Bursey v. Weatherford, 74--2242

Citation528 F.2d 483
Decision Date02 December 1975
Docket NumberNo. 74--2242,74--2242
PartiesBrett Allen BURSEY, Appellant, v. Jack M. WEATHERFORD, Individually and in his official capacity as an agent of the South Carolina State Law Enforcement Division, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Laughlin McDonald, Atlanta, Ga. (Neil Bradley, Atlanta, Ga., and Herbert E. Buhl, III, Columbia, S.C., on brief), for appellant.

Joseph C. Coleman, Deputy Atty. Gen. of S.C. (Daniel R. McLeod, Atty. Gen. of S.C., on brief), for appellees.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.

CRAVEN, Circuit Judge:

Appellant Brett Allen Bursey brought this suit under 42 U.S.C. § 1983 seeking damages for alleged violations under color of state law of his constitutional rights. He named as defendants Jack Weatherford, an informant-agent of the South Carolina State Law Enforcement Division (SLED), J. P. Strom, Chief of SLED, and other unknown SLED agents, all in both their individual and representative capacities. Bursey claimed, inter alia, violation of his rights to a fair trial and to effective assistance of counsel secured to him under the fifth, sixth, and fourteenth amendments, as a result of intrusion by Weatherford into conferences between him and his attorney preceding his trial for malicious destruction of property.

The district court, hearing this case without a jury, entered judgment against Bursey. It held that Weatherford's conduct did not violate appellant's constitutional rights. We disagree, reverse, and remand for further proceedings.

I.

On July 27, 1970, Bursey was tried and convicted of the crime of malicious destruction of property. This charge arose out of an incident during the early morning hours of March 20, 1970, during which a brick was thrown through the window of the Richland County Selective Service office in Columbia, South Carolina, and red paint was sprayed and splattered on the outside and inside of the building. Bursey was sentenced to 18 months in prison and served his time. 1

Jack Weatherford, an informant employed by the South Carolina State Law Enforcement Division (SLED), participated in damaging the draft board property and then arranged his own and Bursey's arrest. To maintain his 'cover,' Weatherford was ostensibly indicted along with Bursey for the crime of malicious destruction of property, and arrangements were made by Solicitor Foard for his apparent retention of a well-known local attorney as his defense counsel. The purpose of it all was to convince Bursey and others that Weatherford was in bad trouble so that he could maintain his appearance as an apparent codefendant while actually working for Strom and Foard. While there is no evidence of Strom's direct personal supervision of these machinations, it is clear from his testimony that he expected Weatherford to continue working as an undercover agent on the University of South Carolina campus and that he entrusted the details of the operation to Solicitor Foard.

During this period after the indictment of Bursey but before his trial, on at least two occasions Weatherford was present at meetings between Bursey and his attorney, C. Rauch Wise, at which the coming trial was discussed. Appellees urge that the intrusion was not deliberate but, instead, was simply additional necessary 'cover.' Since Bursey thought Weatherford was a friend and partner in crime, the latter could not avoid association without endangering revelation of his law enforcement role. For that reason only, appellees insist, Weatherford intruded upon the privacy of counseling. But SLED encountered bad luck, 2 and soon it became evident that Weatherford could no longer work effectively as an undercover agent. Upon the request of Solicitor Foard, Strom agreed to allow Weatherford to testify against Bursey, a turn of events which Strom testified he did not anticipate at the time of Bursey's arrest. Doubtless surprised and dismayed, Bursey was convicted on Weatherford's eyewitness testimony.

II.

The district judge made the following findings of fact which are particularly relevant to the issues presented on appeal:

(1.) On two occasions following the employment of plaintiff's attorney, said attorney, the plaintiff and the defendant Weatherford met and the approaching trial was discussed. On neither of these occasions did the defendant Weatherford seek information from the plaintiff or his attorney, and on neither occasion did he initiate or ask for the meeting. . . .

(2.) That following the various meetings with the plaintiff and/or plaintiff's attorney nor at any time did the defendant Weatherford discuss with or pass on to defendant Strom, any agents of SLED, or to Solicitor John Foard and/or any of his staff any details or information regarding the plaintiff's trial plans, strategy or anything having to do with the criminal action pending against plaintiff. . . .

(3.) From the beginning Weatherford advised plaintiff and plaintiff's attorney that Weatherford would obtain a severance of his case from that of the plaintiff. . . . On no occasion did Bursey or his attorney question the granting of a severance nor did they seem to concern themselves with whether the prosecutor would consent to a severance; although such consent is quite unusual where codefendants are charged with the same crime and proof will be from the same witnesses based upon identical facts. . . .

On these facts the district judge concluded that Bursey's constitutional rights had not been violated. He held in effect that: (1) there had been no 'gross' intrusion upon the confidential relationship between Bursey and his lawyer because the participation in these conferences by Weatherford was not for the purpose of obtaining information concerning trial strategy, etc.; (2) Bursey had not been prejudiced as a result of Weatherford's presence during these conferences because their content had not been communicated to Solicitor Foard or Strom; and (3) Weatherford's actions, and especially his statements concerning severance of his trial, should 'have put them (Bursey and his attorney) on notice that Weatherford might be an agent.'

We disagree and conclude that on the facts as fould by the district court Bursey's rights to effective assistance of counsel and a fair trial were violated.

III. Effective Assistance of Counsel

Ours is an adversary system of justice. Deliberately planting an informer in the council of trial preparation, or an electronic monitor, is, of course, a 'gross' intrusion upon the confidentiality of the lawyer-client relationship protected by the sixth amendment. The Supreme Court has said so:

Both of those cases 3 dealt with government intrusion of the grossest kind upon the confidential relationship between the defendant and his counsel.

Hoffa v. United States, 385 U.S. 293, 306, 87 S.Ct. 408, 416, 17 L.Ed.2d 374 (1966) (footnote added). But we think it does not follow, as appellees urge, that the sixth amendment is violated only where there has been a 'gross' intrusion into the attorney-client relationship. We agree with the Third Circuit that it is a waste of time to undertake to decide whether an intrusion may be characterized as 'gross,' 4 and that instead we should decide whether it is deliberate or inadvertent. Here it was not inadvertent but was knowingly permitted by the prosecution. That the intrusion was not for the purpose of obtaining information but was to maintain Weatherford's cover is, we think, of no consequence. We conclude that whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.

We think Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967), read together, establish such a per se rule. In O'Brien, a defendant's conversation concerning his forthcoming trial was monitored, but the conversation was not mentioned in any FBI report, nor were its contents communicated to attorneys for the Department of Justice, including those who prosecuted the case. Nevertheless, the Supreme Court summarily vacated the judgment below and remanded for a new trial. 5

We put aside cases such as United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974), and United States v. Mosca, 475 F.2d 1052 (2d Cir.), cert. denied, 412 U.S. 948, 93 S.Ct. 3003, 37 L.Ed.2d 1001 (1973), as clearly inapplicable. As the court in Rosner said, the fact situation there was wholly different from our situation--that of the 'dummy defendant, the ultimate in the chicanery of unlawful intrusion . . ..' Rosner, supra at 1227.

In the context of a civil suit, our holding that Bursey's sixth amendment right to counsel was violated sustains his suit irrespective of any showing of substantial prejudice to his defense. Via v. Cliff, 470 F.2d 271, 275 (3d Cir. 1972). However, prejudice may be very relevant to the issue of damages, 6 and we note the record establishes that Weatherford, fully acquainted with Bursey's trial strategy, talked with Solicitor Foard, who prosecuted the case, before trial and, of course, testified against Bursey. On these facts we find him to have been a member of the prosecution and further note that in an adversary system learning the plans of one's opponent, as Weatherford did, is generally thought to be worthwhile. Indeed, espionage rests upon such a premise.

Fair Trial

We also hold that Bursey's rights to a fair trial were violated by the government's countenancing of Weatherford's role in this case. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady the Court held that the prosecution had a duty under the due process clause to insure that 'criminal trials are fair' by disclosing evidence favorable to the...

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