Weatherford v. Bursey, No. 75-1510

• Court: United States Supreme Court
• Writing for the Court: WHITE
• Citation: 97 S.Ct. 837,429 U.S. 545,51 L.Ed.2d 30
• Parties: Jack M. WEATHERFORD, etc., et al., Petitioners, v. Brett Allen BURSEY
• Docket Number: No. 75-1510
• Decision Date: 22 February 1977

429 U.S. 545 97 S.Ct. 837 51 L.Ed.2d 30 Jack M. WEATHERFORD, etc., et al., Petitioners,

v.

Brett Allen BURSEY.

No. 75-1510. Argued Dec. 7, 1976. Decided Feb. 22, 1977. Syllabus

Respondent and petitioner Weatherford (hereinafter petitioner), an undercover agent, were arrested for a state criminal offense, each thereafter retaining separate counsel. Petitioner had two pretrial meetings with respondent and respondent's counsel, who had sought petitioner's presence for the purpose of securing information or suggestions as to respondent's defense. Petitioner had no discussions concerning respondent's trial strategy or the pending criminal action either with his superiors or with the prosecution. Petitioner (who had told respondent he would not be a prosecution witness) testified for the prosecution, which on the morning of the trial decided to call petitioner as a witness because he had been seen in the company of police officers and had thus lost effectiveness as an undercover agent. Respondent was convicted. After he had served his sentence, he brought this action against petitioner under 42 U.S.C. § 1983, alleging that petitioner's participation in the two meetings had deprived respondent of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments as well as his right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. The District Court found for petitioner. The Court of Appeals, without disturbing the District Court's factual findings, reversed, concluding 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," and that the concealment of petitioner's undercover status lulled respondent into a false sense of security, interfering with his trial preparations and denying him due process of law under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Held:

1. Respondent was not deprived of his right to counsel under the Sixth Amendment, which does not establish a per se rule forbidding an undercover agent to meet with a defendant's counsel. Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26; O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94; Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, distinguished. Pp. 550-559.

Page 546

(a) As long as the information possessed by petitioner about the two meetings remained uncommunicated, he posed no threat to respondent's Sixth Amendment rights. Pp. 554-557.

(b) Petitioner went to the meetings, not to spy, but because he was asked by respondent and his counsel and because the State was interested in maintaining petitioner's status as an informant and not arousing respondent's suspicions. Adoption of the Court of Appeals' per se rule would for all practical purposes have required petitioner to unmask himself. Pp. 557-558.

2. The Due Process Clause does not require that the prosecution must reveal before trial the names of undercover agents or other witnesses who will testify unfavorably to the defense. Pp. 559-561.

(a) There is no constitutional right to discovery in a criminal case, and Brady, supra, did not create one. P. 559.

(b) That petitioner not only concealed his identity but represented that he would not be a prosecution witness did not deny respondent a right to a fair trial. The misrepresentation was not deliberate, and there is no constitutional difference between the surprise testimony of an informer who is not suspected and therefore is not asked about testifying for the prosecution and the informer who, like petitioner, is asked by the defendant but denies that he will testify. P. 560.

(c) Though the Court of Appeals also suggested that petitioner's continued duplicity denied respondent the opportunity to plea bargain, there is no constitutional right to plea bargain. Pp. 560-561.

528 F.2d 483, reversed.

Joseph Crouch Coleman, Grand Junction, Colo., for petitioners.

Andrew L. Frey, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.

Laughlin McDonald, Atlanta, Ga., for respondent.

Page 547

Mr. Justice WHITE delivered the opinion of the Court.

The issue here is whether in the circumstances present in this case the conduct of an undercover agent for a state law enforcement agency deprived respondent Bursey of his right to the effective assistance of counsel guaranteed him by the Sixth and Fourteenth Amendments of the United States Constitution or deprived him of due process of law in violation of the Fourteenth Amendment.

I

This case began when respondent Bursey filed suit under 42 U.S.C. § 1983 against petitioners Weatherford and Strom, respectively an undercover agent for and the head of the South Carolina State Law Enforcement Division, asserting that the defendants had deprived him of certain constitutional rights. The case was tried without a jury. The following facts are taken from the District Court's findings, which were not disturbed by the Court of Appeals.

During the early morning hours of March 20, 1970, Bursey and Weatherford, along with two others, vandalized the offices of the Richland County Selective Service in Columbia, S. C. Police were advised of the incident by Weatherford, who, in order to maintain his undercover status and his capability of working on other current matters in that capacity, was arrested and charged along with Bursey. Weatherford was immediately released on bond and, continuing the masquerade, retained an attorney, Frank Taylor, Sr. Bursey, who was later released on bond, retained his own counsel, C. Rauch Wise.

On two occasions thereafter and prior to trial, Weatherford met with Bursey and Wise, and the approaching trial

Page 548

was discussed. With respect to these meetings, the District Court found as follows:

"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. He was brought into the meetings by the plaintiff and plaintiff's attorney in an effort to obtain information, ideas or suggestions as to the plaintiff's defense. From the beginning Weatherford advised plaintiff and plaintiff's attorney that Weatherford would obtain a severance of his case from that of the plaintiff. This severance was to be upon the ground that Weatherford might be prejudiced in going to trial with Bursey as a codefendant, because of Bursey's reputation and participation in other activities which had been covered by the news media. 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. At those meetings between plaintiff, plaintiff's attorney and defendant Weatherford the plaintiff and his attorney raised the question of a possible informer being used to prove the case, but they never asked Weatherford if he were an informer and he never specifically denied being an informer, since he was never asked or accused." App. 248-249.

At no time did Weatherford discuss with or pass on to his superiors or to the prosecuting attorney or any of the attorney's staff "any details or information regarding the plaintiff's trial plans, strategy, or anything having to do with the criminal action pending against plaintiff." Id., at 249. Until the

Page 549

day of trial the prosecuting attorney did not plan to use Weatherford as a witness. Consequently, until then, Weatherford had not expected to be a witness and had anticipated continuing his undercover work. However, Weatherford had lost some of his effectiveness as an agent in the weeks preceding trial because he had been seen in the company of police officers, and he was called for the prosecution. He testified as to his undercover activities and gave an eyewitness account of the events of March 20, 1970. Bursey took the stand, was convicted, and then disappeared until apprehended some two years later, at which time he was incarcerated and forced to serve his 18-month sentence.

Bursey then began this § 1983 action, alleging that Weatherford had communicated to his superiors and prosecuting officials the defense strategies and plans which he had learned at his meetings with Bursey and Wise, thereby depriving Bursey of the effective assistance of counsel to which he was entitled under the Sixth and Fourteenth Amendments as well as of his right to a fair trial guaranteed him by the Due Process Clause of the Fourteenth Amendment. The District Court found for the defendants in all respects and entered judgment accordingly.

The Court of Appeals for the Fourth Circuit reversed, 528 F.2d 483 (1975), concluding that "on the facts as found by the district court Bursey's rights to effective assistance of counsel and a fair trial were violated." Id., at 486. The Court of Appeals held that "whenever the prosecution knowingly arranges and permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial." Ibid. That the intrusion occurred in order to prevent revealing Weatherford's identity as an undercover agent was immaterial. The Court of Appeals thought that Weatherford was himself "a member of the prosecution," id., at 487, and that therefore it was also immaterial that he had not informed other

Page 550

officials about what was said or done in the two meetings with Bursey and Wise.

In addition, the Court of Appeals concluded that Bursey had been denied due process of law under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by concealment of Weatherford's identity...