872 N.W.2d 777
Neb.2016Background
- Defendant Tyler C. Bain was convicted by a jury of kidnapping (Class IA), first-degree sexual assault, second-degree assault, and terroristic threats and sentenced to life for kidnapping plus concurrent terms for other counts.
- Early in the case, Bain communicated confidential trial strategy to retained counsel Rodney Palmer; those materials later came into the possession of successive prosecutors/offices (county attorney, Attorney General, and multiple special prosecutors) during transfers and withdrawals.
- Multiple prosecutors reviewed or had access to documents they believed contained Bain’s privileged communications; some prosecutors withdrew upon recognizing the privileged material, and the trial court directed sorting and sealing procedures rather than holding an evidentiary hearing.
- A later-appointed special prosecutor (John Marsh) tried the case; the record does not contain the privileged communications and the trial court never held a hearing to assess prejudice or to require the State to prove nonuse.
- Bain argued on appeal that the State’s possession of his confidential trial strategy violated his Sixth Amendment right to counsel and that the trial court’s sorting/removal procedure was inadequate; the Nebraska Supreme Court vacated his convictions and reversed.
Issues
| Issue | Bain’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether disclosure of Bain’s confidential trial strategy to prosecutors created a presumption of prejudice under the Sixth Amendment | Disclosure is presumptively prejudicial and requires relief; court must require the State to prove nonprejudice | Claim waived at trial; disclosure was not intentional; trial prosecutor didn’t receive strategy; no tainted evidence used | Presumption of prejudice arises when the State obtains a defendant’s confidential trial strategy |
| Whether the presumption is rebuttable and what burden applies to the State | Presumption is rebuttable only with strict proof the State did not use the material; burden should be high | State urged no per se rule; urged that prejudice must be shown | Presumption is rebuttable (at least when intrusion was not deliberate); State must prove nonprejudice by clear and convincing evidence |
| What procedural steps the trial court must take upon learning privileged material reached the prosecution | Court must sua sponte hold an evidentiary hearing and give defendant chance to challenge State’s proof | Trial court’s sorting and sealing procedure was sufficient remedy | Trial court must independently hold an evidentiary hearing requiring the State to prove by clear and convincing evidence that disclosure did not prejudice defendant |
| Appropriate remedy where court’s procedures were inadequate | Dismissal or reversal if prejudice cannot be rebutted; vacatur if procedures fail | New trial acceptable if State can show nonprejudice | Because the court’s sorting procedures were inadequate and no evidentiary hearing occurred, convictions vacated; retrial is possible only after required hearing and proof |
Key Cases Cited
- Weatherford v. Bursey, 429 U.S. 545 (1977) (overheard attorney-client conversations require a showing that the prosecution used the information or there was a realistic threat of prejudice)
- United States v. Morrison, 449 U.S. 361 (1981) (remedies for Sixth Amendment violations must be tailored to the injury; dismissal inappropriate absent demonstrable prejudice or substantial threat)
- Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) (purposeful state intrusion into privileged communications warrants a presumption of prejudice)
- Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983) (possession by prosecution of confidential defense knowledge is inherently detrimental and justifies presumption of detriment)
- State v. Lenarz, 301 Conn. 417 (2011) (rebuttable presumption of prejudice when state obtains detailed defense strategy; State must rebut by clear and convincing evidence)
- United States v. Danielson, 325 F.3d 1054 (9th Cir. 2003) (adopting Kastigar-like burden to show all evidence and trial strategy were derived from legitimate independent sources)
- Kastigar v. United States, 406 U.S. 441 (1972) (framework for government to show evidence is derived from independent sources to avoid taint)