            34
witness. In addition, the State failed to identify all persons who reviewed

Defendant’s documents when directed to do so, requiring the Court to hold a second

evidentiary hearing in this case. The State also failed to conduct a comprehensive

email search when directed to do so by the Court and, did not initially produce

various emails responsive to the Court’s inquiry. Further, a State’s witness testified

that he has previously conducted similar searches targeting a defendant’s legal

documents in other cases,93 suggesting that the State may have engaged in other

unauthorized reviews of attorney-client communications.          Finally, the State’s

persistent refusal to accept any responsibility for improper conduct in this matter

raises serious concerns that, absent a significant sanction, the State may engage in

additional abuses in the future.

      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 Defendant’s constitutional rights, and has exhibited a cavalier

approach to the proceedings addressing its conduct. The State’s misconduct requires

a significant consequence.




93
   The Special Investigator testified that this was not the first time he had conducted
a search for, and review of, an inmate’s legal paperwork. See State v. Robinson, ID
No. 1411017691, at 206-08 (Del. Super. Oct. 25, 2017) (TRANSCRIPT).
                                           35
      C.     Dismissal is the Only Effective and Appropriate Remedy for the Sixth
             Amendment Violation Under the Circumstances Presented Here.

      When determining the appropriate remedy for a Sixth Amendment violation,

the general rule is that “remedies should be tailored to the injury suffered from the

constitutional violation and should not unnecessarily infringe on competing

interests.”94 In this sense, a mere finding of a Sixth Amendment violation does not

automatically require dismissal of the indictment.95 Rather, the Court must analyze

whether dismissal is appropriate in light of the circumstances of each case and the

prejudice suffered by that particular defendant.

      Here, the State argues that, even if it violated Defendant’s Sixth Amendment

rights, Defendant did not suffer prejudice sufficient to warrant dismissal of the

indictment. The State relies on Morrison, Bailey, and Cannon for the general

proposition that dismissal is inappropriate “absent demonstrable prejudice, or

substantial threat thereof.”96 In those cases, the courts concluded that dismissal was

inappropriate under the particular circumstances. This Court concludes that those

cases are inapposite for two reasons. First, in the case before this Court, Defendant




94
   Morrison, 449 U.S. at 364; see also Bailey, 521 A.2d at 1084.
95
   See Morrison, 449 U.S. at 365; Bailey, 521 A.2d at 1085-86; see also Levy, 577
F.2d at 210 (conducting a separate and independent remedy analysis even after
presuming prejudice to find a Sixth Amendment violation).
96
   See Morrison, 449 U.S. at 365; see also Bailey, 521 A.2d at 1086; State v. Cannon,
ID. No. 1001007728, at 9 (Del. Super. Jan. 3, 2011) (TRANSCRIPT).
                                          36
suffered substantial prejudice as a result of the State’s conduct.97 Second, the cases

upon which the State relies did not involve such an egregious and intentional

violation of a defendant’s Sixth Amendment rights as exists here.

             1.     Unlike the Defendants in Morrison, Bailey, and Cannon, the
                    Defendant Here Did Suffer Substantial Prejudice as a Result of
                    the State’s Actions.

      In Morrison, Bailey and Cannon, the respective courts found that the

defendants did not suffer sufficient prejudice to warrant dismissal. However, those

cases did not involve the same level of prejudice present in this case. Here, the Court

finds that Defendant suffered substantial prejudice as a result of the State’s actions.

      In Morrison, two DEA agents pressured the defendant to cooperate with their

investigation outside of the presence of counsel.98 At the same time, the agents

disparaged defendant’s counsel.99 The defendant moved to dismiss, but did not

argue that she suffered any prejudice as a result of the agents’ actions.100 There was

no showing that the attorney-client relationship had been damaged or that the agents

obtained any privileged information from the defendant as a result of these


97
   See Morrison, 449 U.S. at 365 (finding that dismissal is inappropriate unless the
defendant suffers demonstrable prejudice or the substantial threat thereof).
98
   Id. at 362.
99
   Id.
100
    Id. at 363 (“The [defendant’s] motion [to dismiss] contained no allegation that
the claimed violation had prejudiced the quality or effectiveness of [the defendant’s]
legal representation; nor did it assert that the behavior of the agents had induced her
to plead guilty, had resulted in the prosecution having a stronger case against her, or
had any other adverse impact on her legal position.”).
                                            37
encounters. As a result, the United States Supreme Court concluded that the

defendant did not suffer prejudice as a result of the agents’ actions and, therefore,

that dismissal was inappropriate.101

      In Bailey, the defendant moved to dismiss, arguing that prison officials

interrupted phone calls with his attorney and destroyed documents he had prepared

to show his attorney.102 However, the prosecutors for the defendant’s case were not

at all involved in the challenged activity, such that there was no injury to the

attorney-client relationship and no concerns that the prosecutors were privy to the

defendant’s privileged communications. As a result, the Superior Court denied the

motion to dismiss, concluding that any missing documents could easily be recreated

and obtaining assurances that defendant’s future phone calls would not be

interrupted.103

      In Cannon, the State became concerned that the defendant was fabricating an

alibi.104 The State obtained a search warrant to search the defendant’s cell, but

specifically excluded attorney-client communications from the search parameters.105




101
    Id. at 366.
102
    Bailey, 521 A.2d at 1083.
103
    Id. at 1085.
104
     State v. Cannon, ID. No. 1001007728, at 3 (Del. Super. Ct. Dec. 20, 2010)
(TRANSCRIPT).
105
     State v. Cannon, ID. No. 1001007728, at 4-5 (Del. Super. Jan. 3, 2011)
(TRANSCRIPT).
                                      38
During the search, the investigator accidentally106 seized a notebook containing case

law citations and other material that may have been privileged. 107 As a result, the

defendant moved to dismiss. However, the trial prosecutors were not involved in

the search and seizure and did not see the contents of the notebook.108 Further, the

State had already been aware prior to the accidental seizure that the defendant’s

defense would focus on a potential alibi.109 Therefore, because the trial prosecutors

were not exposed to privileged information and because the State did not obtain any

legal advantage as a result of the accidental seizure, the Court concluded that

dismissal was not an appropriate remedy.110

      Morrison, Bailey, and Cannon did not involve the same level of prejudice

suffered by Defendant in the instant case. Here, the State intentionally chose to have

the Prosecution Team Paralegal, a member of the Prosecution Team, review

Defendant’s privileged attorney-client communications, which caused her to learn


106
    It is noteworthy that in Cannon, the Delaware prosecutors obtained a warrant and
accidentally seized a notebook, which was not the subject of their search, and
conceded the Sixth Amendment violation. It shocks the conscience of this Court
that the Delaware prosecutors in this case took such a radically different approach
and demonstrate such a cavalier attitude towards this Defendant’s Sixth Amendment
rights.
107
     State v. Cannon, ID. No. 1001007728, at 6-7 (Del. Super. Jan. 3, 2011)
(TRANSCRIPT).
108
    Id. at 7-8 (finding that the prosecutors immediately took steps to ensure that they
were not exposed to any privileged information after the accidental seizure).
109
    Id. at 10-11.
110
    Id. at 13 (finding that limited the investigator’s continued involvement with the
case was adequate to remedy the constitutional violation).
                                            39
details of defense strategy. The State then allowed the Prosecution Team Paralegal

to remain on the Prosecution Team and work with the Trial Prosecutors on the

State’s final preparations for trial. Moreover, the Trial Prosecutors were not

effectively screened from the investigation, and the State’s actions have caused a

significant delay in Defendant’s prosecution. In the meantime, Defendant has been

detained. Defendant has suffered substantial prejudice as a result of the State’s

actions.

         2.         The State’s Conduct in this Case is Significantly Different than its
                    Approach in Other Cases.

         This Court is particularly struck by the contrast between the State’s behavior

in Cannon and in this case. In Cannon, the State had concerns that the defendant

was fabricating evidence, so it obtained a search warrant to search the defendant’s

cell and specifically excluded attorney-client correspondence from the search

parameters.111 The State seized privileged materials accidentally, and the trial

prosecutors were so concerned about the potential constitutional violation that they

immediately took steps to prevent any further exposure of the privileged materials.112

         In stark contrast, in the case before this Court, the State claimed to have

concerns that a protective order had been violated. In response, the State made a

unilateral decision to search Defendant’s cell with no judicial oversight, and


111
      Id. at 4-5.
112
      Id. at 7-8.
                                              40
specifically targeted Defendant’s attorney-client communications in the search.

Moreover, the State chose to have a member of the Prosecution Team review

Defendant’s privileged communications, and then failed to screen her from the Trial

Prosecutors, who were already not effectively screened from the investigation.

Upon instruction by the Court to assign different counsel to respond on behalf of the

State, the Senior Prosecutor appeared even though he would later be identified as a

key witness. Then, the State failed to comply with this Court’s orders to produce all

relevant documents and to present all witnesses with knowledge of the search and

seizure.

      The State’s conduct constitutes a significantly more serious violation of

Defendant’s constitutional rights than existed in Cannon or in the other cases on

which the State relies. The Court finds that the State’s behavior weighs in favor of

dismissal.

      3.     No Lesser Sanction Would Adequately Address the State’s Intentional
             Conduct.

      The State not only argues that dismissal is inappropriate in this case, but also

that Defendant is not entitled to any remedy for the violation of his Sixth

Amendment right to the assistance of counsel. The State emphasizes the fact that

trial has not yet taken place, and argues that any prejudice suffered by Defendant

could be rectified before trial. However, the State’s position would mean that it can

intentionally review a defendant’s privileged attorney-client communications at any
                                         41
time before trial without any consequences.         Such a rule would vitiate the

fundamental importance of a defendant’s right to the assistance of counsel and give

the State a license to violate the Sixth Amendment rights of defendants in the future.

      Here, the Prosecution Team Paralegal has already been removed from the

Prosecution Team, and the July 2017 trial was continued. 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. Of course, it would also not be acceptable for

the Senior Prosecutor, Chief Investigator or Assisting Investigator to work on the

Murder Case or TMG Case. In the meantime, Defendant’s release on pre-trial

supervision could also be considered given the long delay occasioned by the State’s

misconduct, during which time Defendant has been detained.

      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. It is not that the State may not engage in an

investigation involving concerns about a breach of a protective order; rather,

procedural safeguards were required: judicial oversight to ensure due process and

                                         42
effective screening to ensure that no privileged communications or defense work

product would be disclosed to the Prosecution Team. The constitutional rights of

criminal defendants must be respected by the State and the rule of law demands

accountability of prosecutors to the Court.113 The nature of the violations of this

Defendant’s 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 State’s actions and the extent to which the State’s actions put at

risk the most fundamental constitutional protections.

                                      CONCLUSION

        This Court has thought long and hard about this matter and has weighed the

competing concerns. Upon careful consideration of the decisional law, the Court’s

findings of fact based on its review of the record evidence, and the Court’s in camera

review of the documents seized, the Court finds that dismissal of the Indictment is

required. As the United States Supreme Court has recognized, “the severe remedy

of dismissal … is a serious consequence because it means that a defendant who may

be guilty of a serious crime will go free, without having been tried.”114 However,


113
    See, e.g., United States v. Leon, 468 U.S. 897, 979-80 (1984) (Stevens, J.,
concurring in part and dissenting in part) (“We could, of course, facilitate the process
of administering justice to those who violate the criminal laws by ignoring the
commands of the … entire Bill of Rights — but is it is the very purpose of a Bill of
Rights to identify values that may not be sacrificed to expediency. In a just society
those who govern, as well as those who are governed, must obey the law.”).
114
    Barker v. Wingo, 407 U.S. 514, 522 (1972).
                                           43
while it may be distasteful to dismiss an indictment before trial, the rule of law

demands that protection of constitutional rights outweighs considerations for the

outcome of any individual case.115

      Here, the State violated Defendant’s Sixth Amendment rights when it

intentionally seized and reviewed Defendant’s privileged attorney-client

communications and when there was actual disclosure of Defendant’s defense

strategy. While it is unfortunate, dismissal is the only remedy that will adequately

and effectively address the Sixth Amendment violation for this Defendant. In

addition, dismissal is the only consequence that will deter the State from violating

the Sixth Amendment rights of criminal defendants in the future.



      NOW, THEREFORE, this 1st day of May, 2018, Defendant’s Motion to

Dismiss is hereby GRANTED and the Indictment is hereby DISMISSED.

      IT IS SO ORDERED.


                                        Andrea L. Rocanelli
                                        ______________________________
                                        The Honorable Andrea L. Rocanelli




115
   See id. (concluding that dismissal before trial is unfortunate, but is sometimes the
only appropriate remedy); see also Strunk v. United States, 412 U.S. 434, 439 (1973)
(“[S]evere remedies are not unique in the application of constitutional standards.”).
                                         44
