State v. Robinson, I.D. No. 1411017691

• Decision Date: 01 May 2018
• Docket Number: I.D. No. 1411017691
• Parties: STATE OF DELAWARE v. JACQUEZ ROBINSON
• Court: Delaware Superior Court

STATE OF DELAWARE
v.
JACQUEZ ROBINSON

I.D. No. 1411017691

SUPERIOR COURT OF THE STATE OF DELAWARE

Submitted: February 2, 2018
May 1, 2018

OPINION

Upon Defendant's Motion to Dismiss Indictment
GRANTED

Sean P. Lugg, Esq., Carolyn S. Hake, Esq., Department of Justice, Attorney for the State of Delaware

Patrick J. Collins, Esq., Collins & Associates, Attorney for Jacquez Robinson

Rocanelli, J.

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Defendant Jacquez Robinson ("Defendant") has filed a motion to dismiss on the grounds that the State violated his Sixth Amendment rights by conducting an unauthorized search of Defendant's cell that specifically targeted Defendant's attorney-client communications; by reviewing confidential communications between Defendant and his counsel; by intentionally intruding on the attorney-client relationship; and by actual disclosure of defense strategy to the prosecution. Defendant further contends that the only adequate remedy for the constitutional violation is dismissal of the indictment. The State responds that the search was permissible and/or justified, and that Defendant has not established sufficient prejudice to establish a Sixth Amendment violation or to warrant dismissal of the indictment.

INTRODUCTION

This Court issued a Memorandum Opinion and Order, which set forth the Court's rulings on the standard and scope of review for consideration of Defendant's motion to dismiss.¹ The Court conducted evidentiary hearings and an in camera review of legal documents and attorney-client communications seized from Defendant's prison cell. The parties submitted post-hearing briefs. Thereafter, the Court took Defendant's motion to dismiss under advisement.

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This is the Court's decision on Defendant's motion to dismiss. As fact-finder, the Court assessed the evidence and the credibility of witness testimony.² The Court finds that the State intentionally seized and reviewed Defendant's attorney-client communications without seeking judicial approval or oversight. The State also failed to establish a "taint team" to screen the Trial Prosecutors from the results of its investigation, and a member of the prosecution team³ learned details of Defendant's defense strategy. The Court concludes that the State's conduct violated Defendant's Sixth Amendment right to the assistance of counsel and that the State's conduct falls short of the Court's expectations for Delaware prosecutors.

Based on the Court's findings of fact, application of the legal standard, and in consideration of the State's disregard for procedural due process and the rule of law, this Court concludes that dismissal of the Indictment is necessary to remedy the State's intentional violation of Defendant's Sixth Amendment rights. 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.

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DISCUSSION

I. THE STATE'S SEIZURE, REVIEW AND RETENTION OF DEFENDANT'S LEGAL MATERIALS

A. Unauthorized Seizure, Review, and Retention of Defendant's Legal Materials

On June 30, 2017, eleven days before the scheduled July 11 trial in Defendant's Murder Case,⁴ the State seized all documents and notes from Defendant's prison cell for its review. A senior prosecutor at the Delaware Department of Justice authorized the seizure and review ("Senior Prosecutor").⁵ According to the State, the search and seizure was necessary to ascertain whether Defendant's counsel ("Defense Counsel")⁶ had violated a protective order by revealing the names of the State's witnesses to Defendant. However, the State concedes that it never provided any witness names to Defense Counsel.

The State did not apply for a search warrant in any court. The State did not provide notice in advance to Defense Counsel or to the judges assigned to the TMG Case or the Murder Case. Even after the search and seizure took place, the State did

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not disclose the search, seizure, and review of documents to the Court or to Defense Counsel.

Several days later, on July 5, 2017, Defendant informed Defense Counsel that Defendant's legal papers had been removed from his cell by Department of Correction ("DOC") officials. Defense Counsel first notified the Court by e-mail on July 5, and then sent a formal letter to the Court on July 6. Defense Counsel did not know that the Department of Justice ("DOJ") had directed the DOC to conduct the search and seizure. Defense Counsel asked the Court to enter an Order directing that all of Defendant's legal documents be returned immediately and that copies not be made or retained. The Court asked for a response from the State by noon on July 7, 2017. A formal response was filed on behalf of DOC.⁷ It was only after the Court intervened that the State made arrangements to return Defendant's legal materials to him, which were returned before the end of the day on July 7.⁸

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B. The TMG Protective Order

In criminal cases, the State is not required to produce a witness's statement to defense counsel until after the witness testifies at trial on direct examination.⁹ In addition, the Delaware Victims' Bill of Rights prohibits the disclosure of a victim's or witness's identifying information.¹⁰ However, in the interest of convenience and judicial economy, the State ordinarily provides witness statements to defense counsel before trial. To do so, the State typically utilizes a protective order that prohibits defense counsel from sharing a witness's statement or identifying information with anyone else, including the defendant.

There are two protective orders that address Defendant's pending cases. On August 24, 2016, the Court issued a Protective Order for the TMG Case ("TMG Protective Order") in advance of an October 2016 trial date. That trial was postponed and the TMG Protective Order remains in effect. On June 12, 2017, the Court issued a protective order in the Murder Case ("Murder Protective Order"). By its terms, the Murder Protective Order expired on July 6, 2017, five days prior to the trial scheduled for July 11, 2017.

The TMG Protective Order prohibited Defense Counsel from giving Defendant access to any documents containing summaries and transcripts of witness

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interviews or which contained certain identifying information for witnesses. However, the TMG Protective Order permitted Defense Counsel to discuss the "content" of any such documents with Defendant.¹¹ During the drafting process for the TMG Protective Order, Defense Counsel sought clarification from the State on her duties thereunder. Specifically, Defense Counsel asked if the State considered it a violation if she were to summarize the protected documents, leaving out any witness identifying information, and to provide those summaries to Defendant. The State responded that the provision in the TMG Protective Order allowing counsel to discuss "content" permitted Defense Counsel "to discuss/provide summaries of the materials under the [protective order]."¹² Following this clarification, Defense Counsel wrote to the State to memorialize their discussion and said, "The 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."¹³ The State never responded.

Pursuant to the TMG Protective Order, the State produced various discovery materials to Defense Counsel. However, other than one witness identified by name,

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the State never provided the names of any witnesses to Defense Counsel.¹⁴ Rather, the State identified the witnesses using letter designations and redacted the transcripts to remove any identifying information.

In March 2017, a jury trial took place for one of Defendant's co-defendants in the TMG Case. At that trial, the State identified witnesses by name in its opening statement. In addition, witnesses testified and were subject to cross examination on the record in open court.

In the beginning of May 2017, an inmate ("Informant Inmate") housed with Defendant at Sussex Correctional Institution ("SCI") wrote to the State claiming to have information relating to the Murder Case. The Lead Trial Prosecutor for the Prosecution Team interviewed the Informant Inmate on May 10, 2017. During that interview, the Informant Inmate identified Defense Counsel by her first name and suggested that she may have shown Defendant documents that were subject to a protective order.¹⁵ The Informant Inmate also told the Trial Prosecutor that Defendant attempted to use another inmate's ("Intermediate Inmate") pin number to

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call Defense Counsel regarding the protected documents. The Informant Inmate stated that a paralegal for Defense Counsel told Defendant that he could not have copies of the documents because they were protected by a protective order.¹⁶ The Informant Inmate claimed that these events took place sometime in April 2017. The only protective order in place at the time of these events was the TMG Protective Order.

The Trial Prosecutors claim that they were concerned at this time that Defense Counsel may have violated the TMG Protective Order.¹⁷ Rather than raising the concerns at this time with the Court or with Senior Prosecutor, the Trial Prosecutors initiated further investigation ("Protective Order Investigation"). On May 16, 2017, a Trial Prosecutor interviewed the Intermediate Inmate, who denied allowing anyone to use his pin number to make outgoing phone calls.

The Trial Prosecutors waited several more weeks after the interview with the Intermediate Inmate to take any additional steps in connection with its Protective Order Investigation. In June 2017, the Trial Prosecutors issued three subpoenas

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relating to their Protective Order Investigation. The first subpoena was issued on June 9, 2017...