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Abstract
The Supreme Court in Weatherford v. Bursey in 1977 assumed without deciding that the Sixth Amendment protects criminal defendants’ right to communicate confidentially with their attorneys. It then held that, if the right exists, it is not violated unless the government intrusion on those confidential communications prejudiced the defendant or created a substantial threat of prejudice. The Weatherford opinion speculated about a variety of related issues, such as the government’s intent, legitimate justifications for some intrusion, and the like. State and lower federal courts have struggled to understand the decision’s implications. The Supreme Court can and should clear up much of this confusion by granting certiorari in a suitable case and holding, consistent with its decision in United States v. Gonzalez-Lopez in 2006, that the Sixth Amendment right to counsel includes the right to confidential attorney-client communications. This right to confidential attorney-client communications should extend at least as far as the attorney-client privilege and proving a violation should not require a showing a prejudice.
“In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.” – U.S. Const. amend. VI.
Introduction
The United States Supreme Court has never decided whether the Sixth Amendment right to counsel includes the right to confidential attorney-client communications. In Weatherford v. Bursey, the Court took up a Sixth Amendment claim based on an alleged violation of the attorney-client privilege, but held there could be no violation of the right to counsel because the client’s criminal defense had not been prejudiced.[1] Post-Weatherford doctrinal developments have transformed the decision into a mayhem-inducing “zombie precedent.”[2]
The Supreme Court should take a suitable case[3] and expressly overrule Weatherford. Specifically, the Supreme Court should hold that a violation of the Sixth Amendment is complete the moment the government wrongfully accesses or obtains privileged attorney-client communications, regardless of whether the defendant’s case was prejudiced. This holding would increase analytical clarity, but could also expand the liability[4] of police, prison officials, and prosecutors under 42 U.S.C. § 1983.[5] At the same time, it would undermine the rationale of some courts that have extended Sixth Amendment jurisprudence to protect confidential communications with defense experts.[6] It could pose special problems in the military context;[7] “respark” the national security debates about government power and individual privacy that gripped the country after 9/11;[8] and threaten prosecutors’ increased use of “taint teams” to allow the government to seize privileged documents now and try to protect the attorney-client privilege later.[9] More importantly, courts may use their remedial authority under United States v. Morrison to go beyond merely excluding privileged materials from trials and hearings.[10]
The Court need not decide whether government intrusions must be intentional to be wrongful, whether there is any place for a presumption of prejudice, or how to weigh prejudice when fashioning a remedy. Instead, it only needs to (1) hold that the Sixth Amendment protects privileged attorney-client communications and (2) clarify that prejudice is not an essential element of a violation of the Sixth Amendment right to confidential attorney-client communications.
I. Importance of Sixth Amendment Protections for Attorney-Client Communications
My first impression of this issue was that it was nuanced, interesting, and obscure—raised only when the police illegally tap phones or read private emails[11] or accidentally record private jailhouse meetings between inmates and their attorneys,[12] or of course, as in Weatherford, the equally rare case where an informant takes part in a criminal defendant’s trial strategy meetings.[13] However, the published decisions are remarkably varied. These are some of the situations in which a nonfrivolous Sixth Amendment confidential communications claim can be raised:
Prison officials seize a prisoner’s papers either during (1) a search following the discovery of an escape plan in which the defendant, also an inmate, was not involved;[14] (2) a lawful search of the prisoner’s cell pursuant to a search warrant where the papers were written in a foreign language and the searchers did not realize the papers were privileged;[15] or (3) a deliberate and unlawful search of a prisoner’s cell resulting in the knowing seizure of privileged documents.[16]
Prison officials open and read a prisoner’s legal mail relating to criminal matters.[17]
Prison officials, citing COVID-related risks, restrict the ability of inmates and their attorneys to confer confidentially or fail to facilitate an adequate number of confidential meetings between inmates and their attorneys.[18]
An informant learns confidential information and: (1) reveals the information to preserve his cover as an informant and prevent retaliation;[19] (2) the alleged informant is the defendant’s spouse;[20] (3) a police officer assigned to observe the chain of custody of a piece of evidence improperly observes and reports on the defense expert’s confidential evaluation of the evidence;[21] or (4) the informant betrays a co-defendant.[22]
Law enforcement officials seize documents they know are privileged but use a “filter team” or “taint team” to sort through the documents and provide the prosecution only with the non-privileged ones. However, some privileged documents are provided to the prosecutorial team despite the filter team’s precautions.[26]
One or more lawyers hold privileged documents that are the subject of a subpoena and attempt to quash the subpoena.[29]
Co-defendants who do not speak English are provided with different lawyers but with the same interpreter to communicate with their respective lawyers.[30]
A court orders a defense attorney to provide the prosecution with the report of a defense expert.[31]
A prisoner claims that defense counsel was ineffective for failing to raise one of the arguments listed above.[32]
Further, here are some examples of situations actually encountered by American military lawyers:
“A squadron commander wants to know if a member of her unit visited the Area Defense Counsel (ADC) for advice.”[33]
“A doctor suspected of malpractice thinks the base claims officer is ‘his lawyer’ and should keep his confidences.”[34]
“A legal assistance client comes to the base law center to consult about a divorce and makes criminal admissions to his attorney about abusing his wife.”[35]
“A Marine sees a defense counsel for advice on nonjudicial punishment offered under Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL)—during the consultation, he tells the attorney he is being sought in connection with an ATM card theft. He is later prosecuted by the same counsel for that theft.”[36]
“The Air Force Office of Special Investigations (AFOSI) seizes an Air Force officer’s home computer—he demands it back, claiming it contains privileged documents prepared at the request of his attorney.”[37]
“A wing commander wants to pursue a clearly illegal course of action and tells his staff judge advocate (SJA) he is ‘going around these stupid regulations to make the “right thing” happen.’”[38]
“A trial counsel wants to compel an ADC to testify about an AWOL client’s whereabouts.”[39]
“An accused marks his incriminating financial files ‘attorney-client privilege’ and hides them in his automobile. AFOSI finds and seizes the files anyway.”[40]
[1] See 429 U.S. 545, 554 (1977).
[2] Crowell v. Knowles, 483 F. Supp. 2d 925, 931 (D. Ariz. 2007) (“The cases thus present a tale of zombie precedent. A rule definitively extinguished by statutory amendment in 1989 continues to prowl, repeatedly re-animated by mistaken citation and dicta.”). See Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring) (“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again. . . .”).
[3] The Court recently granted certiorari and heard oral arguments in a case addressing the scope of the federal attorney-client privilege, but then dismissed the case as improvidently granted. In re Grand Jury, No. 21-1397 (U.S. Jan. 23, 2023) (slip op.). First, it is important to note that none of the briefs and none of the oral advocates raised the Sixth Amendment as a constitutional basis for the privilege or as a justification for the scope of the privilege. See, e.g., Brief for Petitioner, In re Grand Jury, 598 U.S. (2023) (No. 21-1397); Oral Argument, In Re Grand Jury, 598 U.S. (2023) (No. 21-1397), https://www.supremecourt.gov/oral_arguments/audio/2022/21-1397. Second, there are many factors that go into the Court’s decision to take a case, and sometimes it grants one only to realize later that the case is “not the right vehicle” for resolving the significant legal issue the case raises. Stephen Gillers, A “DIG” on attorney-client privilege: Why the court decided not to decide In re Grand Jury, SCOTUSBlog (Jan. 25, 2023, 9:30 AM), https://www.scotusblog.com/2023/01/a-dig-on-attorney-client-privilege-why-the-court-decided-not-to-decide-in-re-grand-jury/.
[4] The Fourth Amendment is currently the primary avenue for criminal defendants to seek redress for the harms that result from unlawful intrusions into attorney-client communications, and expanding Sixth Amendment protections would obviously expand that liability. See LeEllen Coacher, Permitting Systems Protection Monitoring: When the Government Can Look and What It Can See, 46 A.F.L. Rev. 155, 185 (1999); Eric D. McArthur, Comment, The Search and Seizure of Privileged Attorney-Client Communications, 72 U. Chic. L. Rev. 729, 732–34 (2005).
[5] See Robert J. Anello, Justice Under Attack: The Federal Government’s Assault on the Attorney-Client Privilege, 1 Cardozo Pub. L. Pol’y & Ethics J. 1, 6 (2003).
[6] See Hutchinson v. People, 742 P.2d 875, 882 (Colo. 1987) (en banc) (“We believe the confidentiality and loyalty of expert consultants traditionally enjoyed by defendants and defense counsel is a crucial element in the effective legal representation of the defendant. A relationship of trust permits the defendant, counsel and the expert to engage in a full and frank interchange, affording counsel an accurate and honest assessment of the defendant’s case. Without such a relationship, the assistance of the expert, and thus defense counsel, is likely to be ineffective.”).
[7] See Coacher, supra note 4, at 155 (“The need to ensure governmental systems are being used only for authorized purposes must be balanced against the need to reocngize the protected nature of certain types of communications.”); Norman K. Thompson & Joshua E. Kastenberg, The Attorney Client Privilege: Practical Military Applications of a Professional Core Value, 49 A.F.L. Rev. 1, 1–2 (2000).
[8] See Avidan Y. Cover, Note, A Rule Unfit for All Seasons: Monitoring Attorney-Client Communications Violates Privilege and the Sixth Amendment, 87 Cornell L. Rev. 1233, 1234 (2002) (citing contemporary news sources); Heidi Boghosian, Taint Teams and Firewalls: Thin Armor for Attorney-Client Privilege, 1 Cardozo Pub. L. Pol’y & Ethics J. 15 (2003).
[9] See John E. Davis, Note, Law Office Searches: The Assault on Confidentiality and the Adversary System, 33 Am. Crim. L. Rev. 1251, 1259 (1996).
[10] See United States v. Morrison, 449 U.S. 361, 364 (1981) (holding that courts must fashion remedies tailored to redress the harm of a particular constitutional violation or category of constitutional violations); Anello, supra note 5, at 6; Martin R. Gardner, The Right to be Free from Uncounseled Interrogation: A Sixth Amendment Doctrine in Search of a Rationale, 63 Baylor L. Rev. 80, 95–96 (2011) (arguing it could also allow courts to take a more restrictive approach to remedies).
[11] See State v. Matera, 401 So. 2d 1361 (Fla. Dist. Ct. App. 1981); Morrow v. Superior Ct., 36 Cal. Rptr. 2d 210, 213, 216 (Cal. Ct. App. 1994).
[12] See United States v. Jenkins, 178 F.3d 1287 (4th Cir. 1999) (unpublished table decision).
[13] Weatherford v. Bursey, 429 U.S. 545, 548 (1977).
[14] United States v. Clark, 319 F. App’x 395, 398–99 (6th Cir. 2009); Bishop v. Rose, 701 F.2d 1150, 1151 (6th Cir. 1983).
[15] Gheorghiu v. Commonwealth, 54 Va. App. 645, 653–54 (2009), rev’d in part on other grounds, Gheorghiu v. Commonwealth, 280 Va. 678 (2010).
[16] State v. Robinson, 209 A.3d 25, 29–31 (Del. 2019).
[17] Mangiaracina v. Penzone, 849 F.3d 1191, 1193–1195 (9th Cir. 2017) (citations omitted); Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017) (holding that the First Amendment protects the privacy of civil legal mail).
[18] Mary Yukovich, Comment, Deprivation of the Right to Counsel for Federal Pretrial Detainees During the 2019 Novel Coronavirus Pandemic, 54 Univ. Ill. Chic. L. Rev. 695, 706–07, 712–18 (2021).
[19] United States v. Mastroianni, 749 F.2d 900, 905–06 (1st Cir. 1984).
[20] United States v. Dien, 609 F.2d 1038, 1043 (2d Cir. 1979).
[21] Siehl v. City of Johnstown, 365 F. Supp. 3d 587, 592–93, 603 (W.D. Pa. 2019).
[22] United States v. Melvin, 650 F.2d 641, 643, 645–46 (5th Cir. Unit B July 1981).
[23] Briggs v. Goodwin, 698 F.2d 486, 494–95 (D.C. Cir. 1983) (analyzing a Bivens claim for Sixth Amendment claim based on a false denial by the prosecutor in open court that a co–defendant was a government informant), vacated on other grounds, 712 F.2d 1444 (D.C. Cir. 1983) (per curiam); Morrow v. Super. Ct., 36 Cal. Rptr. 2d 210, 213, 216 (Cal. Ct. App. 1994).
[24] See United States v. Jenkins, 178 F.3d 1287 (4th Cir. 1999) (unpublished table decision).
[25] People v. Zapien, 846 P.2d 704, 736–37 (Cal. 1993) (en banc).
[26] State v. Kosuda-Bigazzi, 250 A.3d 617, 623–24 (Conn. 2020). See also ABA Task Force on the Attorney-Client Privilege, Report of the American Bar Association’s Task Force on the Attorney-Client Privilege, 60 Bus. Law. 1029, 1043 (2005) [hereinafter Attorney-Client Privilege Task Force Report]. Of course, filter team conduct can be challenged under the Sixth Amendment right to counsel only to the extent that the conduct occurred after the right to counsel attached. United States v. Scarfo, 41 F.4th 136, 173 (3d Cir. 2022).
[27] United States v. Nelson, 732 F.3d 504, 518 (5th Cir. 2013).
[28] United States v. Eniola, 893 F.2d 383, 384 (D.C. Cir. 1990).
[29] In re Grand Jury Proceedings, 896 F.2d 1267, 1268–69 (11th Cir. 1990) (per curiam).
[30] State v. Jiminez-Salazar, No. 1 CA–CR 10–0100, 2011 WL 940496, at *2–3 (Ariz. Ct. App. Mar. 17, 2011).
[31] People v. Spiezer, 735 N.E.2d 1017, 1018 (Ill. App. Ct. 2000). See also Hutchinson v. People, 742 P.2d 875, 881 (Colo. 1987) (en banc) (“For that reason, we cannot sanction the prosecution’s decision in this case to offer the defense’s handwriting expert as a witness in its case-in-chief. Absent compelling justification or waiver, we believe that such a practice violates a defendant’s right to effective assistance of counsel.”). But see Gray v. Dist. Ct., 884 P.2d 286, 294–95 (Colo. 1994) (en banc) (declining to extend Hutchinson to defense-retained psychiatric experts “on the limited issue of insanity or impaired mental condition”); Lanari v. People, 827 P.2d 495 (Colo. 1992) (en banc) (holding that a defendant’s statements to a defense-retained psychiatric expert could be used at trial for impeachment).
[32] Macomber v. State, No. 124,000, 2022 WL 2112636, at *7 (Kan. Ct. App. June 10, 2022) (per curiam) (unpublished table decision).
[33] Thompson & Kastenberg, supra note 7, at 1.
[34] Id.
[35] Id.
[36] Id.
[37] Id. at 1–2.
[38] Id. at 2.
[39] Id.
[40] Id.