                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 44296

STATE OF IDAHO,                         )                    Boise, April 2018 Term
                                        )
      Plaintiff-Respondent,             )                    Filed: November 30, 2018
                                        )
v.                                      )                    Karel A. Lehrman, Clerk
                                        )
ANTHONY J. ROBINS, JR.,                 )                    SUBSTITUTE OPINION. THE
                                        )                    COURT’S PRIOR OPINION
      Defendant-Appellant.              )                    DATED AUGUST 2, 2018, IS
_______________________________________ )                    HEREBY WITHDRAWN.

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, Ada County. Hon. Samuel A. Hoagland, District Judge.

       The judgment of conviction is vacated and the case is remanded for an evidentiary
       hearing.

       Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Dennis Benjamin
       argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Kenneth K. Jorgensen argued.
                                    _____________________

BRODY, Justice.
       This appeal arises from the jury conviction of Anthony J. Robins, Jr., for aiding and
abetting two first-degree murders and an attempted first-degree murder. While he was
incarcerated prior to trial, Robins’s cell was searched and handwritten notes he had prepared in
anticipation of a meeting with counsel were seized and delivered to the prosecuting attorney. The
district court granted Robins partial relief from a violation of his attorney-client privilege but
placed the burden on him to object at trial if the State offered evidence or argument arising from
the privileged materials. Robins argues that the district court erred in fashioning this remedy and
we agree. In light of the circumstances, we vacate his judgment of conviction and remand the
case with instructions to hold an evidentiary hearing to determine whether the State can
overcome the presumption of prejudice arising from its violation of Robins’s attorney-client



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privilege. If the State can overcome the presumption, a new trial should be conducted from
which the Ada County Prosecutor’s Office should be recused.
                 I.      FACTUAL AND PROCEDURAL BACKGROUND
       Robins was charged with aiding and abetting the first-degree murders of Elliot Bailey and
Travone Calloway, and aiding and abetting the attempted first-degree murder of Jeanette Juraska.
He was accused of aiding and abetting John Douglas for each count. The district court granted
the State’s motion to consolidate Robins’s case with the criminal case against Douglas due to the
cases’ common facts, evidence, and witnesses.
       Following his arrest in Northern California, Robins was transferred to the Ada County
Jail. On May 11, 2015, Scott McKay, Robins’s local counsel, delivered discovery files to the jail
so that Robins could have access to the materials while he was detained. Jail personnel informed
McKay that the files could not be stored in Robins’s cell because of the large number of
documents, but that they could be securely stored in the jail library and made available for
Robins’s review. When the files were delivered, McKay informed Robins that his lead counsel,
Brian McMonagle, would be traveling to Boise soon to meet with Robins, and that he should
prepare for the meeting by taking notes and identifying matters of discussion related to his
review of the files. On May 12, 2015, Robins received permission from the jail to review the
files and took notes in anticipation of his meeting with McMonagle. On May 14, 2015, upon
direction from Ada County Deputy Prosecutor Shelley Akamatsu, Robins’s cell was searched by
jail personnel, during which these notes were seized.
       The search of Robins’s cell arose from information received by the Ada County
Prosecutor’s Office that an inmate unaffiliated with this case possessed a letter from Douglas to
Robins that outlined an attempt to coordinate stories and minimize Robins’s culpability for the
murders. The Prosecutor’s Office was informed by the inmate’s counsel that his client intended
to use the letter to broker a deal in his own pending case. Shortly thereafter, Akamatsu spoke
with Ada County Sheriff’s Office Sergeant Justin Ivie and directed him to locate a letter fitting
this description. In turn, Sergeant Ivie instructed Ada County Sheriff’s Office Deputies Cory
Brooks and Timothy Roller to conduct a search of the unaffiliated inmate’s cell to find the letter.
That search did not produce the letter.
       After sharing the news with Akamatsu, Sergeant Ivie received approval from the
prosecuting attorney to search Robins’s and Douglas’s cells. Akamatsu raised the issue of



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attorney-client privilege with respect to the search of the unaffiliated inmate’s cell but did not
address the same concern with respect to the latter two searches. Thereafter, upon an order from
Sergeant Ivie, Deputies Brooks and Roller conducted a search of Robins’s cell. The deputies
were once more instructed to locate the letter from Douglas to Robins that the unaffiliated inmate
had claimed to possess.
       During the search of Robins’s cell, Deputy Roller found four pieces of lined paper
consisting of six pages of handwritten notes in Robins’s property bin. These notes were later
shown to be those that Robins made on May 12th during his review of the discovery files. In
examining the notes for the purpose of their search, the deputies recognized that their contents
referred to Robins’s and Douglas’s cases and trial. The deputies testified that the notes were not
in the form of a typical legal document—i.e., they were not typewritten, on letterhead, in a legal
document, marked as “legal,” stamped by an attorney, or in an envelope. They were, however,
found in Robins’s property bin, which was where inmates were expected to keep their privileged
materials. The deputies also recognized that the notes were not in the form of a letter, as they did
not include names or salutations. Nonetheless, under the belief that they were the objective of
their search and not privileged legal documents, the deputies delivered the notes to Sergeant Ivie.
The notes were then booked into evidence by Sergeant Ivie. At that time, he also notified
Akamatsu, who in turn stated that the seized materials sounded promising and that she had an
interest in seeing their contents. In response, Sergeant Ivie scanned the notes and emailed a copy
to Akamatsu. Later that day, Akamatsu emailed a copy of the scanned notes to McMonagle and
informed him that they had been found during a search of Robins’s cell and booked into
evidence.
       After the search of Robins’s cell, the deputies searched Douglas’s cell, which resulted in
the seizure of notes and a lined notebook that were also delivered to Sergeant Ivie and eventually
Akamatsu. The next day, the unaffiliated inmate’s attorney visited the Prosecutor’s Office and
turned over a letter that had been given to him by his client. This letter was revealed to be the
true objective of the searches the day before.
       Following these events, Robins filed a motion for order to show cause and for other relief
from the State’s violation of his attorney-client privilege. In the motion, Robins asserted that the
notes contained privileged content and requested the dismissal of the pending charges or, in the
alternative, an order recusing the Ada County Prosecutor’s Office. In addition, Robins requested



                                                 3
the return of the privileged materials without the State’s retention of copies, the prohibition of
the State from making any evidentiary use of its review of the materials, the requirement of the
State to demonstrate in advance of trial that any evidence it intended to offer originated
independently of the privileged materials, and the prohibition of the State from seizing and
reviewing other privileged materials.
       Before the district court considered this motion, Robins also moved for relief from
prejudicial joinder and sought to have his trial severed from Douglas’s trial. The basis for this
second motion was that severance was necessary to protect his Sixth Amendment rights because
the letter written by Douglas (and turned over to the prosecuting attorney by the unaffiliated
inmate) was inadmissible against him.
       On September 23, 2015, about four months after the notes were seized, the district court
held an evidentiary hearing, at which Sergeant Ivie and Deputies Brooks and Roller were
presented for testimony. During this hearing, the seized notes were admitted as a sealed exhibit.
On September 30, 2015, after the district court reviewed the notes, it ordered the State to turn
over all of its copies and any materials derived therefrom until it could issue a final decision on
the pending motions. The State complied. On October 23, 2015, the district court issued a
memorandum decision granting Robins’s motion for order to show cause and for other relief in
part. The district court also denied Robins’s motion to sever.
       A jury ultimately found Robins guilty of all three counts against him. The letter
intercepted by the unaffiliated inmate was admitted at trial over Robins’s objections. Robins was
sentenced to two concurrent life sentences, with forty years fixed, for the convictions of aiding
and abetting first-degree murder and a concurrent fifteen-year fixed sentence for the conviction
of aiding and abetting attempted first-degree murder. He timely appealed from the judgment of
conviction.
                                        II.    ANALYSIS
       Robins challenges the district court’s decisions on two pretrial motions for relief. We will
consider each of these decisions in turn.
   A. Motion for Relief from the State’s Violation of Attorney-Client Privilege
       Robins contends that the district court erroneously required him to meet an initial burden
at trial to show that he was prejudiced by the State’s presentation of evidence or argument gained
from its intrusion into his constitutional right to counsel. In response, the State argues that



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Robins is not entitled to any relief because he has failed to identify the actual prejudice he
suffered as a result of the State’s acquisition of his notes. “When an appellant asserts the
violation of a constitutional right, we give deference to the trial court’s factual findings unless
those findings are clearly erroneous.” State v. Dunlap, 155 Idaho 345, 361, 313 P.3d 1, 17 (2013)
(quoting State v. Pearce, 146 Idaho 241, 248, 192 P.3d 1065, 1072 (2008)). “We exercise free
review over the trial court’s determination as to whether constitutional requirements have been
satisfied in light of the facts found.” Id.
          The Legislature’s codification of the attorney-client privilege provides that “[a]n attorney
cannot, without the consent of his client, be examined as to any communication made by the
client to him, or his advice given thereon in the course of professional employment.” I.C. § 9-
203(2); State v. Iwakiri, 106 Idaho 618, 621, 682 P.2d 571, 574 (1984). The privilege is further
defined under Idaho Rule of Evidence 502, which states:
          A client has a privilege to refuse to disclose and to prevent any other person from
          disclosing confidential communications made for the purpose of facilitating the
          rendition of professional legal services to the client which were made . . . between
          the client or the client’s representative and the client’s lawyer or the lawyer’s
          representative.
I.R.E. 502(b). The privilege set forth by Rule 502 applies in “all actions, cases and proceedings
in the courts of the State of Idaho and all actions, cases and proceedings to which rules of
evidence are applicable.” I.R.E. 101(b). For the privilege to apply, “the communication must be
confidential within the meaning of the rule and made between persons described in the rule for
the purposes of rendering legal advice.” Farr v. Mischler, 129 Idaho 201, 207, 923 P.2d 446, 452
(1996).
          Government intrusion of the attorney-client privilege can implicate an accused’s
constitutional rights to assistance of counsel and due process. Stuart v. State, 118 Idaho 932,
934–35, 801 P.2d 1283, 1285–86 (1990) (citing Weatherford v. Bursey, 429 U.S. 545 (1977), and
Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951), cert. denied, 342 U.S. 926 (1952)). The
right to assistance of counsel is preserved under the Sixth Amendment of the U.S. Constitution.
U.S. Const. amend. VI, XIV; Gideon v. Wainwright, 372 U.S. 335, 345 (1963); see also Idaho
Const. art. I, § 13. This right is considered so fundamental that it has been recognized as “the
right to effective assistance of counsel.” Stuart, 118 Idaho at 934–35, 801 P.2d at 1285–86 (citing
McMann v. Richardson, 397 U.S. 759 (1970)). It cannot be disregarded by the states. Id. at 935,
801 P.2d at 1286 (citing Reece v. Georgia, 350 U.S. 85 (1955)). Encompassed within this right is


                                                   5
the constitutional protection of attorney-client conversations: “A defendant and his attorney must
be afforded the opportunity to discuss freely and confidentially.” Id. “One threat to the effective
assistance of counsel posed by government interception of attorney-client communications lies in
the inhibition of free exchanges between defendant and counsel because of the fear of being
overheard.” Weatherford, 429 U.S. at 554 n.4.
       The importance of this protection notwithstanding, a defendant’s constitutional right to
counsel is only violated when it is shown that substantial prejudice was caused by the State’s
intrusion into or interference with the confidential attorney-client relationship. State v. Martinez,
102 Idaho 875, 879, 643 P.2d 555, 559 (Ct. App. 1982) (citing United States v. Irwin, 612 F.2d
1182 (9th Cir. 1980)); see also Williams v. Woodford, 384 F.3d 567, 584–85 (9th Cir. 2004). In
Irwin, the Ninth Circuit expanded on this required showing of prejudice:
       [M]ere government intrusion into the attorney-client relationship, although not
       condoned by the court, is not of itself violative of the Sixth Amendment right to
       counsel. Rather, the right is only violated when the intrusion substantially
       prejudices the defendant. Prejudice can manifest itself in several ways. It results
       when evidence gained through the interference is used against the defendant at
       trial. It also can result from the prosecution’s use of confidential information
       pertaining to the defense plans and strategy, from government influence which
       destroys the defendant’s confidence in his attorney, and from other actions
       designed to give the prosecution an unfair advantage at trial.
612 F.2d at 1186–87 (footnotes omitted).
       In its consideration of Robins’s motion, the district court found that the notes contained
information about a potential alibi, potential discovery responses, and questions for counsel. The
district court next examined the circumstances surrounding the notes—namely, their creation by
Robins at the direction of his counsel and his effort to maintain their confidentiality by placing
them in his personal property bin, albeit without clear indication that they were privileged—and
concluded that they constituted confidential communications that were intended to facilitate
defense counsel’s legal representation. Particularly, the district court described, “[t]he notes at
issue deal with Robins’ thoughts and commentary regarding some very specific facts of the case.
It is fair to say that the State has been forewarned as to potential defense strategies.”
       Given the nature of the notes, the district court found that Robins may have been
prejudiced because the State had an “inside look” as to how he viewed the case and his defense.
Because the notes were confidential and, if admitted, prejudicial, the district court held that the
notes would be inadmissible at trial under Idaho Rule of Evidence 502 or, if necessary, Rule of


                                                  6
Evidence 403. In turn, the district court reaffirmed its earlier order requiring the State to return
all copies of the notes and any prepared materials deriving from the notes. From there, the
district court recognized that the return of the notes did not erase the memory of their contents,
but that it was impossible to determine whether there would ever be any actual prejudice to the
defendant. Thus, the district court distinguished potential prejudice from actual prejudice,
finding that the State’s access to Robins’s defense strategies constituted potential prejudice but
that actual prejudice would only be realized at trial. Referencing the State’s assertions that the
notes did not contain anything it did not already know and that it was prepared to identify an
independent source for each piece of information included within the notes, the district court
denied Robins’s separate requests for dismissal and recusal. The district court granted the motion
to the extent that it held the notes were inadmissible and that the State could not utilize or refer to
the notes in any way during trial absent Robins’s opening of the door. The district court
concluded by explaining that if Robins believed at trial that the State was offering evidence or
argument that could only have been obtained from the notes, he could object and the State would
then be required to demonstrate an independent source. At trial, no objections of this kind were
made.
        On appeal, the parties do not dispute the contents of the notes, nor do they dispute the
district court’s conclusion that the notes were privileged. Instead, they focus entirely on whether
the district court’s remedy properly appreciated the nature of Robins’s requirement to show that
he was prejudiced by the State’s intrusion on his attorney-client relationship.
        The State points us to the decisions in Stuart v. State, 118 Idaho 932, 801 P.2d 1283
(1990), and State v. Martinez, 102 Idaho 875, 643 P.2d 555 (Ct. App. 1982), contending that the
outcomes in those cases were comparable to the district court’s remedy here. Robins disagrees,
claiming neither decision dealt with the specific form of the State’s intrusion at issue in this case.
        Stuart and Martinez involved possible recording of an incarcerated defendant’s
communications with his attorney. In Martinez, the Court of Appeals held that the defendant
failed to show that the State’s intrusion caused him substantial prejudice. 102 Idaho at 879, 643
P.2d at 559. This holding was based on the fact that neither the defendant nor his attorney nor
anyone at the sheriff’s office testified as to the substance of the recorded communications. Id.
Without such testimony and given the fact that the attorney involved was not even the




                                                  7
defendant’s trial counsel, the court explained that it would not assume that those communications
included discussion of trial strategy much less prejudiced the defendant. Id.
       In Stuart, this Court distinguished the case at hand from Martinez because both the
defendant and his counsel testified as to the content of the conversations that were claimed to
have been recorded by jail personnel. 118 Idaho at 934, 801 P.2d at 1285. The case was
remanded to the trial court for an evidentiary hearing to determine whether the conversations had
actually been recorded, and, if so, whether the defendant’s constitutional rights were violated. Id.
at 935, 801 P.2d at 1286. The Court explained that inquiry into the second issue would require
the State to demonstrate an independent origin for the relevant evidence. Id. The particular
evidence at issue was the names and locations of various witnesses who were subsequently
called to testify at trial by the State. Id. at 934, 801 P. 2d at 1285. A later appeal from the same
case revealed that the conversations had been recorded but that the State established that the
defendant’s constitutional rights had not been violated. Stuart v. State, 136 Idaho 490, 492, 36
P.3d 1278, 1280 (2001).
       If anything, this case is a logical extension from the Stuart case history. Here, the district
court found that the contents of Robins’s notes were privileged and that the State obtained access
to those notes. Under one interpretation of the Stuart decisions, this constituted a prima facie
showing of prejudice, at which point the State should have been required to establish that
Robins’s constitutional right to counsel had not been violated. This calculus was not employed
by the district court despite it being part of the relief requested by Robins. On the other hand, the
argument against a straightforward application of this analysis to the case at hand is that the
Stuart decisions acknowledge that the defendant had identified specific evidence—i.e., names
and locations of witnesses that were called to testify by the State—that could have been drawn
solely from his privileged conversations with counsel. This counterargument matches the State’s
general contention that Robins has not established that he was prejudiced because he has not
offered any specificity regarding the evidence that the State acquired with its access to his notes.
Finding that Stuart stands for the rule that a shifting of the burden must be implemented where
the defendant has made a prima facie showing of prejudice, the issue turns to how such a
showing can be made.
       To this point, Robins relies on a case—United States v. Danielson, 325 F.3d 1054 (9th
Cir. 2003)—that proves useful for understanding the nature of establishing prejudice where the



                                                 8
government has acquired knowledge of defense strategies. Danielson involved a government
informant who acted affirmatively to acquire information during conversations with the
defendant that was later shared with law enforcement and the prosecution team. 325 F.3d at
1068–69. Specifically, the informant acquired information regarding the defendant’s trial
strategy. Id. As such, the court sought to answer “what constitutes ‘substantial prejudice’ and
who bears the burden of proof when an improper intrusion into the attorney-client relationship
results in the prosecution’s obtaining information about the defendant’s trial strategy.” Id. at
1069–70. Although the facts of Danielson do not perfectly translate to this case, the analysis and
rule adopted by the Ninth Circuit seamlessly complement this Court’s Stuart precedent.
        The Danielson court distinguished the prosecution’s access to defense strategies from its
access to a particular piece of evidence or statement, and explained that the more amorphous
nature of strategies meant that the question of prejudice was more subtle and that it would be
hard to ever know whether the defendant suffered prejudice. Id. at 1070. The court added that in
situations of this kind there exists a knowledge imbalance where only the prosecution will ever
know what it did and why, while the defendant can only guess. Id. Given these conditions, the
court discussed the difficulty a defendant faces in showing prejudice when the prosecution has
access to his trial strategy:
        The prosecution makes a host of discretionary and judgmental decisions in
        preparing its case. It would be virtually impossible for an appellant or a court to
        sort out how any particular piece of information in the possession of the
        prosecution was consciously or subconsciously factored into each of those
        decisions.
Id. at 1071 (quoting Briggs v. Goodwin, 698 F.2d 486, 494 (D.C. Cir. 1983)).
        To combat these problems, the court implemented a burden-shifting rule for establishing
prejudice when intrusion into the attorney-client relationship leads to the government obtaining
trial and defense strategies. First, the defendant must make a prima facie showing of prejudice by
establishing that the government acted affirmatively to intrude into the attorney-client
relationship to obtain the privileged information. Id. In the informant context, the court explained
that it would not be enough that a government informant was involuntarily present and passively
received privileged information. Id. (relying on precedent involving an undercover and passive
government informant, Weatherford v. Bursey, 429 U.S. 545 (1977)). Second, once the prima
facie case has been established, the burden shifts to the government to show that there has been
no prejudice to the defendant. Id. (citing United States v. Mastroianni, 749 F.2d 900, 907–08 (1st


                                                 9
Cir. 1984)). With regard to the second step, the court looked to the decision in Kastigar v. United
States, 406 U.S. 441, 460–62 (1972), to explain how the government is to meet their “heavy
burden” of showing non-use after a defendant has made the requisite prima facie showing:
       [T]he mere assertion by the government of “the integrity and good faith of the
       prosecuting authorities” is not enough. Rather, the government must present
       evidence, and must show by a preponderance of that evidence, that “all of the
       evidence it proposes to use,” and all of its trial strategy, were “derived from
       legitimate independent sources.” In the absence of such an evidentiary showing
       by the government, the defendant has suffered prejudice.
Danielson, 325 F.3d at 1072 (citations omitted).
       Thus, the Danielson court created a framework for what is now known in federal courts
as Kastigar hearings. These hearings are conducted pretrial, during trial, or post-trial, and allow
the Government an opportunity to bear its heavy burden of proving an independent source for all
its evidence and trial strategies apart from any tainted evidence it may have obtained. In re
Grand Jury Subpoena, 119 F.3d 750, 751 (9th Cir. 1997) (citing In re Grand Jury Subpoena
(Huntington Beach Police Officers Ass’n), 75 F.3d 446, 448 (9th Cir. 1996)) (discussing a Fifth
Amendment violation). The trial judge makes specific factual findings of the independent nature
of the Government’s evidence or trial strategies and thereafter provides an appropriate remedy if
the Government fails to prove by a preponderance of the evidence an independent source—
suppression may be granted pre-trial, and harmless error may be applied post-trial. Yet, a
Kastigar hearing is not conducted unless a defendant is able to show the possibility of the
Government’s use of compelled testimony. U.S. v. Harris, 973 F.2d 333, 336 (4th Cir. 1992).
       The circumstances of this case are slightly different from those in Danielson and other
federal cases—particularly, the issue does not center on the actions of a government informant or
compelled testimony—yet, the sound reasoning undergirding these decisions can be used here to
determine whether Robins made a prima facie showing such that the burden should have been
shifted to the State to demonstrate that the seizure of the confidential information did not
prejudice Robins.
       In cases where the Danielson analysis has been applied beyond the informant context,
courts have focused on the course of events leading to the government intrusion and the exposure
of the prosecution team to the privileged content. See, e.g., Cooper v. Mayfi, No. C 06-4872 MJJ
(PR), 2008 WL 608336, at *13 (N.D. Cal. Mar. 3, 2008); Navarro v. Adams, 419 F. Supp. 2d
1196, 1201–04 (C.D. Cal. 2006). For example, in Cooper, the court concluded that the prima


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facie standard was not met in a case involving the seizure of privileged materials from the
defendant’s jail cell:
        Petitioner, here, has not pointed to any evidence that law enforcement
        “deliberately” or “affirmatively” intruded into the attorney-client relationship for
        the purpose of obtaining the defense trial strategy. Detective Daniel served a valid
        search warrant on petitioner for the sole purpose of an investigation of threats to
        potential witnesses, not to interfere with petitioner’s relationship with his defense
        counsel. Daniel was not looking for evidence or trial strategy regarding the
        pending murder charge on the behalf of the prosecution. In addition, the
        prosecutor filed a declaration stating that he had not seen the material seized from
        petitioner’s cell, and that Daniel, the detective who conducted the search, assured
        the prosecutor that the search was conducted “in a fashion which respected
        attorney-client privilege.” Therefore, under the governing federal law set forth in
        Danielson, the state courts properly found that the petitioner had the burden to
        show prejudice, and that such burden did not shift to the prosecution.
Cooper, 2008 WL 608336, at *13. The Navarro court reached a similar conclusion after
considering evidence showing that a jail cell search arising from a prosecutor’s request to locate
any information on gang activity or witness threats led to the seizure of privileged materials. 419
F. Supp. 2d at 1202–03. The court emphasized that the materials were properly seized and were
not shown to the prosecutor but instead delivered directly to the trial judge. Id.
        The facts here closely follow the facts in Cooper and Navarro through the search and the
initial seizure of privileged materials. Specifically, in this case, jail personnel were instructed to
locate a letter that had come into the possession of another inmate that was alleged to have been
written by Douglas to Robins. Testimony from the evidentiary hearing indicates that the deputies
were aware of possible exposure to material protected by inmates’ attorney-client privilege.
Robins does not contest the legality of the search on appeal. In short, it seems clear that the
search was not conducted for a purpose of intruding on Robins’s privilege.
        Yet, once the privileged notes were seized from Robins’s cell, the facts in this case depart
from those in Cooper and Navarro—namely, the record shows that the notes were delivered to
Deputy Prosecutor Akamatsu who, according to the district court, was the first person to identify
that they were private and intended for an attorney. At that point, the prosecuting attorney
provided a copy of the notes to Robins’s counsel and informed him that they had been seized.
From there, however, the record does not indicate that Akamatsu took any action to insulate
herself from the privileged materials. Rather, the record shows that Akamatsu and the Ada
County Prosecutor’s Office retained the notes for four months until the district court ordered that



                                                 11
all copies be returned to Robins. The record once more fails to establish that Akamatsu was in
some way screened from further exposure to the notes throughout this time. In fact, given that
Akamatsu argued throughout the proceedings on Robins’s motion that the notes were not
privileged because they were not held out to be confidential communications with counsel it can
be presumed that she was not walled off from their contents.
        Prosecutorial access to and retention of privileged content was at the center of the
government’s intrusion in Danielson. In that case, the Ninth Circuit continually emphasized that
attempts to insulate the prosecution team did not go far enough, noting that the privileged
information was ultimately obtained and preserved by members of the team. 325 F.3d at 1073–
74. The court also stressed that the prosecution team wrote memoranda about the privileged
information and listened to recordings and transcribed transcripts containing the information, and
that the lead prosecutor retained most if not all of the information in his private office. Id. at
1074.
        The Ninth Circuit has explained since Danielson that mere communication of defense
strategies to the prosecution is sufficient to constitute a violation of the Sixth Amendment.
United States v. Fernandez, 388 F.3d 1199, 1240 (9th Cir. 2004) (citing Danielson, 325 F.3d at
1067). That being the case, courts applying the Danielson analysis have highlighted prosecutorial
conduct in a manner that shows concern about such retention and engagement with privileged
content. E.g., United States v. Young, No. 3:13-cr-00764-WHO-1, 2017 WL 930775, at *4–5
(N.D. Cal. Mar. 9, 2017) (finding no showing of substantial prejudice because the prosecution
team was effectively insulated from privileged content); United States v. Guzman-Solis, No. CR-
14-01729-001-TUC-CKJ, 2015 WL 13283396, at *8 (D. Ariz. Oct. 19, 2015) (“[H]ere, in
contrast to Danielson, there is no evidence that the tape recorded conversation was listened to by
the prosecution or that the prosecution otherwise acquired knowledge of the contents of the
privileged conversation.”); People v. Ervine, 220 P.3d 820, 838–40 (Cal. 2009) (finding burden
not met where evidence established that no privileged information had been communicated to the
prosecution team following a jail cell search). Outside of Danielson, some courts have held that
the prosecution’s access to trial and defense strategies required a presumption of prejudice. E.g.,
United States v. Levy, 577 F.2d 200, 210 (3rd Cir. 1978) (applying a presumption of prejudice
where the prosecutor became privy to trial strategy); State v. Lenarz, 22 A.3d 536, 542, 548–49
(Conn. 2011) (holding that a presumption of prejudice must apply when the prosecution itself



                                                12
learns of confidential communications containing trial strategy given that disclosure of such
information is inherently prejudicial); State v. Cory, 382 P.2d 1019, 1022–23 (Wash. 1963)
(applying a presumption of prejudice where the prosecutor was assumed to have been aware of
privileged strategy).
       An overarching theme of these decisions is that the prosecution’s intrusion into the
privileged strategic communications between a client and his attorney weakens the essential and
demanding protections inherent in the constitutional right to counsel and undermines the balance
necessary in our society’s adversarial system of justice. Such reasoning resonates strongly. The
record here shows that the prosecuting attorney had prolonged access to privileged notes that
included at least some of Robins’s possible trial and defense strategies. While there are not clear
answers as to if and how the prosecution’s access and retention led to specific outcomes that
were prejudicial to Robins at trial, this uncertainty is precisely the problem when the privileged
communications at issue consist of the defendant’s plans and strategies. Given the protections
underlying the attorney-client privilege and the constitutional right to counsel, we hold that the
circumstances here were sufficient to conclude that Robins satisfied a prima facie showing of
prejudice. That being the case, the burden should have shifted to the State to show that Robins’s
rights had not been violated. The State asserted in response to Robins’s motion that it had the
ability to satisfy this burden by showing an independent origin for its evidence and argument.
The district court even recognized the State’s claim in its ruling. Yet, this ability was never tested
as the burden was never shifted. This constitutes error.
       Because this appeal arises from Robins’s judgment of conviction, our finding that the
district court did not properly address Robins’s prima facie showing of the violation of his
constitutional right requires us to vacate that judgment and the corresponding sentence. There
remains a difficult question as to how to proceed now that a trial has occurred.
       Robins argues that this Court should dismiss the charges against him because prejudice
resulting from an invasion of his attorney-client privilege cannot be removed, isolated, or
avoided in a new trial. As an alternative, Robins seeks a new trial with the recusal of the Ada
County Prosecutor’s Office and the requirement on the new prosecuting attorney to present proof
that every piece of evidence and strategic decision has an independent origin. The State responds
that dismissal is unwarranted because it is not tailored to the specific harm at issue and that




                                                 13
retrial is the appropriate remedy in cases involving government intrusion into the attorney-client
relationship.
       The U.S. Supreme Court has explained that “[c]ases involving Sixth Amendment
deprivations are subject to the general rule that remedies should be tailored to the injury suffered
from the constitutional violation and should not unnecessarily infringe on competing interests.”
United States v. Morrison, 449 U.S. 361, 364 (1980). The facts of Morrison are distinct from
those at hand but the general rule described by the Supreme Court offers useful guidance in our
effort to ascertain the appropriate remedy for this case.
       For support of his request for dismissal, Robins asks us to consider a similar outcome in
State v. Cory, 382 P.2d 1019 (Wash. 1963). The facts of that case certainly echo many of those
that are at issue here. In Cory, the Washington Supreme Court dismissed a case after conducting
a post-trial review of the denial of a pretrial motion to dismiss based on a violation of the
defendant’s right to counsel. 382 P.2d at 1019. The motion arose from the sheriff’s office’s
eavesdropping on the defendant’s conversations with counsel while he was incarcerated. Id. at
1019–20. Upon investigation by the trial court, the recordings were discovered and it was
presumed by the court that the prosecutor had been privy to their contents. Id. at 1020, 1022 n.3.
Despite this, and akin to the case here, the court denied the motion, but informed the parties that
it would exclude any evidence derived through the eavesdropping on motion of the defendant at
trial. Id. at 1020. Following the defendant’s conviction, the appellate court considered remedies
fashioned by other courts where a defendant’s constitutional rights had been violated through
eavesdropping on the attorney-client relationship. Id. at 1020–22. In so doing, the court reached
its conclusion that a new trial would not sufficiently remedy the problem because the prejudicial
taint could never be removed from the prosecution:
       There is no way to isolate the prejudice resulting from an eavesdropping activity,
       such as this. If the prosecution gained information which aided it in the
       preparation of its case, that information would be as available in the second trial
       as in the first. If the defendant’s right to private consultation has been interfered
       with once, that interference is as applicable to a second trial as to the first. And if
       the investigating officers and the prosecution know that the most severe
       consequence which can follow from their violation of one of the most valuable
       rights of a defendant, is that they will have to try the case twice, it can hardly be
       supposed that they will be seriously deterred from indulging in this very simple
       and convenient method of obtaining evidence and knowledge of the defendant’s
       trial strategy.
Id. at 1022–23 (footnote omitted).


                                                 14
       Robins correctly notes that Idaho courts have cited Cory; however, such citations are
relatively insignificant as they pertain to resolution of this case. State v. Martinez, 102 Idaho 875,
879, 643 P.2d 555, 559 (Ct. App. 1982) (finding the outcome in Cory to be inapposite of the case
at hand because there was no evidence that the State had obtained access to privileged trial
strategy); see also Stuart v. State, 118 Idaho 932, 935, 801 P.2d 1283, 1286 (1990) (using Cory
for general rule statements regarding the right to counsel). Unlike in those cases, the posture of
this case is nearly identical to the one presented in the Cory decision. That said, the nature of the
Cory holding intimates that the court considered as unrebuttable any presumption of prejudice
arising from the state’s intrusion into the attorney-client relationship. Since Cory, the
Washington Supreme Court has examined this specific issue and concluded that the presumption
can in fact be overcome if the state proves beyond a reasonable doubt that the defendant was not
prejudiced before or during the trial by tainted evidence. State v. Peña Fuentes, 318 P.3d 257,
262 (Wash. 2014).
       As explained above, in Stuart, this Court encountered this issue and impliedly recognized
that the presumption of prejudice is rebuttable by affording the State an opportunity to establish
the existence of an independent origin of the relevant evidence. 118 Idaho at 935, 801 P.2d at
1286. This remedy is consistent with other courts that have dealt with situations of this kind.
Most notably, remanding the case for a Kastigar-type hearing to determine whether the
government could establish an independent origin was the precise remedy the Ninth Circuit
settled upon in Danielson. 325 F.3d at 1074; see also Schillinger v. Haworth, 70 F.3d 1132,
1142–43 (10th Cir. 1995) (remanding for “factfinding procedures to determine the extent of the
intrusion as well as the proper remedy”). In both Stuart and Danielson, remanding the case for a
Kastigar hearing could be tied to a previously denied post-trial filing of the defendant. 118 Idaho
at 933, 801 P.2d at 1284 (petition for post-conviction relief); 325 F.3d at 1065 (post-trial motion
for a new trial). Because Robins appealed directly from his judgment of conviction, returning
this action to the district court is procedurally distinct. Even so, we believe such a remedy is
appropriate.
       This case suffered from an improper pretrial remedy. It bears emphasizing that the
impropriety of that remedy cut both ways. By not shifting the burden to the State, the district
court failed to recognize the violation of Robins’s constitutional right to counsel as defined by
the presumption of prejudice we have found he established. Yet, by not shifting the burden, the



                                                 15
remedy also denied the State its chance to prove that such a violation did not in fact occur. Given
that the State has consistently asserted that it had an ability to establish an independent origin for
all of its evidence and argument, the double-edged nature of the improper remedy is significant.
We recognized above that Robins made a prima facie showing of prejudice. We now also
recognize that such a showing remained rebuttable and the State should have been afforded this
opportunity.
       The difficulty inherent in remanding this case for an evidentiary hearing to determine
whether the State can rebut the presumption is not treated lightly. Nonetheless, we find this
necessary, as the record before the Court leaves us unable to determine whether the State could
meet this burden. The district court found that Robins’s notes contained privileged defense
strategy. On appeal, Robins lays out how the information contained in those notes translated to
the parties’ arguments at trial, thus intending to imply that the State’s access to the notes
necessarily resulted in its prejudicial use of the same. This advocacy notwithstanding, the State
has not yet been challenged to address this specific issue, and therefore we are unable to assess
whether Robins’s theory holds up when the State bears its burden of proof. The district court is
the appropriate forum for that inquiry to be made. While not simple or ideal to return to a pretrial
issue now that trial has occurred, this remedy provides both parties an opportunity to consider a
narrow question under the circumstances that should have been in place when Robins’s motion
was first presented.
       In remanding the case, we find it prudent to instruct the district court as to the scope of
the evidentiary hearing that is to take place. The Ada County Prosecutor’s Office is to handle the
hearing for the State. Procedurally, at the hearing, the State must prove by a preponderance of
the evidence that the evidence it presented at trial and its trial strategy derived from an origin
independent of Robins’s notes. See Danielson, 325 F.3d at 1074 (“Strategy in this context is a
broad term that includes, but is not limited to, such things as decisions about the scope and
nature of the investigation, about what witnesses to call (and in what order), about what
questions to ask (and in what order), about what lines of defense to anticipate in presenting the
case in chief, and about what to save for possible rebuttal.”). Unlike in Stuart, where this Court
remanded the action for a similar inquiry and the State was eventually able to show that the
defendant had not been prejudiced through use of other exceptions to the exclusionary rule, 136
Idaho 490, 495, 36 P.3d 1278, 1283 (2001), the State has consistently argued here that it was



                                                 16
able to satisfy the standard for the independent-origin exception. As such, it will be strictly held
to that position. However, if the State fails to meet this heavy burden, the trial judge must
determine whether the evidence or trial strategy that was tainted by the illegal evidence affected
the substantial rights of the defendant or was merely harmless error. See I.C.R. 52. Proof beyond
a reasonable doubt is the same standard our appellate courts employ in reviewing for harmless
error when a constitutional violation occurred at trial, and therefore proof beyond a reasonable
doubt is the standard the State must for a finding of harmless error in using tainted evidence at
trial. State v. Perry, 150 Idaho 209, 221–22, 227–28, 245 P.3d 961, 973–74, 979–80 (2010)
(citing in part Chapman v. California, 386 U.S. 18 (1967)).
       Should the State fail to prove by a preponderance of the evidence that its evidence and
trial strategy had an independent origin and that any use of tainted evidence was beyond a
reasonable doubt harmless error, it will be left to the sound discretion of the district court to
determine the proper remedy. While we will not preemptively intrude on that discretion, we
believe it necessary to impress upon the district court that, under circumstances of this kind, all
remedies must be considered available. Any remedy should heed the U.S. Supreme Court’s
guidance in Morrison that deprivations of this nature must be tailored to the injury suffered and
the competing interests at stake. Regardless of the specific remedy, complete and permanent
elimination of the prejudice arising from the State’s intrusion must remain the paramount
objective. Given the pervasive depths prejudicial access to defense strategies can reach, merely
retrying the case with the recusal of Ada County Prosecutor’s Office may not be enough. Greater
steps such as the employment of additional, independent counsel assigned solely to ensure that
no further prejudice emerges during any subsequent prosecution may prove necessary.
Additionally, dismissing the charges should remain an option if the circumstances are such that
prejudice arising from the State’s prior transgression cannot be completely purged or escaped.
   B. Motion to Sever
       Robins’s motion to sever his trial from Douglas’s centered on the admissibility of the
letter that a jailhouse inmate allegedly intercepted from Douglas. The letter read as follows:
       This is how we gonna play this. you get with your Ls tell him you want to cut a
       deal. But this is what you tell them. Tone ordered 30ps them dudes took the 30ps
       from tone he called you asked you did you know anybody who wanted to put in
       some work you called me told me somebody tone wanted to holler at me so tone
       flew me down there Boise told me what he wanted me to do only reason you and
       cook was down there was to pick me up and head out to Vegas or somewhere to


                                                17
       party for cooks birthday so when yall got down there we all kicked it for a couple
       of days. the day of the murder you went where you went and cook went to the
       strip club when you got back that’s when I said ya we out. that’s when you said
       cook had the van keys that’s where you called girl to take us to the strip club, you
       still didn’t know what happened at this time we got cook come back you hit girl
       we packed and left people started hiting you up telling you what happened. that’s
       when you asked me what what’s up that’s when I told you I bodyed them 2 dudes,
       now listen this is the story you have to fill in the blanks you tell them everything
       he said you did you tell them he did once you get back at me and let me know you
       got the deal you want i will let them know i want to plea out that’s when i will
       back your story about tone was the driver and he gave me money gun everything.
       Not you. Run this by your Ls and get back with me aint no need both of us going
       down I already know yall will play yall part because love & loyalty tell your Ls to
       get at me so we can put this shit in motion A.S.A.P. P.S. or do you want to go
       with i plea out and you go trial ask me for witness and tell them tone drove the
       van, gave me the gun and put the hit together, it’s your call get with your Ls tell
       him to come see me or what ever. Let me know wicth way to go. Peace Love Big
       Homie
       Before the district court, Robins argued that the letter was inadmissible hearsay and
contended that he would be unfairly prejudiced without the ability to cross-examine Douglas
about its contents. The district court agreed that the letter was hearsay, but found that it was
admissible against Robins through the hearsay exception for statements against interest under
Idaho Rule of Evidence 804(b)(3). In reaching this conclusion, the district court relied on the
analysis of State v. Averett, 142 Idaho 879, 136 P.3d 350 (Ct. App. 2006). At trial, the letter was
admitted in its entirety over Robins’s objections.
       The district court’s denial of Robins’s motion to sever is moot at this point given our
decision to vacate the judgment of conviction. Because the letter could still play a role in further
proceedings of this case, however, we will consider the arguments Robins raises against the
district court’s decision to admit the letter as evidence.
This Court reviews a trial court’s admission of evidence under the abuse of discretion standard.
State v. Ehrlick, 158 Idaho 900, 907, 354 P.3d 462, 469 (2014). To determine if a trial court
abused its discretion, this Court considers whether the trial court (1) perceived the issue as one of
discretion, (2) acted within the outer boundaries of that discretion, (3) acted consistently with the
legal standards applicable to the specific choices available to it, and (4) reached its decision by
an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 195 (2018).
       On appeal, Robins argues that the district court’s application of the law was contrary to
governing legal standards. We agree.


                                                  18
        Rule 804(b)(3) provides that a statement is not hearsay if the declarant is unavailable and
it is
        [a] statement which was at the time of its making so far contrary to the declarant’s
        pecuniary or proprietary interest, or so far tended to subject declarant to civil or
        criminal liability, or to render invalid a claim by declarant against another, that a
        reasonable man in declarant’s position would not have made the statement unless
        declarant believed it to be true. A statement tending to expose the declarant to
        criminal liability and offered in a criminal case is not admissible unless
        corroborating circumstances clearly indicate the trustworthiness of the statement.
I.R.E. 804(b)(3).
        In Williamson v. United States, 512 U.S. 594, 596–97 (1994), the U.S. Supreme Court
considered Federal Rule of Evidence 804(b)(3)—which closely tracks Idaho’s rule—as it related
to the admissibility of testimony regarding out-of-court statements of a third party that solely
implicated the defendant. In so doing, the Court first explained that the hearsay exception was
based on “the commonsense notion that reasonable people, even reasonable people who are not
especially honest, tend not to make self-inculpatory statements unless they believe them to be
true.” Id. at 599. Yet, inherent in this notion is a narrow definition of “statement” such that the
exception “does not allow admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory.” Id. at 600–01. This is so because
“[t]he fact that a person is making a broadly self-inculpatory confession does not make more
credible the confession’s non-self-inculpatory parts.” Id. at 599. The Court explained further that
statements may not be presumed to be self-inculpatory for purposes of the exception solely
because they are part of a narrative that constitutes a full confession, and added that this is
especially true when the statements implicate another person. Id. at 600–01.
        Consistent with this guidance, application of Idaho Rule of Evidence 804(b)(3) requires
the court to consider each statement included in a broader narrative to determine whether it is in
fact genuinely self-inculpatory against the declarant. The Court of Appeals recognized this
mandate in Averett, where it iterated much of the foregoing analysis and noted that since
Williamson federal courts have admitted third-party statements that inculpate a defendant only
when three conditions are satisfied: (1) the statement must be genuinely self-inculpatory to the
declarant, (2) the statement is made to a private person and does not seek to curry the favor of
law enforcement authorities, and (3) the statement does not shift blame. Averett, 142 Idaho at
890, 136 P.3d at 361 (citing John W. Strong, McCormick on Evidence § 319 (5th ed. vol. 2



                                                 19
1999)). Error arose in both Williamson and Averett because a narrative was admitted in full
despite the inclusion of statements within the narrative that solely inculpated the defendant; thus,
the first condition was not satisfied because those particular statements were not self-inculpatory
to the declarant. Similarly, in this case, the second and third conditions are not disputed, and the
issue instead centers on whether particular statements within the letter were self-inculpatory
against Douglas as the declarant.
       In its ruling, the district court explained that the letter would be hearsay if it was offered
to show that Douglas was responsible for committing the underlying murders and Robins was
involved in their plotting. Applying Rule 804(b)(3), the district court found that the entire letter
was admissible against Robins because it comported with the three conditions set forth in
Averett:
       Here, the letter is genuinely self-inculpatory as to Mr. Douglas as he places the
       blame on himself for committing the murders. In fact, no part of the letter seeks to
       shift the blame to Mr. Robins, but rather seeks to give Mr. Robins an alibi, so that
       both Defendants do not have to “go down” for the crime. In addition, the letter
       was meant to be delivered to Mr. Robins, not to law enforcement. Indeed, the
       context would clearly indicate that Mr. Douglas would not want law enforcement
       to see it. The letter contains statements that were not intended to be given to law
       enforcement as a self-serving confession, but rather to another inmate in an
       attempt to create a story which Mr. Douglas believed would help both Defendants
       in their cases.
       Robins argues on appeal that the district court erred by not individually reviewing the
statements within the greater narrative to determine whether each one was against Douglas’s
interest. His argument is correct. When parsed individually, the only statement in the letter that
met the standard described in Williamson was the admission that “I bodyed them 2 dudes.” The
remainder of the statements cannot be considered genuinely self-inculpatory to Douglas and
therefore they should not have been admitted through Rule 804(b)(3). In Williamson, the
Supreme Court explicitly rejected the idea that a full narrative could be admitted by including its
non-self-inculpatory parts and excluding its clearly self-serving parts. 512 U.S. at 601. This
conclusion applies here and the letter should not have been admitted in full against Robins.
Finding otherwise disregards the specific nature of the statements in the letter, and in turn
undercuts the careful standard that must be employed when applying the hearsay exception.
                                     III.    CONCLUSION
       In consideration of the foregoing, we vacate the judgment of conviction and remand the



                                                20
case with instructions to hold an evidentiary hearing consistent with this opinion.


       Chief Justice BURDICK, Justices HORTON, BEVAN, and Justice Pro Tem MEYER
CONCUR.




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