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Wildly inappropriate behavior from the office of the prosecutor in Delaware’s largest city generated fascinating discussion among the justices in a recent Delaware Supreme Court opinion. The decision concerns the court’s review of a lower court’s dismissal of Jacquez Robinson’s first-degree murder indictment on the basis of law enforcement misconduct. Specifically, New Castle County prosecutors and their investigators raided the defendant’s jail cell and took his confidential files and notes, which included trial strategy, without notifying the court or his lawyer. In a close call, the five justices of the state’s highest court split three-to-two, with the majority deciding to reverse the lower court’s ruling. Although they declined to dismiss the indictment, the majority reprimanded the prosecutors, disqualified them from further participation in the case, ordered the office to destroy all trial work-product, and required the office to notify the trial court of its opinion if another instance of this misconduct was found. The dissenting justices would have gone even further, finding that the State’s “guileful and inept” response to being caught showed that the problem of misconduct demonstrated by their handling of Mr. Robinson’s documents is not merely an isolated incident.  

Mr. Robinson is being charged for shooting incidents that took place in Wilmington in 2014. In pre-trial proceedings, the court signed a protective order prohibiting Mr. Robinson’s lawyer from sharing certain witness information with her client. After that order was issued, things got interesting. In this piece, we quote extensively from the Delaware Supreme Court’s April 16th opinion. The opinion is remarkable both for its depth and because it captures just how irresponsible and recalcitrant the prosecutors are.

Facts About the Prosecution’s Stealing of Defense Information

Through a prison informant’s statements, prosecutors say they came to believe Mr. Robinson’s defense attorney may have breached the protective order pertaining to witness information. “On June 30, 2017, without notifying [defense counsel], applying for a warrant, or otherwise seeking judicial guidance or approval, the State seized and reviewed all of the documents and notes in Robinson’s cell—including his communications with [his lawyer] and personal notes containing trial strategy.”

Before we go further, here are the key names to know: lead prosecutors on Mr. Robinson’s case, John Downs and Mark Denney, and their boss Joseph Grubb, the chief prosecutor for New Castle County. There were many other players, but to keep things a little less complicated in this post we’ll refer to all other involved individuals by their positions rather than their names.

After Downs and Denney told Grubb their concerns—allegedly based on the snitch’s tip—Grubb did not notify the court. Instead, Grubb tasked his office’s investigators with collecting and reviewing papers taken from the defendant’s cell. The primary investigator was not cautioned to treat attorney-client information carefully, and, in fact, stated he believed he should be looking for such communications. The secondary investigator “did not receive any training on the attorney-client privilege, nor did he even know that the search involved a potential protective order violation.” These investigators flagged and took the documents they thought should be reviewed further. According to the offices’ claims, “they kept virtually no record of the contents of the seized documents or how they went about reviewing the documents.”

At this stage, if not earlier, it would have been typical procedure to set up a “taint team”—comprised of people who had no involvement in the Robinson prosecution—to review the materials. Instead, as the opinion explains “Grubb did not set up a taint team.” Instead, he chose to assign a paralegal working on the prosecution “because of [her] intimate involvement with the [Robinson] case.” She later “testified that she did not record or inventory what she reviewed.”

The prosecution’s review—which again happened without any prior notice to the court or the opposition—revealed that Mr. Robinson’s lawyer had not breached the protective order. A few days after the raid on the defendant’s cell, he was able to alert his attorney, who immediately notified the court and requested the prosecution return all of his possessions. From that point, the trial court took seriously the need to figure out what happened, and why the State had failed to bring the court’s attention to its concern about the protective order.

The Trial Court Investigation into the Prosecution’s Actions

Mr. Robinson’s lawyer soon filed a motion to dismiss the indictment based on the prosecution’s illegal and unethical actions. The trial court made clear it would develop a record of what happened. It reviewed the documents and found the State indeed seized documents that should have been protected by the attorney-client privilege. Some of the notes relayed information about the defense’s trial strategy.

In anticipation of a hearing, the court ordered the State to produce discovery. Either unable to comprehend basic instructions, unwilling to do the work, or proud to obstruct the judge’s inquiry, the prosecutors’ discovery effort was abysmal. Here are a few examples:

  • The State did not identify everyone involved in the investigation of Mr. Robinson’s documents. When confronted about this, the prosecution claimed it did not know the identity of every person who had actually reviewed the information.
  • “The court also learned that the State had not properly searched and produced its emails. The court discovered this shortcoming through [the paralegal’s] testimony, where she stated that she had not searched her emails for correspondence or memoranda relevant to the review of Robinson’s documents—even though she admitted that there may have been relevant emails with Grubb and [the main investigator].”
  • “Prior to the October hearing, the State had only produced three emails, which it uncovered from individual email searches by Grubb, [the paralegal], and [the lead investigator] of their own accounts.”
  • A more thorough email search—prompted by the judge’s even more specific order for a “statewide document and email search”—eventually turned up 37 emails.
  • Even after its broader “statewide” search, the court learned that the State did not review the emails of one of the two investigators who had reviewed the defendant’s documents.

The Trial Court Dismissed the Indictment

After the evidentiary hearing, the trial court dismissed the indictment. In a thorough and thoughtful opinion, the court concluded:

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.

Remarkably, the State had argued to the court that the defendant deserved no remedy for the Sixth Amendment violation because the trial had not yet occurred. In a sensible and stinging rebuke, the trial court wrote: 

[T]he State’s position would mean that it can intentionally review a defendant’s privileged attorney-client communications at any 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.

The Delaware Supreme Court Reinstates the Indictment but Reprimands the Prosecutors

Ultimately, the Delaware Supreme Court reversed the dismissal of the indictment. However, the opinion shows it was not impressed with what the State had done at any stage of the proceedings. From a legal standpoint, the high court affirmed the lower court’s finding of a Sixth Amendment violation: “[W]here the State has deliberately invaded a defendant’s attorney-client privilege and has obtained defendant’s trial strategy information, and the defendant has suffered prejudice as a result…. [w]e affirm the Superior Court’s holding that the State violated Robinson’s Sixth Amendment rights and that he suffered actual prejudice.”

Still, finding the remedy of dismissing an indictment to be extreme, the court backpedaled. In a confusing move, it said that it would be inclined to dismiss if there was a pattern of misconduct. But it found “[a]lthough the State’s conduct here was egregious, the evidentiary record does not sufficiently establish such a pattern of misconduct.”

Here is the best distillation of the majority’s decision:

To be clear, we do not condone the State’s misconduct. But given that we must carefully balance the competing interests of protecting the constitutional rights of defendants against the competing interests of all Delaware citizens (including victims and their families) in the administration of criminal justice, we conclude that the most extreme remedy possible, namely, dismissal, was unwarranted. A remedy less severe than dismissal of Robinson’s indictment can properly be tailored to ensure that Robinson’s right to a fair trial is protected.

In an unusual and important decision, the court went on to disqualify the prosecution:

To eliminate what we perceive as a remote possibility of any taint or unfair advantage to the State, and as a sanction for the State’s misconduct, we will require the disqualification of Downs, Denney, [the paralegal], Grubb, [and the investigators] from participation in Robinson’s trial, along with anyone else who has been exposed through review, discussion, or otherwise of Robinson’s privileged materials. In addition, the State is required to destroy all trial work product developed thus far in this case. Notwithstanding the practical implications of these sanctions, this Court expects the State to proceed with appropriate dispatch given the delays that it has caused already in these proceedings.

The two justices who dissented in part took issue with the majority’s characterization of the “pattern” evidence. After all, didn’t the State’s conduct after the initial search only confirm a pattern of misbehavior in this very case? Beyond that, what faith should any court have in the ability of this prosecutor’s office to actually implement the majority’s preferred remedy? They wrote:

But this is not a case about an isolated piece of evidence that the State got improperly and could be remedied by exclusion at a new trial. This is a case where the State gained access to the defendant’s trial strategy, did so secretly, did not come clean when caught, did not exclude a key professional from the trial team until over a week after the violation, and when called to account by the Superior Court, responded in a seemingly guileful and inept manner. For these reasons, we fully understand and cannot fairly second-guess the trial judge’s view that crafting some sort of “clean team” remedy going forward would not only fail to deter the State from repeating its admittedly already repetitious behavior, but would require the court to repose confidence that the same group of people who still fail to “get it” would implement with fidelity and skill a clean team remedy.

Although the majority’s opinion didn’t go as far as it could have, it is an important declaration against prosecutorial misconduct. Perhaps the most interesting aspect of that opinion is how it plants a flag and encourages all future courts to remember what happened in this case so that any future misconduct can be identified as a pattern. (More than that, it actually requires the State to share the opinion when future allegations of similar misconduct arise.)

Make no mistake that we condemn the State’s behavior. We warn the State that any further instances of such intentional misconduct may well lead to dismissal of the case in which the misconduct occurs, in addition to other possible sanctions. We are troubled that even during this appeal, the State continued to trivialize the wrongfulness of its conduct. In the event the State again invades a defendant’s privileged materials, the State must bring to the trial judge’s attention this Opinion for the purpose of factoring in this case in determining whether the State engaged in a pattern of misconduct.

Bigger lessons?

A few more things bear mentioning. During the evidentiary hearing, one of the investigators testified that the State had conducted a similar investigation of a defendant’s jail-cell legal materials at least once before. That surfaces the logical question: how often does this stuff really happen? While it may be tempting to write this off as an anomaly, there are indications that the State may interfere with or intercept attorney-client information somewhat regularly. Consider this federal Oregon case that we covered several years ago. [UPDATE: the state bar deferred any investigation, sending the ethical complaints into the black hole of the DOJ’s notoriously inactive internal ethics monitor.] More recently, evidence has emerged that federal prosecutors in Kansas have listened in on phone calls between defense lawyers and their clients. We should not be so quick to write off the possibility that prosecutors systematically disrespect attorney-client privilege. Just think about how callous and careless the Delaware prosecutors were in handling Mr. Robinson’s case.

Lastly, one discouraging aspect of the court’s opinion is that it took a narrow view of the type of misconduct that is relevant. Rather than understanding that prosecutorial misconduct often reflects a wider culture of impunity that manifests in a variety of ways and taints the whole process, the court isolated its focus to instances in which prosecutors actually stole attorney-client privileged information. If it had stepped back just a few feet, it may have noticed the prosecutors in Delaware have done damage to defendants’ constitutional rights in other ways as well; in multiple recent cases, they have suppressed exculpatory information. Prosecutorial impunity is the source; stealing privileged information is just one head on the hydra. In our view, the only way to attack the source is to hit the State where it hurts—and force it to lose the cases it so badly wants to win. That is why we believe Mr. Robinson’s indictment should have been dismissed.

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