STATE OF DELAWARE, Defendant-Below, Appellant, v. JACQUEZ ROBINSON, Plaintiff-Below, Appellee.
No. 232, 2018
IN THE SUPREME COURT OF THE STATE OF DELAWARE
April 16, 2019
Submitted: February 20, 2019; Court Below: Superior Court of the State of Delaware; Cr. ID. No. 1411017691 A&B (N)
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices. Constituting the Court en Banc.
Upon appeal from the Superior Court. AFFIRMED in part, REVERSED in part, and REMANDED.
Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware for Appellee.
VALIHURA, Justice, for the Majority:
I. Introduction
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
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.
II. 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
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
a paralegal assigned to the DOJ Homicide Unit (id. at A526-27), and Keith Marvel was a DOJ Special Investigator for the Criminal Division in Sussex County (id. at A587). Grubb, Downs, Denney, Ciritella, and Prater testified on October 25, 2017, and Marvel testified on November 21, 2017.
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
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
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
witnesses.31 However, she could not remember whether she helped draft the witness list in the Murder Case.32 Additionally, Denney testified that Prater would sometimes sit in prosecution strategy meetings to talk about the case.33 Indeed, Grubb testified that it was because of Prater‘s intimate involvement with the case that Grubb assigned her to the review.34
On June 30, 2017, Prater reviewed Robinson‘s documents in the seventh floor conference room at the DOJ in Wilmington—the same floor that, according to Ciritella, housed offices for all prosecutors and investigators in the Wilmington office.35 When the documents were not in the conference room for review, Ciritella testified that he secured the documents in his office, and that there was no evidence that anyone had tampered with or broken the lock.36 Like Ciritella and Marvel, Prater testified that she did not record or inventory what she reviewed.37
Based on the Superior Court‘s findings from its in camera review, the seized documents included privileged attorney-client communications and Robinson‘s handwritten notes containing trial strategy.38
concluded from her review that Robinson was not in possession of any documents prohibited by the Protective Order.42
On July 1, 2017, the day after Prater‘s review of Robinson‘s documents, she emailed Grubb suggesting that they return the documents to Robinson.43 Grubb replied and said that her suggestion made sense, but no one at the DOJ or DOC had notified Woloshin or the Superior Court of the State‘s investigation.44 Rather, on July
and legal research at the prison library.”45 She also asserted in that initial communication that “the actions of DOC violate Mr. Robinson‘s right to counsel under both the Delaware and federal constitutions,” and she requested that the court “take action in order to protect Mr. Robinson‘s right to counsel.”46
Within an hour of Woloshin‘s email, Grubb emailed Downs and Denney to say that Ciritella was supposed to have returned the documents two days earlier on July 3, 2017, but wrote, “I heard he is back tomorrow when the items will be returned.”47 The next day, on July 6, 2017, Woloshin sent a follow-up letter to Judge Parkins reiterating the points in her July 5 email and attaching a proposed order to require the DOC to return Robinson‘s material. Additionally, and separate from the confiscation of Robinson‘s documents, Woloshin raised concerns about Robinson‘s housing status leading up to trial. Judge Parkins responded within an hour at about 1 p.m., stating that he needed a response from the State by noon the next day, July 6, 2017.48
Prompted by Judge Parkins‘s email, Downs emailed Grubb, who in turn emailed Ciritella, to follow-up on the status of Robinson‘s documents. Ciritella responded at about 2 p.m. that the documents would be sent to Deputy Warden Truman Mears at Sussex Correctional Institute that afternoon. He also stated that Deputy Warden Mears was “aware of [the] investigation and has made the proper contacts for the internal delivery” to
Robinson.49 Downs then responded to Grubb, stating that the return of documents should be done “[a]s soon as possible.”50
On the morning of July 7, 2017, Ciritella reported that the documents had been dropped off at Sussex Correctional Institute with Deputy Warden Mears.51 Grubb forwarded Ciritella‘s status update to Downs within a few minutes. Downs then asked Grubb whether Deputy Warden Mears knew that the materials “should be returned ASAP,” and Grubb replied: “[H]e does. I asked Ciritella to make sure everything got back to Robinson immediately. I told [Deputy Attorney General] Greg Smith the same thing last night. I cannot confirm Robinson has the material, but I can confirm we relayed the importance.”52
July 6 and July 7, 2017.54 Thus, the State “remained in possession of [Robinson‘s] legal documents until four days before trial was scheduled to begin, despite having no evidence that [Robinson or his counsel had] engaged in any wrongdoing.”55
Meanwhile, following her review, Prater continued her involvement in final trial preparations, and the prosecution team continued to copy her on emails regarding witnesses and evidence for trial.56 In fact, Downs did not officially remove Prater from the prosecution team until July 14, 2017, after the Superior Court had continued the trial.57 Although she had been removed from the Robinson prosecution team, Prater testified that she continued to work with Downs and Denney on other murder cases.58
Robinson moved to dismiss his indictment on July 7, 2017, arguing that the seizure of his legal documents violated his Sixth Amendment rights.
III. The Superior Court Proceedings
A. The September 19, 2017 Decision
The Superior Court issued a preliminary Memorandum Opinion on September 19, 2017, to explain the framework for assessing whether the State violated Robinson‘s Sixth Amendment rights.59 Specifically, the court evaluated the impact of three significant Sixth Amendment cases in the context of privileged communications: Weatherford v. Bursey,60 United States v. Levy,61 and United States v. Morrison.62
The Superior Court concluded that, under the United States Supreme Court‘s decision in Weatherford, “there must be a
relationship.”65 If Robinson could not establish that there was a disclosure of his defense strategy or a deliberate attempt to interfere with his attorney-client relationship, then he would have the burden to show prejudice.66 Finally, the court ordered an in camera review of the documents that the State had seized from Robinson‘s prison cell.
B. The Hearings in October and November of 2017
Following its September 2017 Opinion and prior to conducting its in camera review, the Superior Court held a hearing on October 25, 2017, to hear testimony from the State‘s witnesses—Downs, Denney, Grubb, Prater, and Ciritella—and to clarify which documents were seized and reviewed.67 During the October hearing, the court learned that the State had failed to properly produce its emails or identify Marvel as one of the individuals who reviewed Robinson‘s documents. Thus, the court ordered a second document production and a second hearing, which took place on November 21, 2017.
1. The State‘s Deficient Discovery Responses
During the October hearing, the Superior Court questioned why the State had not previously disclosed Marvel‘s involvement in the review of Robinson‘s documents:
How come Keith Marvel has not been identified prior to today as one of the people who reviewed the documents, when I had specifically identified the scope of inquiry that I wanted to hear from all of the people who reviewed the documents, and Joe Grubb testified today that the only people that had access to the documents were Jamie Prater, himself, and John Ciritella. That now turns out to be inaccurate. . . . Mr. Grubb was asked specifically on
Direct Examination and on Cross who had access to the documents. He did not identify Keith Marvel. But now we know that is not correct. Now we know Keith Marvel did review the documents.68
In response, the State claimed it was unaware until Ciritella‘s testimony that Marvel had reviewed the documents.69 The record
The court also learned that the State had not properly searched and produced its emails.71 The court discovered this shortcoming through Prater‘s testimony, where she stated that she had not searched her emails for correspondence or memoranda relevant to the review of Robinson‘s documents—even though she admitted that there may have been
relevant emails with Grubb and Ciritella.72 Prior to the October hearing, the State had only produced three emails, which it uncovered from individual email searches by Grubb, Prater, and Ciritella of their own accounts.73
On November 7, 2017, the Superior Court instructed the State to “conduct a statewide document and email search for any documents and/or email messages addressing in any manner the search and seizure and/or the review of Defendant‘s documents as well as any staffing changes that occurred as a result thereof, and shall produce those documents and email messages . . . .”74 In a November 16, 2017 letter, the State replied that it had conducted a two-prong search. First, it requested “each of the individuals involved in this matter (Messrs. Downs, Denney, Grubb, Ciritella, Dempsey, and Ms. Prater) to provide any identified electronic files.”75 Second, the State represented that the Delaware Department of Technology and Information (“DTI“) searched and produced emails “from the accounts of
It appears from the State‘s November 16 letter that the State did not include Marvel‘s email account in its search and production. The court had ordered a “statewide” search of any relevant material, not merely a search of those six accounts. On November 21, 2017, the Superior Court heard Marvel‘s testimony and closed the evidentiary record.
2. The State‘s Testimony Concerning the Possibility of “Taint”
In the October and November hearings, the witnesses testified concerning whether the contents or substance of the documents had been disclosed to Downs and Denney, or to other individuals outside of those involved with the Protective Order investigation. Overall, the weight of the evidence suggests that Robinson‘s privileged information was not divulged to those involved with the Murder Case, other than Prater. We summarize the record next.
Downs and Denney testified that neither Prater nor Ciritella shared information about the review with them.79 Additionally, they broadly testified that they did not hear about the contents of Robinson‘s documents from any other source.80 That testimony
Of those actively involved with the investigation after June 28, 2017, Ciritella and Marvel testified that they did not share information with Downs or Denney, or with anyone else generally.82 Ciritella and Marvel further testified that they no longer remembered the substance of Robinson‘s documents.83
The questioning and testimony of Grubb and Prater was less thorough than the questioning of Downs, Denney, Ciritella, and Marvel. First, Grubb was not asked whether he shared information about the review with anyone, nor did he address that question in his affidavit.84 Rather, he testified that he did not review the documents and that neither Ciritella nor Prater informed him of the substance of the documents.85
Second, Prater testified that she reviewed Robinson‘s notes, which reflected information that he received from Woloshin. Although Prater testified that she did not share any information with Downs or Denney,90 when asked whether she shared information about the documents with any other person, she identified Grubb. She did not, however, expressly state that Grubb was the only person she communicated with about the review.91 Further, Prater
C. The May 1, 2018 Decision
After considering the relevant testimony, reviewing Robinson‘s documents in camera,94 and considering additional briefing by the parties, the Superior Court issued its May 2018 Opinion dismissing Robinson‘s indictment with prejudice. The court held that the State‘s seizure of attorney-client material was improper and could not be legally justified for several reasons.
First, the State‘s Fourth Amendment justification was misplaced. The State had argued that the search and seizure was constitutionally valid because defendants do not have a reasonable expectation of privacy in prison cells.95 But the court explained that the State failed “to appreciate the substantial differences between Fourth and Sixth Amendment jurisprudence” applicable here.96 For example, the court noted that prisoners are afforded their right to assistance of counsel, which bars prison officials from listening to or
Second, the State‘s reliance on the crime-fraud exception to the attorney-client privilege was improper because “application of the crime-fraud exception . . . requires judicial oversight and approval,” which the State did not seek.97 But even if the State had sought judicial approval, the court stated that it would have denied the request:
The Court‘s inquiry would have revealed that there was no basis to intrude on the attorney-client privilege because no witness names had been produced by the State, Defense Counsel had permission to share the “content” of witness statements with her client, and the record evidence would have demonstrated that Defense Counsel had steadfastly refused to provide information to her client that would have violated the TMG Protective Order.98
Additionally, the Superior Court held that the State should have applied for a search warrant, but that the warrant would not have issued regardless because the State did not have probable cause for the same reasons the court would not have granted judicial approval. Further, the court rejected the State‘s contention that it had to conduct a search immediately to protect witness safety, as the State only sought evidence of a Protective Order violation, not actual witness intimidation, and it displayed no urgency in conducting the investigation.99
Third, and finally, the State failed to employ a taint team. Instead, “the State took no steps to screen the Prosecution Team to protect the integrity of the attorney-client privilege.”100 The prosecutors led the Protective Order investigation until less than two weeks before trial in the Murder Case, and even after that point, the court found that the State‘s claims that the prosecutors were screened from the case were not supported by the record. Additionally, Prater helped review the privileged documents and remained on the trial team for nearly another two weeks to assist with final trial preparations.
Thus, the court held that Robinson had suffered both presumed and actual prejudice because the State had deliberately interfered with Robinson‘s Sixth Amendment rights, “which could cause a chilling effect on [Robinson‘s] attorney-client communications in the future.”101 Additionally, the court held that Robinson suffered prejudice because: (i) Grubb selected a member
With these facts in mind, the court turned to a remedy. The State argued that Robinson was not entitled to any remedy because trial had not yet taken place and, thus, any prejudice he suffered could be rectified before trial. But the State failed to propose any alternative remedies to dismissal throughout the entirety of the Superior Court proceedings.106 Regardless, the court rejected State‘s argument, explaining that:
[T]he State‘s position would mean that it can intentionally review a defendant‘s privileged attorney-client communications at any time before trial without any consequences. Such a rule would vitiate the fundamental importance of a defendant‘s right to the assistance of counsel and give the State a license to violate the Sixth Amendment rights of defendants in the future.107
Despite the State‘s failure to propose a remedy, the court identified several potential alternatives to dismissal, including replacing the entire prosecution team, destroying all of the State‘s work product, releasing Robinson on pretrial supervision, and barring Grubb, Ciritella, and Marvel from working on any of Robinson‘s cases.
The court ultimately determined that alternative remedies were inadequate because “the prejudice to Defendant is much broader, and the affront to the rule of law
Q: Have you ever done a search like this before?
Ciritella: Yes, sir.
Q: So let me be specific. Have you done . . . a seizure and review of an inmate‘s legal paperwork?
Ciritella: Yes.
Q: Okay. And I don‘t want you to say case names, or anything. To your knowledge, were those pursuant to a search warrant, or anything like that?
Ciritella: No, sir, they were not.
Q: So you have experience in going through client documents—pardon me, attorney-client documents to determine if a protective order has been violated?
Ciritella: If there is probable cause to believe that there is some type of violation, yes.
. . .
Q: Before the Jacquez Robinson review that you conducted, how many times would you say that you looked through documents from cells of inmates looking for things that may have violated a protective order?
Ciritella: I think maybe one other time.109
Further, the court held that the State did not fully accept responsibility for the shortcomings in its investigation or “demonstrate concern for Defendant‘s right to a fair trial,” and it “demonstrated a seeming indifference to the serious constitutional issues at stake throughout these proceedings.”110 For example, the State failed to comply with the court‘s order to identify each person who reviewed Robinson‘s documents, conduct a comprehensive email search, and produce responsive emails.
Thus, while noting that dismissal was a “severe” and “unfortunate” result, the Superior Court held that it was the only adequate remedy “because any lesser sanction would unduly depreciate the seriousness of the State‘s actions and the extent to which the State‘s actions put at risk the most fundamental constitutional requirements.”111 Further, the court held that dismissal was the only remedy that would “deter the State from violating the Sixth Amendment rights of criminal defendants
On May 2, 2018, the day after the Superior Court‘s decision, the State filed its notice of appeal.
IV. Claims on Appeal
The State appeals the Superior Court‘s dismissal of Robinson‘s indictment on two grounds. First, the State claims that it did not violate Robinson‘s Sixth Amendment right to assistance of counsel because Robinson‘s ability to defend himself was not affected in any way by the State‘s warrantless search and seizure of his documents. Specifically, the State claims that its seizure of Robinson‘s documents did not prejudice him because it returned the documents, trial was continued, no records of the material were retained, and no privileged documents were conveyed to Downs or Denney. Second, even assuming that its actions did prejudice Robinson, the State contends that dismissal was an inappropriate remedy in the absence of any demonstrable, irreparable prejudice to Robinson.
Robinson disputes both of the State‘s arguments. He contends that the Superior Court not only correctly presumed prejudice, but correctly found actual prejudice caused by the State‘s intentional intrusion into his attorney-client relationship, and by learning the details of his trial strategy only eleven days before the murder trial. Further, while acknowledging that dismissal is an extreme sanction, Robinson argues that it is warranted here because of the affront to the rule of law and as a means of curbing future misconduct by the State.
V. Standard of Review
The State‘s arguments concerning Robinson‘s alleged Sixth Amendment violation are issues of law that we review de novo.113 Further, we review de novo the Superior Court‘s application of the law to these facts,114 along with the “embedded legal conclusions” in the court‘s remedy analysis.115 We will not disturb the Superior Court‘s factual findings if they are supported by competent evidence.116
VI. Analysis
A. The State Violated Robinson‘s Sixth Amendment Rights
Any discussion addressing governmental interference with a defendant‘s Sixth Amendment right to counsel must acknowledge the centrality of the attorney-client privilege, which is fundamental to the exercise of that right. The privilege was designed to encourage full disclosure by a client to his or her attorney in order to facilitate the rendering of legal advice.117
In this case, the parties have debated intensely about what is required to establish a violation of the Sixth Amendment.119 That debate is understandable given that the federal courts are divided on important aspects of the analysis, including whether a showing of prejudice to the defendant is required to establish a violation when the government intentionally invades a defendant‘s privileged communications. Courts have also differed as to who bears the burden of proof and the standard of proof in analyzing prejudice in the remedy analysis.120
In Weatherford, the United States Supreme Court held that a threat of significant harm to the defendant was a critical element of a non-deliberate violation of the Sixth Amendment. There, attendance by an undercover agent at a meeting with the criminal defendant and his attorney did not constitute a Sixth Amendment violation. The Court, rejecting the Fourth Circuit‘s per se rule, reasoned that “[a]t no time did [the agent] 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.‘”121
But the Supreme Court suggested four factors that could strongly indicate a Sixth Amendment violation, namely:
[1] Had [the agent] testified at [the defendant‘s] trial as to the conversation between [the defendant] and [his attorney]; [2] had any of the State‘s evidence originated in these conversations; [3] had those overheard conversations been
used in any other way to the substantial detriment of [the defendant]; or even [4] had the prosecution learned from [the agent] the details of the [attorney-client] conversations about trial preparations, [the defendant] would have had a much stronger case.122
In Weatherford, the government did not violate the defendant‘s Sixth Amendment right to counsel because “[n]one of these elements [were] present.”123 It stated further that “[u]nless [the agent] communicated the substance of the [attorney-client] conversations and thereby created at least a realistic possibility of injury [to defendant], or benefit to the State, there can be no Sixth Amendment violation.”124 Thus, in Weatherford, where there was a significant investigative justification, the Supreme Court did not consider whether an intentional invasion of the privilege by the government might constitute a per se violation of the Sixth Amendment.125 But the Court appeared to recognize that the prejudice requirement it articulated does not necessarily govern intentional intrusions by the prosecution that lack a legitimate purpose.
Three years later, in Morrison, the Supreme Court did consider the appropriate remedy for the government‘s deliberate intrusion into the attorney-client relationship when the intrusion did not prejudice the defendant‘s representation. There, federal drug agents met with the defendant twice without her attorney‘s knowledge, although they were aware that she had retained counsel.126 The agents sought her cooperation, disparaged her attorney, and threatened her with more severe penalties if she refused to cooperate.127 However, she did not cooperate or provide them with any incriminating information about herself or her case. She also maintained her relationship with her counsel.128
The United States Court of Appeals for the Third Circuit held that this conduct violated the defendant‘s right to counsel, even if the government‘s conduct had not adversely impacted her representation. It dismissed the indictment with prejudice.129
The Supreme Court unanimously reversed. In doing so, it did not address the government‘s contention that no Sixth Amendment violation occurs unless its conduct prejudices the defendant. Rather, the Court assumed that the government had violated the Sixth Amendment, but held that the Third Circuit had erred in dismissing the indictment.130 It stated that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even
The Supreme Court held that remedies for the Sixth Amendment violations should be tailored to the injury suffered. It stated that the “premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel‘s representation or has produced some other prejudice to the defense,” and that “[a]bsent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding.”132 Because the defendant had not established any “transitory or permanent” prejudice,133 the government‘s violation did not justify interfering in the proceedings. Thus, Morrison makes clear that dismissal of an indictment is a drastic remedy for a Sixth Amendment violation absent a showing of actual prejudice or a substantial threat of prejudice to the defendant‘s representation.
Following Weatherford and Morrison (both decisions authored by Justice White), some courts and commentators have suggested that because the Supreme Court did not address the government‘s argument that a showing of prejudice was needed to establish a Sixth Amendment violation, ”Morrison ‘left open the possibility that the Court might adopt a per se standard for those state invasions of the lawyer-client relationship that are not supported by any legitimate state motivation.‘”134 This might be the case, for example, where the prosecution acts intentionally and without legitimate purpose.135 The federal appellate courts are divided on this issue.
The United States Courts of Appeals for the Third and Tenth Circuits have held that intentional intrusions by the prosecution into the defendant‘s attorney-client privileged information, at least without a legitimate purpose, constitute a per se violation of the Sixth Amendment with no need to demonstrate that the defendant has suffered prejudice as a result of the disclosure.136 The Sixth,137 Eighth,138 and
As for the courts that presume prejudice to the defendant, some have held that the government‘s possession of a defendant‘s privileged information is a per se
standard in State v. Bain,143 holding that a presumption of prejudice exists when the government becomes privy to a defendant‘s trial strategy, and that the presumption can be rebutted by clear and convincing evidence—“at least when the State did not deliberately intrude into the attorney client relationship.”144
As for the former category, in Levy (decided after Weatherford but before Morrison), for example, the Third Circuit viewed Weatherford as “suggesting by negative inference that a sixth amendment violation would be found where, as here, defense strategy was actually disclosed or where, as here, the government enforcement officials sought such confidential information.”145 In other words, “when actual disclosure occurred,” the court found no need to inquire into prejudice.146
The Third Circuit viewed speculation about possible prejudice to the defense resulting from actual disclosure of confidential communications to the government as dangerous if the court were to adopt a test weighing the prejudice on a case-by-case basis.147 It reasoned:
[I]t is highly unlikely that a court can, in [a pretrial] hearing, arrive at a certain conclusion as to how the government‘s knowledge of any part of the defense strategy might benefit the government in its further investigation of the case, in the subtle process of pretrial discussion with potential witnesses, in the selection of jurors, or in the dynamics of trial itself.
. . . .
[T]he interests at stake in the attorney-client relationship are unlike the expectations of privacy that underlie the fourth amendment exclusionary rule.
The fundamental justification for the sixth amendment right to counsel is the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense. Free two-way communication between client and attorney is essential if the professional assistance guaranteed by the sixth amendment is to be meaningful. The purpose of the attorney-client privilege is inextricably linked to the very integrity and accuracy of the fact finding process itself. . . . In order for the adversary system to function properly, any advice received as a result of a defendant‘s disclosure to counsel must be insulated from the government. . . . We think that the inquiry into prejudice must stop at the point where attorney-client confidences are actually disclosed to the government enforcement agencies responsible for investigating and prosecuting the case. Any other rule would disturb the balance implicit in the adversary system and thus would jeopardize the very process by which guilt and innocence are determined in our society.148
The Third Circuit concluded that the prosecutor‘s knowledge of the defendant‘s trial strategy required a per se reversal of a subsequent conviction, since the prosecution‘s strategic responses to this defense strategy were now in the public domain and known to any subsequent prosecution. Thus, it concluded that dismissal of the indictment was the only appropriate remedy.149 The court expressly declined to decide whether dismissal would be required when defense strategy has been disclosed to government agents but has not become public information.150 As the trial court aptly observed in this case, “[t]here has been some confusion over whether Levy is still good law” following Morrison.151 The following discussion of Third Circuit cases makes the point.
Six years after Levy, the Third Circuit, in United States v. Costanzo,152 applied Weatherford in deciding another case involving an alleged
- Intentionally plants an informer in the defense camp; (2) when confidential defense strategy information is disclosed to the prosecution by a government informer; or (3) when there is no intentional intrusion or disclosure of confidential defense strategy, but a disclosure by a government informer leads to prejudice to the defendant.154
Although none of those circumstances was present in Costanzo, the Third Circuit implied that Levy was still viable after Morrison, concluding that “the Levy rule does not apply to petitioner‘s case,” given the findings of the district court that no defense strategy had been disclosed.155
The Third Circuit further explained its holding in Levy in its 2012 opinion, United States v. Mitan.158 In its analysis, the Third Circuit stated that ”Levy crafted a three part test examining: (1) intentional government conduct, (2) attorney-client privilege, and (3) the release of confidential legal strategy. When those circumstances coalesce, Levy dispenses with an inquiry into whether the defense was prejudiced.”159 But, in Mitan, the Third Circuit declined to address the question of whether Morrison precludes Levy‘s presumption of prejudice approach because it found that the defendant could not show the factual predicate for the presumption, namely, an intentional invasion by the government into any attorney-client relationship. The Third Circuit assumed that Levy‘s approach remained viable, but it observed, again in a footnote, that “[its] interpretation of Weatherford in Levy, however, was called into question just two years later when the [United States Supreme Court] declared in United States v. Morrison that ‘absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the [Sixth Amendment] violation may have been deliberate.‘”160
Understandably, the parties here vigorously dispute whether prejudice still may be presumed under Levy. But that is a question we need not definitively resolve today because the Superior Court did not merely presume prejudice.161 Instead, it concluded that the Defendant had “suffered substantial prejudice as a result of the State‘s conduct.”162
Specifically, the trial court found that the State selected Prater to review the seized documents containing Defendant‘s privileged attorney-client communications in detail, including letters from Woloshin and handwritten notes reflecting Woloshin‘s communications, from which Prater learned details of the defense trial strategy.163 Prater was then allowed to “remain on the Prosecution Team and work with the Trial Prosecutors” on the State‘s final trial preparations, and the court found that the State did not implement any process to effectively screen the Trial Prosecutors from the investigation.164 Further, Downs
In addition to these findings of prejudice, the trial court found that the State demonstrated “a seeming indifference to the serious constitutional issues at stake throughout these proceedings,” pointing to the fact that “[Grubb], who authorized the search, seizure, and review,” also appeared as “counsel for the State‘s response to the motion to dismiss until specifically instructed by the [c]ourt to involve [other] counsel who would not be called to testify as a witness.”166 The trial court also considered the State‘s various discovery failures, and the fact that the State‘s reasons for the intrusion, namely, its stated concerns about witness safety, were not supported by the record. Moreover, the trial court was seriously concerned that the “State‘s persistent refusal to accept responsibility for improper conduct in this matter” without a “significant sanction” would likely allow the State to “engage in additional abuses in the future.”167 This concern was warranted, in the trial court‘s view, because “[Ciritella] testified that he ha[d] previously conducted similar searches targeting a defendant‘s legal documents in other cases, suggesting that the State may have engaged in other unauthorized reviews of attorney-client communications.”168
In sum, because the trial court made findings of actual prejudice, and because the State has not shown that those findings of actual prejudice are clearly erroneous, we need not broadly decide whether prejudice should be presumed in any case where the government obtains defendant‘s privileged materials.169 Rather, we limit our holding to the facts here, where the State has deliberately invaded a defendant‘s attorney-client privilege and has obtained defendant‘s trial strategy information, and the defendant has suffered prejudice as a result. Based upon this aspect of the record, we affirm the Superior Court‘s holding that the State violated
B. Tailoring the Remedy to the Injury Suffered
This leads us to the next question: was dismissal of the indictment with prejudice sufficiently “tailored” to the prejudice Robinson suffered as Morrison requires? In Morrison, the Supreme Court offered general guidance on remedies in this context. The Court first recognized that upholding the
Our cases have accordingly been responsive to proved claims that governmental conduct has rendered counsel‘s assistance to the defendant ineffective. At the same time and without detracting from the fundamental importance of the right to counsel in criminal cases, we have implicitly recognized the necessity for preserving society‘s interest in the administration of criminal justice. Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered for the constitutional violation and should not unnecessarily infringe on competing interests. Our relevant cases reflect this approach. . . . None of these deprivations, however, resulted in the dismissal of the indictment.
. . . .
[W]hen before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or order a new trial if the evidence has been wrongfully admitted and the defendant convicted.170
Accordingly, identification of a
Dismissal with prejudice—an extreme remedy—is the only remedy Robinson sought. In Morrison, the Supreme Court held that dismissal is a “drastic” form of relief, and that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.”176 Rather, “[t]he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.”177 Thus, the Court held that dismissal was inappropriate.
In Shillinger v. Haworth,178 the Tenth Circuit observed that “dismissal of the indictment could, in extreme circumstances, be appropriate.”179 Other courts have observed that dismissal of a criminal case is a draconian remedy “of last resort.”180 The
where the government has effectively diminished the ability of the defendant to mount a full defense,183 or where the government‘s misconduct secured the indictment.184
In contrast to Robinson‘s demand for dismissal, the State steadfastly adhered to its position that no
1. The Record on “Taint” Does Not Support Dismissal
The overwhelming weight of the case law, including Morrison, which is binding on this Court, holds that dismissal of an indictment with prejudice (the most severe remedy) should not be imposed absent findings of irreparable prejudice. The overwhelming weight of the evidence here suggests that any “taint” was contained and did not infect the prosecutors. Downs and Denney both testified that they were unaware of the status of the investigation or of the contents of Robinson‘s documents. Further, of the four individuals who had access to the documents, Prater, Ciritella, and Marvel testified that they did not share information about the review with Downs or Denney. Grubb, the only other individual with access to the documents, testified that he did not review the documents himself and that he attempted to screen Downs and Denney from the Protective Order investigation. The case had not yet gone to trial and no evidence suggests that any privileged information found its way into the public domain.
We acknowledge that the record is not airtight. We do not have a high level of confidence in the completeness of the State‘s email production, for example. In addition, the questioning of Grubb and Prater could have more thoroughly explored the issue of taint. And it is unclear whether Grubb actually reviewed the documents, given the conflicting testimony on that point.186 But based upon the record developed after two evidentiary hearings, we conclude that the record does not remotely come close to establishing irreparable taint or prejudice.
2. There Is Insufficient Evidence of a “Pattern” of Misconduct
The Supreme Court in Morrison did suggest in a footnote that a more severe remedy might be appropriate even in cases where the harm is not irreparable, but where there is a pattern of misconduct.187 Although the State‘s conduct here was egregious, the evidentiary record does not sufficiently establish such a pattern of misconduct.
To the extent the trial court justified dismissal based upon the State‘s potentially similar misconduct in other cases, there is virtually no record evidence other than Ciritella‘s limited, ambiguous testimony on that issue. His testimony sheds no light on when any such cell searches occurred, who
We are aware of the Superior Court‘s 2011 transcript ruling in State v. Cannon.188 In Cannon, unlike here, the State attempted to avoid intruding on the defendant‘s right to
counsel by obtaining a search warrant that excluded attorney-client communications. Moreover, when the prosecutors learned that the detective had seized a notebook containing privileged information, they immediately and successfully took steps to prevent their exposure to the content of a notebook.189 In fact, the Superior Court concluded that the investigating detective did not “knowingly, probably not even recklessly,” violate the defendant‘s
To be clear, we do not condone the State‘s misconduct. But given that we must carefully balance the competing interests of protecting the constitutional rights of defendants against the competing interests of all Delaware citizens (including victims and their families) in the administration of criminal justice, we conclude that the most extreme remedy possible, namely, dismissal, was unwarranted. A remedy less severe than dismissal of Robinson‘s indictment can properly be tailored to ensure that Robinson‘s right to a fair trial is protected.192 Accordingly, we reverse.
To eliminate what we perceive as a remote possibility of any taint or unfair advantage to the State, and as a sanction for
VII. Conclusion
In sum, we affirm the trial court‘s conclusion that the State violated Robinson‘s
Make no mistake that we condemn the State‘s behavior. We warn the State that any further instances of such intentional misconduct may well lead to dismissal of the case in which the misconduct occurs, in addition to other possible sanctions.194 We are troubled that even during this appeal, the State continued to trivialize the wrongfulness of its conduct.195 In the event the State again invades a defendant‘s privileged materials, the State must bring to the trial judge‘s attention this Opinion for the purpose of factoring in this case in determining whether the State engaged in a pattern of misconduct.
The fairness of our judicial system is called into question by prosecutorial misconduct of the type that occurred here. Prosecutors are ministers of justice—not merely advocates.196 “[T]he prosecutor
This Court bears ultimate responsibility for protecting the rights of the accused. And because “only this Court has the power and responsibility to govern the Bar,”198 we also bear ultimate responsibility for upholding the high standards of professional conduct that we have established for lawyers practicing in this State. In order for our criminal justice system to function fairly, all of those charged with enforcing our laws must act within the confines of our constitutional boundaries. But in the rare case when that does not happen, as here, we are also charged with balancing the harm from such transgressions against the interests that all Delaware citizens (including victims of crime and their families) have in the fair administration of criminal justice and enforcement of our laws. As this Court has said concerning situations involving interference with the assistance of counsel, the remedy “should be tailored to the injury suffered and should not unnecessarily infringe upon society‘s competing interest in the administration of criminal justice.”199 For the reasons set forth above, we reverse the dismissal of the indictment.
We therefore AFFIRM in part and REVERSE in part the Superior Court‘s September 19, 2017 and May 1, 2018 opinions, and REMAND for further proceedings consistent with this Opinion.
STRINE, Chief Justice, concurring in part, dissenting in part, with TRAYNOR, Justice, joining:
We dissent in part from our colleagues’ excellent opinion. Like our colleagues, we find the State‘s failure to acknowledge the wrongfulness of its conduct and the seriousness of its intentional, and furtive, violation of a defendant‘s Sixth Amendment rights disturbing and inexcusable.200 Even on appeal, the State appears not to understand that what it did was wrong.
We also respect the majority‘s determination that dismissal was too severe a remedy. The decision of how to remedy a situation like this is difficult, especially when dismissal could result in the defendant being excused from culpability for a serious crime he may have in fact committed. But our trial courts must make difficult judgments like this, and the trial judge here grounded her dismissal order in the record evidence before her, informed by the precise arguments the parties made to her. Because, in our view, her remedial determination is reasonably supported by the record and justified by the
To explain why we would affirm, we start with the way the parties themselves approached the issue before us. The Superior Court was faced with a motion to dismiss, and the State opposed that motion largely on the frivolous ground that its intentional and secretive invasion of the defendant‘s attorney-client communications was not a Sixth Amendment violation.201 The State proposed no remedy for its breach at all.202
As our colleagues acknowledge, the Superior Court did not lightly grant dismissal, but considered the behavior of the State so problematic that it warranted a correspondingly severe remedy. One of the reasons why the behavior was problematic in a remedy-relevant way was that it was not novel and reflected a failure of the Department of Justice (“DOJ“) to learn from past experience.
As the Superior Court found, one of the State‘s witnesses—the prosecution‘s chief investigating officer—testified that he had engaged in behavior of this kind before.203
Perhaps because the DOJ acted in the same deceptive manner that characterized its behavior here, that prior invasion, or perhaps incursion, was not caught or called out. To our minds, it was not the trial judge‘s job to open the record for the State to show that its actions were, taken over time, aberrational, when its own witness said that what they did in this case was a repeat of past behavior. This evidence of recidivist invasions of the attorney-client relationship is particularly troubling because the Superior Court already addressed analogous, if far less extreme, behavior in Cannon v. State. In Cannon, the State inadvertently seized attorney-client privileged materials from a defendant‘s cell after obtaining a search warrant to seize certain other items from the cell. Because the State promptly alerted the trial court to the violation and immediately
As to this point, the majority elides an issue that the trial judge likely found telling. Upon learning that Robinson‘s legal materials had been taken from his cell, his attorney immediately alerted the Superior Court and requested that the materials be returned.206 Once this came to the Superior Court‘s attention, the trial judge requested a prompt response from the State and received two letters. The first, from the lead prosecutor, failed to acknowledge the prosecution‘s role in the seizure of Robinson‘s papers and merely stated that “I have been advised that materials taken from Robinson‘s cell has [sic] already been returned or will be returned to him today.”207 Without the second letter from the Department of Correction (“DOC“) advising the Superior Court that “[a]t the request of Department of Justice investigators, the DOC did conduct a search of Robinson‘s cell on June 30, 2017, and did remove materials from his cell, including legal materials,” the Superior Court—and Robinson—might never have learned the full story about the State‘s unlawful behavior.208 This lack of candor from the criminal division of the DOJ underscores the concerns the Superior Court cited as motivating the severity of its remedy.209
This lack of candor extends to other aspects of the record and also has the effect of undercutting the confidence the Superior Court could have in crafting an alternative remedy—a remedy the trial judge considered, despite the State‘s failure to propose any remedy, and specifically rejected.210 For example, the State failed
a proper search, the State produced more than 37 additional, relevant documents.215 Attorneys, as officers of the court, should take any command from the court seriously, and especially in a case about potential constitutional violations, the State‘s failure to promptly and thoroughly comply with a court order is alarming and undercuts our confidence in the State‘s ability to implement a “clean team” solution.
But this was not the only instance in which the State failed to adhere to the Superior Court‘s commands. Despite prior instructions from the trial court to have “all of the people who reviewed [Robinson‘s] documents” testify at an October hearing,216 the State failed to produce an investigator who, along with the chief investigator, initially reviewed Robinson‘s documents at the jail.217 Because of the State‘s failure to follow the trial judge‘s earlier command to have everyone involved testify, she held another hearing a month later to hear from this missing witness.218 In this instance, the State not only failed to comply with the Superior Court‘s earlier command, but also delayed the resolution of this case by at least a month
the case after she reviewed the documents,219 evidences a combination of less than ideal candor, a failure to “get it,” and a mindset that cuts against reposing undue confidence in the DOJ to faithfully implement a more tailored remedy. The record is indisputable that the paralegal continued to be included in all of the trial team‘s e-mail traffic about the case until at least July 7, 2014220 and “was not officially removed from the prosecution team until July 14, 2017, after the Court continued the [originally scheduled] July 11 scheduled trial.”221 If the criminal division took Cannon seriously, it is difficult to understand why the paralegal was not immediately removed from all distribution lists, formal instructions were not given to exclude her from all communications regarding the case, and a stringent clean team approach was not implemented. Instead of conjuring up a clean team remedy on its own initiative, a remedy that would not have been supported by any reasoned input or suggestions from the DOJ and that would require the faithful and diligent
implementation by an organization (the DOJ) that did not seem to believe it did anything wrong, the Superior Court decided that granting the motion to dismiss was the most equitable and sufficient option to remedy the State‘s serious misconduct. Given this record and the State‘s failure to propose any viable remedy, we should not second-guess the Superior Court‘s conclusion that dismissal was appropriate.
Our friends in the majority are right that dismissal has been said to be a disfavored remedy.222 But this is not a case about an isolated piece of evidence that the State got improperly and could be remedied by exclusion at a new trial. This is a case where the State gained access to the defendant‘s trial strategy,223 did so secretly,
Forging a clean team solution in any situation like this is challenging; doing so when the organization that has to execute it has not proposed a viable approach of its own, fundamentally does not believe it did anything wrong, and already fumbled its first try at something like it is an exercise necessarily fraught with risk. The trial judge‘s decision that this risk should not be imposed upon the defendant at the instance of the party whose wrongful conduct gave rise to the problem needing solution—and the party that never proposed any alternative solution—is reasonable and deserves respect.
So too is the trial judge‘s view that without a stringent remedy the State has poor incentives to improve its behavior.225 In a future case, perhaps the State won‘t be caught. And if it is, it can just insist that there is no harm, and propose no remedy. Even if it loses on that argument, it will get a do over with a new trial team.
This case is like a football team secretly stealing the other team‘s game plan, not being honest about it when caught, and asking for the game to be played at a later time on a “just trust us, the folks who read your game plan will not be involved” basis. Except that the stakes here involve a criminal defendant‘s trial strategy and if the game is played later,
the defendant will not only face a serious delay in his trial and the corresponding staleness in memories of witnesses, but the quite rational concern that in fact the State‘s prosecution team will have benefited from having access to his trial strategy and can use that access to improve its chances of convicting him.
In this case, the State itself created the stark choice the trial judge faced. Its obstinacy, lack of forthrightness, and failure to propose a confidence-inspiring remedy, or any remedy at all, was its own choice. Confronted with the record the parties created, the trial judge made a tough and well-reasoned decision to remedy serious
Notes
Grubb‘s testimony revealed a similar lack of detailed instruction. See id. at A406-07 (Grubb‘s Testimony) (Q: “And did you provide instructions to Special Investigator Ciritella about what he was supposed to do in the investigation?” Grubb: “Yes. I asked him to coordinate the search of Jacquez Robinson‘s cell, to review the specific documents that may be violative of the protective order, and to let me know what he found. And most specifically, only tell me; leave Denney and Downs completely out of it for the reasons we have already discussed. I explained to him how we wanted to create that wall between what we were doing and the trial preparation for Jacquez Robinson‘s murder trial.” Q: “And did you task him with going to the prison where Mr. Robinson was an inmate?” Grubb: “I didn‘t specifically task with him going to the prison, I just tasked him with leading the investigation. The nuts and bolts of how that occurs I leave to him.“); id. at A409 (Q: “Before Special Investigator Ciritella reviewed the documents found in Mr. Robinson‘s cell, did you provide any parameters about what he was going to be looking for?” Grubb: “Well, yes. Like I said before, we are only looking for any document that would be in violation of the protective order with the witness identifiable information.“). In fact, Grubb testified that he did
App. to Opening Br. at A89. Prater testified that she did not provide her written findings until five days following her review because four of the intervening days consisted of the weekend, a personal vacation day, and Independence Day, a State holiday. Id. at A544 (Prater‘s Testimony).Mr. Robinson was in possession of co-defendant transcripts, which he is entitled to. There were no witness transcripts or police reports in Mr. Robinson‘s possession at the time that the search was conducted. However, there was one copy of a two page redacted FBI report in Mr. Robinson‘s possession as well as several pages of hand written notes detailing specific facts, witness statements, and other evidence all of which could have only been obtained via the police reports. It is my conclusion that Ms. Woloshin shared the redacted police reports with Mr. Robinson. The redacted police reports were not under protective order however, as the State always does, we had asked Ms. Woloshin not to share the redacted police reports with her client, she did so anyways.
Id. at *13 n.92 (citation omitted). We agree. At the outset, the State could have raised any concerns with Woloshin, which is what happened in In re Koyste, 111 A.3d 581 (Del. 2015). There, the defense lawyer admitted to violating a protective order and self-reported to the judge the same day. As officers of the Court and members of the Delaware Bar, this option merited more serious consideration by the State.[D]espite having no evidence in support of its argument, the State has continued to suggest that Defense Counsel engaged in improper behavior. For example, in its most recent submission to this Court, the State wrote, “Apparently, to gain trust, [Woloshin] either violated the TMG Protective Order or duped her client into believing she was providing him more than was permitted.” The Court finds that the State‘s ad hominem attacks against Defense Counsel are disrespectful and unprofessional, falling short of the Court‘s expectations for professionalism and civility for Delaware lawyers.