State v. Robinson, 041619 DESC, 232, 2018

Docket Nº232, 2018
Party NameSTATE OF DELAWARE, Defendant-Below, Appellant, v. JACQUEZ ROBINSON, Plaintiff-Below, Appellee.
AttorneyElizabeth R. McFarlan, Esquire, Department of Justice, Wilmington, Delaware for Appellant. Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware for Appellee.
Judge PanelBefore STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices. Constituting the Court en Banc. STRINE, Chief Justice, concurring in part, dissenting in part, with TRAYNOR, Justice, joining:
Case DateApril 16, 2019
CourtSupreme Court of Delaware

STATE OF DELAWARE, Defendant-Below, Appellant,


JACQUEZ ROBINSON, Plaintiff-Below, Appellee.

No. 232, 2018

Supreme Court of Delaware

April 16, 2019

Submitted: February 20, 2019

Superior Court of the State of Delaware Cr. ID. No. 1411017691 A&B (N)

Elizabeth R. McFarlan, Esquire, Department of Justice, Wilmington, Delaware for Appellant.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware for Appellee.

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices. Constituting the Court en Banc.




In this case, we consider whether the State violated Jacquez Robinson's Sixth Amendment right to the effective assistance of counsel, and if we agree with the trial court that it did, whether the trial court erred in dismissing his indictment for first degree murder. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."1 This right is "indispensable to the fair administration of our adversarial system of criminal justice."2 It "safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding."3 When the State deliberately invades that right, the integrity of the adversarial process is threatened.

On March 2, 2015, the State indicted Robinson on charges for his alleged involvement in separate shooting incidents on November 25 and 26, 2014, which left two people injured and one person dead.4 Charges related to the alleged assault on November 25th (the "Assault Case") were severed from the charges related to the alleged murder on November 26th (the "Murder Case"). The Superior Court scheduled the Murder Case for trial on July 11, 2017, but the court did not schedule the Assault Case for trial. Additionally, the State separately indicted Robinson in a multi-defendant action concerning his alleged participation in the "Touch Money Gang" (the "TMG Case"). That case had been scheduled for trial in October 2016.5 Natalie Woloshin served as Robinson's counsel in all three cases.

On August 24, 2016, the Superior Court entered a protective order in the TMG Case (the "Protective Order").6 The Protective Order prohibited Woloshin from giving Robinson any documents containing summaries and transcripts of witness interviews or documents containing identifying witness information. However, the Protective Order also permitted Woloshin to discuss the "content" of those documents with Robinson. Woloshin sought clarification from the State about her ability to discuss "content" on August 4, 2016. The State explained that it allowed her "to discuss/provide summaries of the materials under the protective order."7 After another discussion between Woloshin and the State on August 22, 2016, Woloshin wrote to the State to memorialize her understanding of the Protective Order boundaries: "[t]he State takes the position that there is no violation of the protective order by me sending summaries of reports and transcripts of statements of witnesses to my client so long as no identifying information is provided in the summaries. If this is not accurate, please let me know."8 The State did not respond.

Due to a May 2017 tip from an inmate housed in the same facility as Robinson, the two prosecutors assigned to the Murder Case, John Downs and Mark Denney, became concerned that Woloshin had violated the Protective Order. On June 30, 2017, without notifying Woloshin, 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 Woloshin and personal notes containing trial strategy. When Woloshin learned of the search from Robinson nearly a week later, she notified the court and filed a motion to dismiss on July 7, 2017, arguing that the State had violated Robinson's Sixth Amendment right to assistance of counsel.

The Superior Court issued a Memorandum Opinion on September 19, 2017 (the "September 2017 Opinion"), setting forth the basic facts and legal framework for establishing a Sixth Amendment violation in this context and calling for an in camera review of Robinson's documents.[9] The court then held hearings on October 25, 2017 and November 21, 2017, where the court heard testimony from most of the individuals involved in the June 30, 2017 search and seizure.10 In its May 1, 2018 opinion (the "May 2018 Opinion "), the Superior Court held that the State had violated Robinson's Sixth Amendment right to the assistance of counsel, and it granted the motion to dismiss his indictment.11 The State appealed.


Factual Background12

In May 2017, an inmate incarcerated with Robinson wrote to the State claiming to have information relevant to the Murder Case. Downs interviewed the inmate on May 10, 2017. The informant-inmate stated that sometime in April 2017, Woloshin may have shown Robinson documents that were subject to the Protective Order. He also claimed that Robinson had used another inmate's pin number to call Woloshin regarding the protected documents. As a result, Downs and Denney became concerned that Woloshin may have violated the Protective Order. On May 16, 2017, Downs interviewed the inmate whose pin number had allegedly been stolen by Robinson to make phone calls, but the inmate denied allowing anyone to use his pin number for outgoing calls.

Beginning on June 9, 2017, Downs issued a series of subpoenas for Robinson's phone records. Each subpoena sought "any and all available approved phone number lists, outgoing call log entries and conversations."13 Sometime before June 28, 2017, the Delaware Department of Corrections ("DOC") produced recordings of Robinson's phone calls to the Delaware Department of Justice ("DOJ"). Thomas Dempsey, a DOJ investigator, listened to the recordings of Robinson's phone calls to determine if Robinson possessed material in violation of the Protective Order. The phone calls consisted of Robinson's conversations with his father, brother, and mother, and with three other individuals.14 Dempsey provided transcripts of those calls to Downs and Denney on June 28, 2017. Additionally, the call logs revealed that someone had used the inmate's pin number to call Woloshin's office on three occasions.15

Until late June 2017, Downs and Denney coordinated the Protective Order investigation without establishing a "taint team."16 Specifically, they "conducted interviews, issued subpoenas, listened to phone calls, and reviewed call logs."17 It was not until June 28, 2017-less than two weeks before the July 11 murder trial-that Denney and Downs alerted the Chief Prosecutor for New Castle County, Joseph Grubb, of their concerns. However, they did not inform Grubb that the State had previously clarified the parameters of the Protective Order for Woloshin. The same day that Downs and Denney raised their concerns, Grubb appointed Chief Special Investigator John Ciritella to coordinate the search of Robinson's cell.18 Grubb and Downs met with Ciritella on June 28 or 29, 2017, where they instructed him to look for any documents in Robinson's cell that might suggest a violation of the Protective Order.[19] But they did not provide instructions regarding the attorney-client privilege or even limit the search to documents concerning witnesses.20 In fact, Ciritella "understood that he was looking for attorney-client communications."21

On June 30, 2017, without contacting Woloshin, applying for a search warrant, or seeking judicial approval, Ciritella instructed the DOC to search Robinson's cell. That same day, DOC officers seized all documents and notes from Robinson's cell, placed them in garbage bags, and brought them to Ciritella in a conference room at the Sussex Correctional Institute.22 Ciritella testified that, after emptying the bags onto the conference room table, he divided the pile of documents seized from Robinson's cell with Keith Marvel, a State investigator based in Sussex County, whom Ciritella had enlisted to help review Robinson's documents.23 Marvel, like Ciritella, did not receive any training on the attorney-client privilege, nor did he even know that the search involved a potential protective order violation. According to Marvel, Ciritella informed him that they were looking for "written communication from [Woloshin's] office that w[ere] in the cell."24 Marvel also testified that "[a]nything that had a header of an attorney's office or was in an envelope of an attorney's office" is what he considered pertinent, which he then flagged for Ciritella's review.25 Ciritella and Marvel testified that they kept virtually no record of the contents of the seized documents or how they went about reviewing the documents.26

Ciritella took "twelve manila envelopes and five letter-sized envelopes that all bore Defense Counsel's letterhead, as well as a larger envelope that contained a federal transcript and pages of Defendant's handwritten notes, and brought them back to the DOJ in Wilmington for further review."27 At the DOJ, Grubb did not set up a taint team at this point to review the seized documents, but instead selected Jamie Prater to review them. Prater testified that Grubb did not instruct her regarding what to review and she was not instructed by anyone to avoid privileged material.28

Prater, a paralegal assigned to the Murder and TMG Cases, was integral to Robinson's prosecution team. According to Downs, she "controlled the paperwork flow," "kept record of what was sent out," "would redact the statements that we wanted redacted," and "would prepare discovery as it would go out, and present that to us to be sent to defense counsel."[29]...

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