Warren E. Burger: We’ll hear arguments next in number 1510, Weatherford against Bursey. Mr. Coleman, you may proceed whenever you’re ready.
J. C. Coleman: Mr. Chief Justice and may it please the Court. I am going to take a little of my time to review the facts which I realize are already in the record. However, I do think it’s important for this reason to show a little more clearly the relationship between the two principles in this case And when I say the two principles, I am speaking of Weatherford and Bursey, although of course Strom is a defendant and was the South Carolina Law Enforcement Chief. These events occurred, the events leading up to this litigation occurred in 1970, approximately at the end of a period of several years of dissension and on the college campuses of this country and I believe other parts of the world as well. Weatherford was a salaried undercover police agent. I think that’s important to remember in this case, not controlling but important. He has been referred to in the case as a paid informer and I guess in the broad sense, he was, but nevertheless, he was a hired, salaried member of the South Carolina Law Enforcement Division assigned to undercover work as opposed to an informer who might be paid by the job or by the persons he turned in. He was not that type of individual. He was also a student at the University of South Carolina. His principal assignment was to report to the other defendant, Strom who was and is the Chief or Head of the South Carolina Law Enforcement Division which is of course, the Chief Police Agency or State Police of South Carolina other than the State Highway Patrol. The Plaintiff Bursey, the plaintiff below Bursey, of course, was a student at the University of South Carolina and the two became very close friends. They were not simply acquaintances. They visited each other in their homes. They associated with each other in various campus activity groups. I believe the testimony in the record shows that at least on one occasion, Bursey and Weatherford were co-chairpersons, I don’t know where group, on the campus of the University of South Carolina. The record would show further, I think, that Weatherford later married a very close friend, a roommate of Mr. Bursey’s wife. So, they were much closer than mere acquaintances and we think that that is important in this case. This association went on and of course, Bursey was completely without any knowledge that Weatherford was an undercover agent and the two, together with two other persons, who do not really enter this case except that they participated in the event in March of 1970 In order to demonstrate their opposition to the Vietnam War afflicted considerable damage to the personal property and the real property of the Selective Service Office, the Draft Board in Columbia, South Carolina. Admittedly, Strom, the police chief had been given prior notice of this crime by Weatherford. Weatherford did participate with Bursey and two others in the crime and although there were police agents in the building, who had been placed there in order to either stop the crime or capture the criminals, were unable to do so and the four persons escaped. That was early in the morning hours, I believe, of March 20, 1970. Later that same day, from information furnished to Chief Strom by his undercover agent Weatherford, Weatherford and Bursey were arrested on the campus of the University of South Carolina, charged with the crime of malicious destruction of personal and real property, a statutory crime under the Law of South Carolina. Both were jailed on the same charge and Weatherford soon thereafter was released through an arrangement made by Strom and Bursey stayed in jail, I believe, for some 12 days before he was enable to put a bond and obtained his release. Thereafter, and I think the record is clear on this with certain testimonials, although there was not a specific finding of fact by the trial judge on this particular point. It was decided and it was desirable from the State’s viewpoint to have the undercover agent, Weatherford continue as an undercover agent on the University of South Carolina Campus as long as he could because he was a valuable man according to the testimony and at that time, I believe, the testimony is that he was the only agent, only undercover agent on the University of South Carolina campus in the employ of SLED. It would have been impossible with the very close relationship between Weatherford and Bursey, for Bursey to have been -- to reveal himself it would have been impossible for him to do anything unusual without raising very great suspicion. And in order to see that Weatherford was not forced to deal with Bursey’s lawyer or he was not forced to make an explanation as to why he did not wish to be represented by Bursey’s lawyer, an explanation that would hardly have been plausible, the State Solicitor John W. Ford arranged which was admittedly a false arrangement for one before a local attorney, Frank Taylor, in Columbia a well-known attorney to pose as Weatherford’s attorney in this particular charge.
Potter Stewart: The State Solicitor that was here, a county or state official?
J. C. Coleman: He is a circuit solicitor and the particular circuit he serves has two counties in it. South Carolina has 16 different circuits varying in size, from two counties to five.
Potter Stewart: He was the prosecutor though?
J. C. Coleman: He was the prosecutor.
Potter Stewart: More like of a county prosecutor or district attorney except his jurisdiction was two counties?
J. C. Coleman: That’s correct. Under South Carolina Law, he is entitled as Solicitor although it is the --
Potter Stewart: I just want to be sure about I understood what his office was.
J. C. Coleman: Yes. He arranged for this false representation or dummy representation, however, it might be put by Attorney Taylor of Weatherford and that’s admittedly for the purpose of maintaining Weatherford’s cover. Thereafter, both men went about their normal life with the exception or the inclusion whichever it might be, of two meetings. There’s some mention of maybe a third meeting but no particular testimony with regard to the details. I think the testimony read as a whole indicates there were two meetings at which Bursey was present, his attorney, Mr. Wise from Greenwood, South Carolina approximately 70 miles from Columbia was present and of course, Weatherford was present.
Potter Stewart: And Bursey is now out on -- released on bond, pending trial?
J. C. Coleman: He was released on appeal bond, yes, Your Honor.
Potter Stewart: An appeal bond?
J. C. Coleman: Not an appeal bond, I beg your pardon, but on bond --
Potter Stewart: Pending trial.
J. C. Coleman: -- to prepare for trial.
Potter Stewart: -- before trial.
J. C. Coleman: Was on bond I think $12,500.00.
Potter Stewart: And Weatherford also purportedly out on bond or --?
J. C. Coleman: Purportedly out on bond. That was admittedly not a true situation. There were two meetings involving the plaintiff Weatherford or the plaintiff Bursey, Weatherford and Bursey’s attorney, Wise, one was at a party at Bursey’s house, I believe it’s described as an ACLU party, it makes no difference except that it was a social event. And during the course of that social event, I believe the testimony is that Weatherford and Bursey and Bursey’s attorney, Wise got away from the majority of the crowd somewhere out in the field somewhere and did go into a discussion of this particular case. There’s a finding of fact by the Circuit Judge that Weatherford never did categorically and specifically denied that he was an agent. There was quite naturally in a case like this, there would be and there was in this case, a general discussion between the three as to whether or not an informer or undercover agent or something of that nature might be involved in the case. There was some discussion by Weatherford of that in response to discussions by the other two. Weatherford I believe did state upon, maybe on that occasion or maybe in another, but he did state that he would not testify in the case against Bursey. That would normally come up because I think in every criminal case involving multiple defendants, there’s always a question of whether one is going to be approached by the authorities and asked to tie-in State’s evidence in a plea bargaining situation and Weatherford denied that, I think it was necessary that he do so. He had to do that or either state that he was going to testify and had he made such an assertion as that, I’m quite sure that his cover would have disappeared completely and he could no longer have operated as an undercover agent on the campus. And I think that’s true whether or not Bursey and his attorney might have deducted from that fact that Weatherford was an agent. His effectiveness, certainly, would have disappeared whether he was an agent or whether he simply was going to testify to save his own skin at the trial. I think it’s clear that this meeting was without question, arranged by Bursey. It was not sought out by Weatherford. Not in any degree and with the closeness, the close personal relationship of these two men, it would’ve been impossible for Bursey to avoid such occasional contacts as these. I think rather than being against Weatherford, it’s rather to his credit that he limited such meetings to only two during these nearly four months period between the time of the crime and the time of the trial. Now the only other occasion, as I recall the evidence, that there was a meeting between the three, that is Weatherford, Bursey, and Bursey’s attorney, was on an occasion that was brought about entirely by Bursey and his attorney Wise. The testimony shows that, and their own testimony shows that they came to Columbia without having made prior arrangements, not even giving prior information to Bursey that they were coming, I mean, to Weatherford that they were coming and went to Weatherford residence and he was not there. They guessed that he might be at the house of a friend of Weatherford, went there and as it turned out, he had been there and would return very soon and did return.
Warren E. Burger: Let me interrupt you in just a moment, Mr. Coleman, if I may. I take it you’re going to devote some time to telling us, or suggesting that even assuming that there were constitutional or other violations which would’ve led to --supported a reversal of the conviction, there is no basis for a civil action for damages?
J. C. Coleman: Yes, Your Honor.
Warren E. Burger: You’re going to get to that.
J. C. Coleman: Yes. And I will very, very quickly. I was simply going over these facts to support really our first proposition that these circumstances do not constitute an intrusion at all, that there was no intrusion, that there was a presence by Weatherford at these two conferences, there were necessary presences. They were necessitated by a legitimate state interest of the State to maintain Weatherford’s cover and of course his own legitimate interest to maintain that cover plus the fact that there was some fear in some people’s minds that his life might be endangered if his cover had been blown at that point. Now, the Fourth Circuit does hold as I read it, that the mere presence of Weatherford at these attorney-client meetings constituted a per se Sixth Amendment violation of the effective assistance of counsel and the Black and O’Brien cases are cited as authority for that proposition. The Coplon and Caldwell cases from the District of Columbia Circuit are cited in support. We do not agree that Black and O’Brien stand for such a per se proposition. As far as this particular point is concerned, that is the violation of the constitutional right to effective assistance of counsel, I can’t see or I stand to be corrected that it makes a lot of difference whether this Court sent those cases back simply for a hearing on whether or not there was damage of prejudice or whether they sent them back for a new trial really for the same purpose and I think it’s the same thing, insofar as this particular point is involved.
Potter Stewart: The only technical difference as I remember was that the Court as such set aside the convictions and Mr. Justice Harlan and I would not have done so, and would’ve allowed the trial judge to make a determination of whether or not there was any taint and allow him in his discretion to set aside the convictions if he found that there was taint, but I think you’re right
J. C. Coleman: That an invalid (Inaudible) , yes sir.
Potter Stewart: But in any event -- at most that was even what the Court did was for a set aside of the convictions and then for a determination of how much if any taint there had been of the Sixth Amendment right to counsel?
J. C. Coleman: That is exactly our point that Black and O’Brien are simply not support of the --
Potter Stewart: For any per se rule?
J. C. Coleman: For any per se rule. Yes sir, exactly.
Potter Stewart: Because it had been conceded that there had been electronic surveillance in the one case, did both cases involve electronic surveillance?
J. C. Coleman: I think one case involved the intrusion of a police agent of some description.
Potter Stewart: And the other was electronic surveillance in one of the Washington DC Hotels.
J. C. Coleman: I believe that the Black case was involved in electronic surveillance yes sir, and of course, I think both Coplon and Caldwell did involve electronic surveillance cases. We submit further that the facts of the Coplon, Caldwell cases and the O’Brien and the Black cases are so forth different from the facts in this Bursey case as to make them inapplicable in any event. In those cases, there was a deliberate, admitted, affirmative intrusion by the Government on the attorney-client relationship. It was certainly not necessitated by any legitimate governmental interest as we think the case is in Bursey.
Thurgood Marshall: What’s the governmental interest here in having this man sit down at the conference between lawyer and client?
J. C. Coleman: Justice Marshall, we do not claim that as being a legitimate state interest. We simply say that the --
Thurgood Marshall: Well, how do you defend it?
J. C. Coleman: We say that the maintenance of the identity of the agent Weatherford or the maintenance of his cover was the legitimate state interest.
Thurgood Marshall: And that’s sufficient to override a federal constitutional interest?
J. C. Coleman: Well, we think of course the federal constitutional issue is there, but we say that --
Thurgood Marshall: Couldn’t they have said that you may maintain your cover, and just pick a fight with him and say you don’t want to talk to him anymore?
J. C. Coleman: That of course could’ve been done, sir.
Thurgood Marshall: That’s right. He didn’t have to sit down twice, not once, twice?
J. C. Coleman: However, as you say, it is our position that this was necessary in those circumstances to --
Thurgood Marshall: Just like putting a spy camera in the wall of the Garden Hotel was necessary on the Black case.
J. C. Coleman: No, sir I can’t agree with its analogous although I see your point.
Thurgood Marshall: This is not the only agent that they have in the South Carolina, isn’t it?
J. C. Coleman: Not is South Carolina, as I understand it. However, and as I remember --
Thurgood Marshall: How long had he been an agent?
J. C. Coleman: Oh! Short of a year or something like that.
Thurgood Marshall: I don’t think as some others could’ve done it?
J. C. Coleman: Yes, there could’ve been another agent.
Thurgood Marshall: I mean, rather than to sit to and do what you say, you admit that it was wrong?
J. C. Coleman: I admit that I would’ve done it. I can’t say it was wrong in those circumstances.
Thurgood Marshall: It’s not wrong for the Government to have a government agent sitting down at the conference between a lawyer and a client?
J. C. Coleman: I cannot say that I feel that that is --
Thurgood Marshall: Well, let’s say is it immoral?
J. C. Coleman: Not in those circumstances?
Thurgood Marshall: Is it dirty cool?
J. C. Coleman: Not in my opinion in those circumstances.
Thurgood Marshall: Is it good?
J. C. Coleman: I don’t think it’s good. I wouldn’t consider it good. No, sir. I, however, think it’s necessary sometimes. Well, I think it’s necessary. Unfortunately, of course, the use of undercover agents is necessary in police work, I feel and I do feel that what was done in this case was necessary and that it did not and cannot be characterized as the Petitioner -- as the plaintiff below Bursey has attempted to characterize it as a deliberate effort on the part of the State of South Carolina to mislead Mr. Bursey. It was not that. It has no – there’s no possible way that it can be characterized as that, as I can see it.
Warren E. Burger: Mr. Coleman, I come back to my apparent point. You’ve used 22 of your 30 minutes and you haven’t got to the question of whether assuming all these things, there is a damage action available?
J. C. Coleman: Well, the only case cited by the Fourth Circuit in support of the rule that there would be a damage action is the, I believe, Via against Cliff from the Third Circuit and that case is reported in support of the Fourth Circuit’s holding that there can be a 1983 action, even though there might not be a provable damage to the defendant, to the criminal offender in the case.
Potter Stewart: That was cited at the District Court level and not on the papers, not on a motion, but after the trial, wasn’t it?
J. C. Coleman: That’s correct, sir.
Potter Stewart: And then the judgment was for the defendants?
J. C. Coleman: The way it was for the defendants. I think however --
Potter Stewart: Although that was reversed by the Court of Appeals?
J. C. Coleman: I think that’s correct.
Potter Stewart: So, there has been no assessment of damages or anything like that?
J. C. Coleman: No, sir. I believe that’s correct. In that case, however, the Court said that what was done there, of course, was not an intrusion into the client-attorney relationship. It was, I believe, an action by a prison head and some guards to cut off prematurely a conference between a murder defendant, I believe it was, and his attorney and it was alleged there that that was an unlawful, unconstitutional interference.
Warren E. Burger: But going back to Mr. Bursey’s situation, were all of these claims which are made as a basis for the 1983 damage claim available as challenges to the validity of his conviction originally?
J. C. Coleman: I don’t know when -- yes sir, they would be because Weatherford was the very first witness and of course, at the criminal trial.
Warren E. Burger: Where Bursey was convicted?
J. C. Coleman: Bursey was convicted.
Warren E. Burger: And he took no appeal?
J. C. Coleman: He took no appeal.
William J. Brennan, Jr.: Well, he fled the State actually.
J. C. Coleman: I beg your pardon, sir?
William J. Brennan, Jr.: He fled the State, didn’t he?
Warren E. Burger: He was a fugitive?
J. C. Coleman: Oh, yes. He did fled the State after his conviction. He filed an appeal bond and was released and thereafter fled the State and was not apprehended for approximately two years.
Potter Stewart: But then he did come back and serve his sentence?
J. C. Coleman: He was apprehended, came back to serve his sentence and then after that --
Potter Stewart: He did not appeal as the Chief Justice suggested?
J. C. Coleman: Did not appeal his criminal --
William J. Brennan, Jr.: Could he have appealed when they brought him back after his two years--?
J. C. Coleman: I think not, sir. I think the appeal time would have expired then. However, he didn’t flee immediately. There was ample time and I think the record will show this testimony that appeal was discussed between Mr. Bursey and his attorney and it was decided by the attorney that the appeal would be fruitless and therefore, that it would not be made.
William H. Rehnquist: You didn’t plead a res judicata or collateral estoppel in your pleadings in the District Court?
J. C. Coleman: No, we did not Sir.
Byron R. White: And there still proceedings to go in the District Court?
J. C. Coleman: Well, --
Byron R. White: With respect to qualified to immunity?
J. C. Coleman: The Fourth Circuit has remanded it.
Byron R. White: Yes. So, that an immunity claim, a good faith immunity claim is still open to you?
J. C. Coleman: The Fourth Circuit indicates that the other defenses not originally raised might be open.
Potter Stewart: Might, but you said it was?
J. C. Coleman: Yes, I believe so, yes sir. I would hope that that is an explanation of our position on that particular point. The other big question of course with the fair trial issue and the Fourth Circuit rule as we understand it that the simple neglect of the state to inform the defendant Bursey or his attorney that there was an eyewitness in the case which had not been previously known, was sufficient in itself to constitute unfair trial and violation of the constitutional right and of course would have supported a reversal of the conviction.
Warren E. Burger: Well, I take it, to your position or the state’s position is that the only remedy that Mr. Bursey had was to take an appeal under and then perhaps if he got his conviction reversed upon these grounds then he might conceivably have a different course of action from the one the Fourth Circuit is now --
J. C. Coleman: That is certainly a possibility. I have not thought out that process to the point of taking that prima position. We are on that position of course, that’s number one. Number two is that even if he had, and could show a violation now and that the action has been brought, we took the position in the Circuit Court, that it did not state a course of action and of course, that was overruled by the Circuit Court. The third issue decided by the Court which I wish to get to very briefly is the liability of Chief Strom as opposed to that of Weatherford. It’s clear, I think, that the defendant Strom did not know that Weatherford was actually attending conferences between Bursey and his attorney. He did know and he did order, of course, the maintenance of the cover in that he was fully aware of the fact that Weatherford was going about his business and had not revealed these things to Bursey. But the record is clear that he did not know that there was any conference between Mr. Bursey and his attorney and we feel that the Fourth Circuit was clearly in error in ruling that he either did know it or should have known it in those circumstances. We think the Fourth Circuit puts the knowledge of Strom on the wrong set of circumstances. It puts the knowledge of Strom on the fact that there was a maintenance of the cover when it’s clear that there was no knowledge on the part of either Strom or the Solicitor Ford, for that matter, that there had been attorney-client attendances by Weatherford.
Warren E. Burger: Thank you, Mr. Coleman. Mr. Frey.
Mr. Andrew L. Frey: Mr. Chief Justice and may it please the Court. Reading through the briefs of this case and the opinions below, one is struck by an almost schizophrenic character that the case has assumed. It has in effect three different faces. First, is the case described in the findings and conclusions of the District Court. Central among them are the findings that the State’s motive in allowing petitioner Weatherford to proceed as he did, was to protect his cover, so that he could continue investigations of other matters. Secondly, that the State initially hoped to make its case against respondent without Weatherford’s testimony and that the decision to call him as a witness at trial was a last minute decision by the prosecutor. Third, that Weatherford’s role in the conversations with respondent and his lawyer was limited, involved no attempt to secure defense strategy information and entail discovery of little that was surprising or highly significant about the respondent’s defense strategy. And fourth, that no information acquired by Weatherford during these meetings was conveyed to the prosecutor. And the second case is that perceived by the Court of Appeals which accepted virtually all of the facts found by the District Court but applied a radically different legal analysis.
Potter Stewart: Including the facts or those basic facts you just stated?
Mr. Andrew L. Frey: Yes.
Potter Stewart: Those were accepted?
Mr. Andrew L. Frey: They were all accepted yes, but substituting certain per se requirements for the balancing of interest approach that the District Court took. And the third case is that of painted by respondent in his brief in this Court. The case is malevolent contrivance by the State to spy upon and sabotage his defense. Our position in this case is based essentially on the facts found by the District Court. And our concern in this case is with the legal principles announced by the Court of Appeals to govern those facts. Accordingly, I will not address at any length the factual controversies with which this Court is confronted except to make two observations in passing. The first is that, it seems to me difficult to sustain the notion that petitioner’s actions in this case were motivated to any significant degree by an attempt to secure advantage over respondent in his prosecution. With petitioner Weatherford’s testimony available, the State’s case was secure and it’s difficult to perceive as a practical matter how the state could’ve imagined it would strengthen its case by nondisclosure of Weatherford’s status. The second point seems to me quite ironic in light of respondent’s present posture in this case. The disclosure of Weatherford’s status as an agent of the State Police, far from helping respondent’s defense was fatal to it. Respondent’s best hope of acquittal lay in a decision by the prosecution to maintain Weatherford’s cover past the trial, rather than to reveal his status by allowing him to testify. Had Weatherford done what respondent now insists he should have done, the hopes for a successful defense would simply have been dashed sooner than in fact they were in this case.
Potter Stewart: And that is had he maintained his cover?
Mr. Andrew L. Frey: No, had he not maintained his cover and --
Potter Stewart: He did not maintain --
Mr. Andrew L. Frey: -- had not said to Bursey, “I’m an agent. I’m an informant and I’m going to testify at trial,” but had he maintained his cover as respondent now argues, he should not have done or attempted to do at all, had he maintained his cover through the trial, the respondent had a hope of acquittal and that was respondent’s trial strategy, so to speak. Now, turning to the legal questions, we disagree with two central ingredients of the Court of Appeals’ holding. The first is the adoption of a per se prohibition.
Potter Stewart: Let me just ask you this just before you leave that, I think I read in the briefs that he, ultimately at the trial he pretty well admitted his implication, that is Bursey did?
Mr. Andrew L. Frey: Yes, he did.
Potter Stewart: He did not plead guilty, did he?
Mr. Andrew L. Frey: No, he didn’t. He denied the requisite malicious intent that was an element of the offense under the statute.
Potter Stewart: But did concede his participation in the (Voice Overlap) episode?
Mr. Andrew L. Frey: Yes, as indeed seemed inevitable in the face of the prosecution’s evidence. The first part of the Court of Appeals’ holding to which we object is the adoption of the per se prohibition upon contact of any kind between undercover agents or informants and the defense even where such contacts come about because of an effort to maintain an agent’s cover. The second holding with which we disagree is the requirement that the prosecution reveal in advance of trial the identity of an undercover informant who would plan to use as witness at trial. Now, I might say Justice Marshall that in our assessment of the case, we don’t think that Weatherford was wrong in attending the meeting. We think it would’ve been desirable had that been avoidable and certainly, we think it would’ve been wrong for him to take any affirmative steps to insinuate himself into the defense camp. But confronted, as he was, with an unexpected situation, where respondent’s lawyer asked if he could interview Weatherford which was the substance of at least one of the meetings, it seems to me that even the need to maintain the cover which the District Court found was the motive in acting here, it was not improper for Weatherford.
Thurgood Marshall: (Inaudible) so much difficulty with this need to maintain cover which was gotten rid of?
Mr. Andrew L. Frey: Well.
Thurgood Marshall: It always leads to cover until they got this information and then after that, they didn’t need to go there --
Mr. Andrew L. Frey: Well, I don’t think it’s accurate to say that they got the information. This is an important part of the case is that they got, they being the prosecution got no information.
Thurgood Marshall: Facts are that one, they wanted to keep the cover. Two, because they wanted to keep the cover, he sat down in the meeting between Bursey and the lawyer. Three, that when he got the time of trial, they decided they didn’t need to cover, those are the facts?
Mr. Andrew L. Frey: Well, those are some of the facts the District Court found that the reason that they didn’t need the cover or the reason that they elected to abandon the cover which is really what happened, was a fear that the cover had been blown by independent incidents. In any event the decision about the cover and about whether to call Weatherford as the witness was made by the prosecutor in the findings of the District Court are unequivocal and I think supported by the record that the prosecutor was not aware of any of the contacts between Weatherford and Bursey or Bursey’s attorney. When he made the decision, these were two independent events.
Byron R. White: Mr. Frey, what if the government had asked the agent on the stand to testify as to what happened at the meetings between the defendants and his lawyer and that the question was and the information he wanted was clearly relevant to guilt?
Mr. Andrew L. Frey: I think that would probably be inadmissible.
Byron R. White: Why?
Mr. Andrew L. Frey: Well, in terms of our analysis, there are two ingredients in a possible Sixth Amendment or Due Process, I’m not sure what the ground is, it’s violation for intrusion into defense --
Byron R. White: You say it’s inadmissible and it has to be and it would be inadmissible because of some constitutional reason?
Mr. Andrew L. Frey: I think, yes.
Byron R. White: When did the constitutional violation occur?
Mr. Andrew L. Frey: The constitutional --
Byron R. White: When the evidence is offered or when --
Mr. Andrew L. Frey: It occurred when the evidence is offered. I mean, that was certainly true in Massiah where the constitutional violation that was found by the Court there was not in conducting the further investigation of the offense, but in using in evidence against the defendant at trial, his statements made in a period pre-trial, port indictment and pre-trial period.
Byron R. White: But the violation is rooted in sitting in the defense counsel?
Mr. Andrew L. Frey: Yes, but it’s not because the sitting in is itself a violation of standing alone in our view. It’s because the utilization by the prosecution of any fruits of that activity would be a violation.
Byron R. White: That is your fundamental position in this case, I take it.
Mr. Andrew L. Frey: I think. Well, our position is twofold.
Byron R. White: But that’s one of the --
Mr. Andrew L. Frey: There are two.
Byron R. White: That’s the end of the case, if you’re right, I suppose?
Mr. Andrew L. Frey: Well, that’s not necessarily the end of a civil case. The point that the Chief Justice made which I don’t believe (Voice Overlap) was raised in the petition. That would be the end of the trial. You wouldn’t have to have a new trial at which that evidence was excluded, I think.
Warren E. Burger: Well, at page 49 on your brief, which is near the end as you are near the end of your time of argument, you’ve said that Weatherford’s testimony at trial is not an appropriate source of civil liability. Are you going to discuss that subject?
Mr. Andrew L. Frey: Well, that --
Warren E. Burger: The State did not seem to be much interested?
Mr. Andrew L. Frey: Well, I had not. We addressed that in the brief because we felt that this was a consideration of which the Court should be aware in evaluating this case. I don’t understand that it has been an issue presented by the Court or claim raised by the State so far in the proceedings. I’m not clear on whether or not the State can raise it. Let me just say and it’s not a matter that it is a central interest to the Federal Government in this case, but it seems to me that whether there is a civil action depends upon what the violation was. If the violation was sitting in the meeting as in Bivens case, the violation is the illegal search and seizure itself then I think an independent civil action would lie regardless of what happened in the criminal trial. If on the other hand, the violation was trial related, and had to do with the introduction of the evidence at trial then in our view the defendant’s failure to take measures that were available to him at that time might foreclose his action and certainly would reduce his damages materially.
Warren E. Burger: When you say take measures, you mean take an appeal from his conviction?
Mr. Andrew L. Frey: Well, the first object to the introduction of this evidence, object if it was improper for Weatherford to testify at the trial, the defendant could’ve objected. Had the objection been denied, he could’ve appealed And indeed in this case, I believe, the District Court found that even after he was recaptured, he had a post-conviction relief available under South Carolina law.
Byron R. White: Mr. Frey, unless the violation occurred at the time of the meeting, why would the agent ever be liable for what happened at trial? He was called by the prosecution.
Mr. Andrew L. Frey: We suggest in our brief, he would not be.
Byron R. White: He’s called by the prosecution and he’s under an obligation to testify.
Mr. Andrew L. Frey: Yes, we suggest that as long as he gives truthful testimony, at least, he’s absolutely immune from liability.
Byron R. White: Unless, there’s a violation at the time of the meeting.
Mr. Andrew L. Frey: Well, yes. For that, he would be liable. This is somewhat beside the points that are central concern to the Federal Government in this case. Now, we have no doubt that the constitution affords substantial protections to the confidentiality of relations between a criminal defendant and his attorney, and that this extends to many facets of defense strategy planning. But we can agree that this right of confidentiality is so sweeping as to prohibit virtually any contact between government agents and the defense regardless of the government’s reasons for permitting a situation in which such contact comes about, regardless of the nature of the contact, and regardless of the impact that the contact actually has upon the fairness of the criminal trial. So, when the Court of Appeals stated that it was of no consequence that the intrusion here was not for the purpose of information, but was to maintain Weatherford’s cover, we think it unjustifiably slighted important societal interest in protecting the flow of information about crime to law enforcement authorities and the safety of undercover agents and informants. And we’ve argued in this case that certain critical factors must be examined in determining whether a Sixth Amendment violation has occurred. The most important of these is whether the so-called intrusion into defense counsels is active or passive. A violation should be found in our view, whenever there’s been a deliberate effort to penetrate the defense camp, so that the prosecution may acquire defense strategy information that can aid it its adversarial struggle. This is hopefully a --
Warren E. Burger: What kind of a violation are you addressing now?
Mr. Andrew L. Frey: Well, I think that would be the situation I think Caldwell and Hoffa were dealing.
Warren E. Burger: Is it a constitutional violation?
Mr. Andrew L. Frey: A constitutional violation; I am not -- I am a little uneasy about resting it on the Sixth Amendment and I have to hark back to cases like Herring and in Faretta where the Court is somewhat divided on whether what the roots of some of these rights are. But I do think it would be constitutionally impermissible for the prosecution in this manner to invade the defense camp. Now, a violation also may occur when there has been an actual acquisition by the prosecution by whatever means of defense strategy information, and Coplon and Black are examples of this. Now, I haven’t very much time remaining but I want to make a couple of points that have come up in their briefing. One is the notion that the Court of Appeals fear to entertain that the undercover agent is a member of the prosecution. I think that notion is wrong in the context of this case. Respondents cites a number of Brady type cases and those are cases where I think the notion of the prosecution being held responsible for knowledge of the police is far more appropriate because those are cases in which what is at stake is a direct impact on guilt or innocence by the withholding or the availability to the defense of evidence. Now, this is not a case of that sort and it seems to me that if the Court can find in fact that a barrier has been established, a quarantine around the agent’s contact with the attorneys and that is not been transmitted to the prosecution at any form that it could be utilized, there would be no violation. I also think that the reasons for whatever per se rule there may be in Black and even O’Brien don’t extend to this case, first of all, there’s a distinction between cases that involve intrusions in cases that involve prosecution access to defense information and these cases are discussed in respondent’s brief and many Court of Appeals cases. I think what one can distill from these cases is that where the prosecution has acquired defense strategy information, and when this fact does come out until the trial is ended and therefore can’t be explored in the context of the criminal trial itself, the remedy has been to order a new trial and that’s what happened in Black at least and a number of the other cases. Now, on the other hand, where there’s been an intrusion, but there has not been established that information has reached the prosecution and the prosecution may thereby have gained an unfair advantage in the trial process itself, there has been not a per se rule but an inquiring into prejudice. We think this is a case on the findings of the District Court where you have the intrusion perhaps but not the unfair prosecutorial advantage that has been gained. Now, I just want to comment then briefly, if I have a minute left, on the second point decided by the Court of Appeals, which is the just the duty imposed upon the prosecution to disclose the identity of an undercover agent. Now, Brady which the Court principally relied on is plainly inapplicable. This is not an exculpatory evidence case. The holding of the Court of Appeals in this case amounts in our view, logically can only mean that any damaging exculpatory evidence must be produced by the prosecution in advance of trial. The policies to which the Court of Appeals referred which are set forth at page 262 of the appendix are first to consider whether plea bargaining might be the best course. Well, I’m sorry I seem to have run out of time. Thank you.
Warren E. Burger: Mr. McDonald.
Laughlin McDonald: Mr. Chief Justice and may it please the Court. I concur in Mr. Coleman’s observation and I agree that the District Court made no direct finding that there was a need for cover in this case and I think that a review of the record will conclude independently that as a factual matter, there was no need for cover and Strom himself testified on several occasions during the federal trial precisely to that effect. The District Court judge at one point asked Chief Strom whether or not there was anything that Weatherford was working on that would require the maintenance of his cover following Bursey’s arrest and Strom said that there was nothing that he was working on. And Strom in response to questions from counsel on cross-examination stated that, furthermore, he was fundamentally unconcern about his agent’s cover being blown. And the reason he was unconcerned was that he doubted whether Weatherford could be effective after the arrest of any of them. There is also a suggestion in the brief of the Solicitor General that there was some concern about the agent’s life or that he might be done physical injury, Weatherford certainly never indicated that he was in fear for his life or that that was the reason his cover was being maintained. In point of the fact, Strom offered him protection and Weatherford declined the offer and moreover, had Weatherford’s position as a law enforcement agent been truly compromised, then he never would’ve been offered the job by Strom and never would’ve considered that he himself could’ve accepted such a job and still been an effective law enforcement agent.
Warren E. Burger: When was this offer of protection given, after he testified or before?
Laughlin McDonald: I believe that’s correct sir.
Warren E. Burger: Which is it, after or before?
Laughlin McDonald: I think it was after he testified, Strom offered him a job of so-called “above the ground” kind of agent, to use Weatherford’s phrase, and he declined. He decided to pursue graduate studies instead. But Weatherford himself said that he felt in time, he could be effective as an agent in almost any other capacity. But Strom’s testimony was quite explicit. There was nothing that Weatherford was working on. I think the argument really is one of the generalized convenience rather than any demonstrated need and of course, the District Court made no specific finding in that regard. Not only does the record not substantiate that there was any need, but the record really doesn’t show that Weatherford did anything other than what he did in this case, it could be concede of as a benefit to law enforcement. There was, for example, evidence in the record that he participated in vandalism at the administration building of the University of South Carolina. That he went to Atlanta, Georgia. I can’t conceive why his state law enforcement duties would take him there but nonetheless, he went there to interview about going to Cuba “to check up on radicals,” to use his phrase, but he never made a single arrest as a SLED agent. He testified in only one trial and that was Mr. Bursey’s trial and he could not remember a single assignment which he had been given which led to a conviction other than Bursey’s. So, I think that to the extent that an argument of law enforcement need has made here completely collapses. But even if there was a need for cover, I think that the decisions of this Court clearly indicate that that State interest can never be exerted over a defendant’s right to the effective assistance of counsel and fair trial. One of the reasons that is true is because there are other less intrusive ways for a State to protect its legitimate interest in secrecy, if in fact, it had one. One way, as this Court knows would be simply to forgo prosecution, but Strom himself suggested another way in which this problem could be solved and that is he simply would’ve taken his agent off the case. As a matter of fact, Strom himself conceded that what had happened in this case was in his judgment a violation of the constitution and he also said that it was unethical. Of course, he said that he didn’t know that intrusion was taking place.
Warren E. Burger: How, in your view, did the testimony of Weatherford, testimony now, not anything that preceded it cause a damage, an actionable damage to him?
Laughlin McDonald: Well, Your Honor, the gist of our complaint is that there was an interference with the right to counsel prior to trial and that there was a creation of surprise --
Warren E. Burger: To what did he testify, Weatherford?
Laughlin McDonald: He testified about what was done at the Selective Service Board itself.
Warren E. Burger: He was an eyewitness of the event, was he not?
Laughlin McDonald: That’s right, sir.
Warren E. Burger: Now, did he testify to any facts which he learned after the events based in the indictment?
Laughlin McDonald: The answer is no. He didn’t reveal any attorney-client confidences during the trial of the case. I think the record doesn’t reflect that.
Potter Stewart: He didn’t testify falsely, did he?
Laughlin McDonald: We don’t attack his testimony in this civil suit, Your Honor.
Thurgood Marshall: He didn’t testify as eyewitness, testified as fellow participant, didn’t?
Laughlin McDonald: That’s right. Oh, he was a participant. Yes, sir. There’s no question about that and he also participated on the planning of it as well.
Warren E. Burger: That made him an eyewitness, didn’t it?
Laughlin McDonald: He was both. Both Your Honor.
John Paul Stevens: Mr. McDonald, I have a little trouble with the surprise theory because what difference would’ve been made if you know 10 days in advance he’s going to testify?
Laughlin McDonald: I think, one of the difference is -- well, for example he might have had a defense based on entrapment had he known that Weatherford was an agent. As you recall, there was direct testimony from the Solicitor as well as from Weatherford himself, not only that Weatherford was an agent, but Mr. Merrick also was an undercover agent. Solicitor Ford, for example, said that there was another agent and there was so many of them that he didn’t know who was working for whom, but there was an agent who was unavailable to testify and was out of the country. And there was other testimony indicating that that person was Mr. Merrick. So, we have a situation where there really were two agents involved. And I think that --
John Paul Stevens: Why couldn’t he made that decision whether to claim entrapment at the close of the prosecution’s case? He didn’t have to get on with the stand first, and the defendant had --
Laughlin McDonald: Well, Your Honor, that’s of course part of, it seems to me part of advice in allowing the State to try a case basically by ambush. I don’t think that’s --
John Paul Stevens: There’s another thought that runs to my mind. You mean you’d have to -- the defendant would not know whether or not he was entrapped until he heard the prosecution’s evidence?
Laughlin McDonald: I think that he wouldn’t know that defense was available, Your Honor. If he didn’t know the law enforcement agents were his conspirators or the persons who participated with him.
Thurgood Marshall: Do you want a pro se rule that every stool pigeon’s testimony must be revealed before trial?
Laughlin McDonald: Your Honor, we argue that a per se rule would be applicable in this case, but it’s possible for this Court to affirm the opinion of the Court of Appeals without reaching such a result because I think there clearly was constitutional prejudice here in that the Court of Appeals found there was deliberate intrusion. This was not a case of passive intrusion into defense counsel, but this involves affirmative misconduct on the part of the State. We also, I think can demonstrate --
Thurgood Marshall: What was the affirmative other than hiring his man?
Laughlin McDonald: Well,--
Thurgood Marshall: He didn’t set up either one of these meetings, did he?
Laughlin McDonald: No, he did not Your Honor but he made contact with them.
Thurgood Marshall: And they came after him, isn't that correct?
Laughlin McDonald: The meetings were, Your Honor, set up by Mr. Bursey and it is true that Mr. Weatherford was asked to join those meetings, but I think that we must understand that Weatherford was hired by Strom and his specific instructions were to infiltrate certain groups at the university and to establish contact with certain people and one of the people who was specifically mentioned, specifically talked about by the chief was Bursey. Now, he said that he didn’t point him out but he did say that he did discuss Bursey with Weatherford and he assumed that he would be one of the persons that Mr. Weatherford would investigate. Now,--
Thurgood Marshall: Chief Strom said that he knew nothing about this?
Laughlin McDonald: He said that he didn’t know that the actual --
Thurgood Marshall: He said that if he knew about it, he would have stopped. I got that in your brief, didn’t I?
Laughlin McDonald: That’s correct sir. He denied that he had any direct knowledge that agent was sitting in on the discussions, but it’s our position that in the action for 1983 that all we must establish is whether that he must be held to a standard of accepting the reasonable consequences of the things that he directed. After the arrest, his instructions remain the same to Weatherford and that is that he continue his investigation of people at the university and more importantly than that, the chief knew that Weatherford was still continuing to investigate Bursey specifically. So he knew that his agent was doing the very same things after the arrest as he did before the arrest and in point of fact, he continued that instructions. So, the chief knew that Weatherford was investigating Bursey. The chief also knew that an attorney had been appointed -- a sham attorney had been appointed to represent Weatherford and that one of the purposes of that ruse was to have somebody with whom Bursey’s attorney could talk. And --
Thurgood Marshall: And he specifically denied ever knowing about it?
Laughlin McDonald: He did specifically deny that and we of course -- and if our standard of proof, Your Honor is that we must prove that he even knew or that prosecutor was told by Weatherford, the we lose because --
Thurgood Marshall: What evidence do you have in the record to show that the chief was not telling the truth on the statement that he knew nothing of the two conferences with the lawyer?
Laughlin McDonald: Your Honor, there are a lot of things we can look at in the record to suggest whether or not the chief’s memory was actually faithful. There was continuous contact between Weatherford and the chief following the arrest. Every other week, Weatherford would go to the SLED office in Columbia and pick up his paycheck. He picked it --
Thurgood Marshall: You mean, you can assume that it -- is there any testimony from Weatherford that he talked to him?
Laughlin McDonald: Talk to the chief, Your Honor?
Thurgood Marshall: About this?
Laughlin McDonald: He denied that he talked to the chief specifically --
Thurgood Marshall: Well, you got two people who deny it. Now, what do you still have that says it did happen?
Laughlin McDonald: Your Honor, I can actually concede that if we must prove that, we lose because we can’t.
Thurgood Marshall: Well, I thought so.
Laughlin McDonald: And I think --
Byron R. White: Mr. McDonald, would you have stated that 1983 cause of action if Bursey had pleaded guilty?
Laughlin McDonald: Your Honor, without a doubt that that’s the --
Byron R. White: Or if suppose Bursey had been charged or indicted and then before trial the case had been dismissed because the prosecution didn’t think it could win?
Laughlin McDonald: I think under those circumstances, he would be entitled to recover for the constitutional violation which had occurred in the same way that the Bursey was a victim of an unlawful search and seizure even if there’s no trial, he could bring an action under 1983.
Byron R. White: So your theory is that the constitutional violation was complete and at the time of the participation in the meetings and at the trial just to put a question of damages?
Laughlin McDonald: I think that it does go to a question of damages.
William H. Rehnquist: But the right to counsel depends on the pendency of a criminal proceeding, doesn’t it? It’s not a separate and independent rights such as the Fourth Amendment freedom from unlawful searches and seizures?
Laughlin McDonald: That may be true but the right to counsel has been recognized as existing prior to a trial. So --
William H. Rehnquist: But it’s dependent on the impending trial?
Laughlin McDonald: Which there was here, that’s right, sir. Now, I think, the more difficult question, if I understand, Your Honor, is the whole question of res judicata and collateral estoppel. Let me say --
John Paul Stevens: Before you get to that, could you just tell me again exactly what the constitutional violation is assuming that the trial is unimpaired by what happened?
Laughlin McDonald: Well, the constitutional violation here was an intrusion into the Sixth Amendment right to counsel. That was a deliberate intrusion on the capture of the entire defense strategy. It was captured by someone who was an agent --
John Paul Stevens: So is it critical to your theory that there was some use made of the prosecution of the defense strategy?
Laughlin McDonald: We don’t think we have to show that, but we think that there was prejudice from the conduct of the Government here. What the Government did was it misrepresented this case. It misrepresented who the witnesses are going to be. So, that it made it impossible for the defendant to prepare for the case which is actually thrown upon it. it’s not a situation --
John Paul Stevens: Well, assuming that, does that all then depend on having some impact on the trial process, (Inaudible) misrepresented if it didn’t affect the trial?
Laughlin McDonald: Well, in Via versus Cliff is an instance where the Court found that even though there was no prejudice and no impact upon trial, that a defendant who would been denied a constitutional right would still be able to maintain an action on the 1983. In that case, the --
John Paul Stevens: Well -- well, go ahead. Excuse me.
Laughlin McDonald: -- that the prisoner was incarcerated and he was denied access to his attorney on two occasions. So after the second occasion, that was brought to the attention of the Court and there was a recess, so that as far as the trial is concerned, there was a curing of that defect, but the Court said that nonetheless, he still have an action for damages for denial of the right to counsel and an action under Section 1983. So, I think that would be an instance --
John Paul Stevens: There is the -- he denied access to counsel before trial. What was denied here before trial?
Laughlin McDonald: Well, the right --
John Paul Stevens: There’s no interference with access between the client and the lawyer?
Laughlin McDonald: We think that you have a right not to have an agent for prosecution sit in on the defense planning sessions as the --
John Paul Stevens: Even if the defense asked him to sit in?
Laughlin McDonald: Well, Your Honor, I think that that really is a question of semantics more than substance because he was there in his role as an undercover agent. His specific assignment was to infiltrate the university and more importantly and more specifically, his assignment was to get information about Bursey and he was there because that was his assignment and even after the arrest, the chief knew that he was continuing to investigate Bursey and he continued his instruction, so he was there because he’s an agent and in point of fact, that was his testimony at the State Court trial. He had long hair as informers do and he was dressed in a hippie --
John Paul Stevens: Well I understand all that, but the right is that they have a right, an absolute right not to have an informant who is concealing his identity present while the lawyer and the client are together.
Laughlin McDonald: Well, I don’t think the Court has to adopt the per se rule for Bursey to be entitled to relief for at least two reasons. Number one, there was affirmative misconduct here that rule arguably might be different if the conduct was truly passive. What we have involved here is deliberate course of activity on the prosecution which I think the Court has to be sensitive because of special role of the prosecution --
William O. Douglas: You say we have to make findings the District Court did not make then? The District Court found affirmative misconduct, didn't it?
Laughlin McDonald: Well, the District Court recited the facts, but concluded that there was no constitutional violation. The Court of Appeals found that there was a deliberate intrusion and I think there clearly was and there also was that there was a manufacturing of surprise. I just don’t think that the prosecutor can be allowed under such cases as Blackledge versus Perry and other cases the District Court talks about, the prosecutor having an interest to serve the courts of justice. I don’ think that it’s tolerable to have him go to a defendant and say, “this is the kind of case which is going to be presented to you.” These things were voluntarily. Weatherford himself stated and it was the lies, what it was, the deception, he said that he was not going to testify. He said he was not going to be at the trial.
John Paul Stevens: Was it untrue at the time he made the statement?
Laughlin McDonald: He was. he knew from the very beginning, Your Honor that he would be a witness and his testimony was un-contradicted in that regard.
William H. Rehnquist: I thought it was change of strategy. Isn’t there a finding in the District Court that they had originally not intended to call him?
Laughlin McDonald: I think, Your Honor, that it is true that the final decision to use Weatherford as a witness might have been made at the day of trial.
William H. Rehnquist: Well then, why did you say a moment ago that he knew he was going to testify from the beginning?
Laughlin McDonald: He knew, he said, that it was always a possibility that he would be a witness.
William H. Rehnquist: But that isn’t quite the same thing as saying, he knew?
Laughlin McDonald: I think, Your Honor, that he knew that that was a possibility.
William H. Rehnquist: Well, those are --
Laughlin McDonald: This is what I’m saying.
Lewis F. Powell, Jr.: Mr. McDonald, there’s an expressed finding, it’s at the bottom of page 30 on the petition that Weatherford did not know he would be used as a witness in the criminal action and Solicitor Ford had not decided until just prior to the call of the case that he would use Weatherford as a witness, did he say that?
Laughlin McDonald: Your Honor, I’m not trying to say anything that’s inconsistent with that. I agree that the final decision to use him was made at the day of trial, but all the parties knew that it was a possibility that he would be a witness. Weatherford testified to that effect and so did Strom. Strom said that in all, you have so called big cases where you use an undercover agent, it’s simply implicit that that person at some point may very well be a witness and Strom said, “There’s no big deal, you let him testify, the cover is blown then you give him a job as another agent.” So, I think that it’s not correct to say that it was not implied in the whole -- (Voice Overlap)
Lewis F. Powell, Jr.: Your statement implies that he knew all the time he would testify?
Laughlin McDonald: But Your Honor, if I said that I misspoke myself. What I mean to say, is that he knew that it was a possibility.
Lewis F. Powell, Jr.: In your brief, among other things, you say that the prosecution was able to discover the complete defense strategy by these tactics. Is any support in the findings of the District Court about that statement?
Laughlin McDonald: Well, the Court of Appeals of course, found that Weatherford did have knowledge of the defense tactics and I think that --
Lewis F. Powell, Jr.: Any indication in the findings of either Court that the information you referred to was revealed to the prosecution?
Laughlin McDonald: There is not, Your Honor. I use the phrase prosecution because the District Court found that Weatherford was an agent of the prosecution and it assumed that when I use the phrase “prosecution,” it presupposes that we assume as did the Court of Appeals that Weatherford is to be regarded for purposes of finding a constitutional violation as a member of the prosecution. As I say, if we must prove that the prosecutor knew about what happened in defense counsel then we lose because we can’t, because we depend, in order to establish that kind of proof of what amounts to a confession of wrongdoing from the parties that we are suing and I think realistically --
John Paul Stevens: Mr. McDonald, one thing paused me. What was the defense strategy?
Laughlin McDonald: Well, Your Honor, they knew that there were three people who actually participated in the incident at the draft board, Merrick and Bursey and Weatherford. Weatherford had already ruled himself out. He was not going to testify. As you recall, he said that his benefactor Dr. Hartwig had insisted that he talk to the police that he’d gone down the Hilton had that he had talked with them --
John Paul Stevens: Well, I just wonder if you could sum it up in a word. Was the strategy to deny the incident --
Laughlin McDonald: I am sorry. Reasonable doubt, Your Honor.
John Paul Stevens: -- police entrapment or just of an inadequate proof or what?
Laughlin McDonald: Inadequate proof and reasonable doubt, that there was no eyewitness. Merrick was out of town. Weatherford was out of the country.
John Paul Stevens: In other words, what was revealed to the prosecution then was that the defense hoped that the Government couldn’t prove its case?
Laughlin McDonald: Yes, Your Honor. That’s what [Laughter Attempt] they were going with reasonable doubt.
Potter Stewart: Was there at the time of the trial cross-examination of Weatherford as to these two meetings with counsel?
Laughlin McDonald: Very limited cross-examination, Your Honor. I think that Mr. Wise alluded to the fact that he had established contact with various people and he had a lot of friends in the movement. But I don’t believe there was any direct examination about the attorney-client meetings. In fact my recollection is that there was not. And point of fact, I think if you read the State transcript, you will see how in effect did counsel was rendered by the surprise and he himself testified that it totally changed the case and he felt that his ability to function as attorney was completely impaired. I think one can appreciate --
Potter Stewart: Well, I just, he was met by the much stronger case of the prosecution that he hadn’t anticipated, because he had not anticipated that an eyewitness would testify and one did and that’s always somewhat of a shock to defense counsel?
Laughlin McDonald: It changed other things too, Your Honor. They determined that Mr. Bursey would have to take a stand. He had -- they had ruled that average type of cases (Voice Overlap).
Potter Stewart: Well, if there’s a very strong case against the defendant he sometimes feels impelled to take the stand where he wouldn’t otherwise?
Laughlin McDonald: I think had he known about that in advance what the preparation and it is a benefit and had he known about that prior to the trial, he might have been more effective.
William H. Rehnquist: Just for continuance of that basis?
Laughlin McDonald: No, he did not.
Byron R. White: What is your specific claim of the constitutional violation by sitting it on the meetings? Is it trial strategy, learning trial strategy, or is it learning confidential, or sitting on a confidential communications between the attorney and the client?
Laughlin McDonald: Well, I think there are a lot of vices inherent in sitting --
Byron R. White: Which is it here?
Laughlin McDonald: Well, here it’s learning defense strategy, that would be when Weatherford already knew the incriminating evidence, but that could be involved or people might be concerned about evidence of other crimes or --
Byron R. White: Well, doesn’t make a little bit of a difference what you’re claiming as to whether the violation occurs at the trial or when you’re sitting down on a meeting?
Laughlin McDonald: Well, I think, Your Honor, it’s getting around again to the question of res judicata and collateral estoppel.
Byron R. White: No, not at all. Not at all. I’m just wondering what the constitutional violation is and when it occurs.
Laughlin McDonald: Well, there are different kinds of harm that could result the harm here which is twofold. It was that the defense strategy was captured and it could’ve been that it was relate to at least a member of the prosecution. We did not prove that that defense strategy had actually been related to the prosecution. But it’s clear that knowledge of an opponent’s tactics give a person quite an advantage on an adversary situation. That’s one of the --
Byron R. White: But what about the time he was sitting in, they were also planning another crime?
Laughlin McDonald: I think that would be different, Your Honor.
Warren E. Burger: You mean, that would be admissible?
Laughlin McDonald: Well,--
Byron R. White: Well, would there be a constitutional violation at that time?
Laughlin McDonald: I don’t know that the right to plan a crime is constitutionally protected in the sense that the right to plan a defense is constitutionally protected.
Byron R. White: You will suggest there wasn’t any violation there of a third party, a government agent sitting in on those kinds of conversations?
Laughlin McDonald: Well, it shows roughly now the situation that was involved in the Hoffa case. The Court --
Byron R. White: I take it under your position there would’ve been a 1983 violation in the Hoffa case?
Laughlin McDonald: Well, of course that involve the United States Government there but the Court didn’t --
Byron R. White: But it would be a constitutional violation, you’d say?
Laughlin McDonald: The Court didn’t rule.
Byron R. White: The Sixth Amendment right to counsel?
Laughlin McDonald: Had the State been the prosecuting party that may well have been that Mr. Hoffa could have an action on the 1983 for what happened --
Byron R. White: Well, I know but the Federal Government is and that if that’s a violation of a Sixth Amendment, there might be a Bivens type of action?
Laughlin McDonald: We certainly don't rule about that possibility, Your Honor. Perhaps, there could have been.
Byron R. White: Well, your theory seems to reach that --
Laughlin McDonald: Yes, sir.
Byron R. White: -- in the Hoffa case that at the time the agent was sitting in on conversations between lawyer and client, there was a violation?
Laughlin McDonald: Right, sir. If there would be a violation for the intrusion that occurred at the case at which it occurred rather than a case or prosecution, which would grow out of the criminal activity, was might have been discussed. I think Hoffa involves that the duality of situation. It clearly suggests that had Hoffa been convicted that is test to the trial that he would’ve had grounds to set aside that conviction on the grounds of intrusion and I assume that he would also have a 1983 action. The Solicitor General has raised an issue involving the general use of informers and has suggested that if the opinion of the Court of Appeals is to be affirmed in this case then it would provide a so-called “fail safe method” for detecting informants. We responded to that in our brief but let me simply add to that or direct the Court’s attention to a testimony by Strom. He indicated that the ruling of the Fourth Circuit or he testified that the present practice in South Carolina was not to allow undercover agents to participate in defense strategy sessions. He claimed that it happened in this case because he was ignorant of it but he was quite pointed in his testimony that he simply would not permit one of his agents to participate in defense consultations and he didn’t qualify his remark in the way that such instructions are qualified apparently which are given to the FBI. He stated that informer participation in defense strategy sessions it wouldn’t be ethical, it wouldn’t be legal. So that it does not appear that the ruling of the Fourth Circuit varies in any way what the present practice of the stated practice is in South Carolina. I think this fail safe argument also overlooks this fact that a person would decline an invitation to participate in defense planning sessions for a number of reasons and some of them will have nothing to do with the fact that that person was an agent.
John Paul Stevens: Mr. McDonald, let me just interrupt once more, if I may.
Laughlin McDonald: Yes, sir.
John Paul Stevens: What is the authority or the closest authority for the proposition that there’s some kind of protection, either constitution or otherwise for a “defense strategy session” other than a session which only the attorney and the client were present. I mean, we don’t have normal privilege situation but where is the source for this notion of a broad grouping that’s also protected?
Laughlin McDonald: I think there are number of cases, Your Honor which established that proposition. Hoffa for example assumed that Caldwell and Coplon had been correctly decided and in Coplon, the Court there articulated a right of a defendant to have an un-surveilled defense planning relationship with an attorney. I think that --
John Paul Stevens: Is it when the third person present between the defendant and the attorney as well?
Laughlin McDonald: Well, of course, those cases involve electronic surveillance, but the Court --
John Paul Stevens: So, those were the intrusions on the privacy of the attorney and the client. I was just talking about intrusions on the non-privacy of the attorney, the client and the third party. Are there any such cases?
Laughlin McDonald: I’m not certain I understand the question, Your Honor.
John Paul Stevens: Well, it’s easy to understand what you’re talking about when you got an attorney and a client in a normally privileged situation and there’s an intrusion on that relationship. I’m asking you what cases are that had involved a three-party situation; an attorney, a client, and a third party and then someone else intrudes. What is the source of your notion that that relationship is protected?
Laughlin McDonald: Well, I think that it would be protected by the notion that the right to confer with an attorney includes the notion to prepare a defense and preparation of defense it seems to me --
John Paul Stevens: Well, I’m not asking about the theory of the other cases that established this general notion that’s what I’m trying to --
Laughlin McDonald: Well, there are cases, Your Honor we cited in our brief involving the attorney-client privilege, which say that communications made between joint defendants and attorneys is protected by the attorney-client privilege and I should think that the scope of the protection forwarded by the Sixth Amendment would not be less than that.
Byron R. White: Let me put it to you this way. Suppose there were two people sitting in on a defense at these same meetings. One was the government agent and the other one was not a government agent at the time and never was a government agent except that the government heard that he was sitting in and he agreed to testify and he offered his testimony at the trial?
Laughlin McDonald: Well, the Sixth Amendment violation would not exist in that circumstance.
Byron R. White: Alright and then you don’t think that the information -- that the testimony of that non-agent would be excludable?
Laughlin McDonald: If he acted without informant whatsoever, I’d (Voice Overlap)
Byron R. White: You can postulate all you want, there is no connection of the Government.
Laughlin McDonald: Right.
Byron R. White: Well, then they call the agent at the same trial?
Laughlin McDonald: I think that one of the things --
Byron R. White: To testify the identical things?
Laughlin McDonald: The Sixth Amendment does apply against the Government I think is the answer to that and the Court also --
Byron R. White: Well, I know but the question is, was it a confidential meeting or wasn’t it?
Laughlin McDonald: Well, I think it’s --
Byron R. White: Or was it something that they could expect to be private or not?
Laughlin McDonald: Well, of course --
Byron R. White: Let’s say, you had two extra people in the meeting besides the client and lawyer?
Laughlin McDonald: The Court might conclude that there had been a deliberate waiver, or that there was no attorney-client meeting to intrude, or that there had been no intrusion And that was a meeting that was open to the public or that is going to complete publication of the strategy and those considerations might call for different result than the one we think is appropriate here where there was prosecutorial misconduct. There was deliberate intrusion as the Fourth Circuit found and there was also substantial interference with the right to prepare for the trial.
Warren E. Burger: Suppose that Weatherford had never attended any meeting at which Bursey’s attorney was present, and then nevertheless testified as he did here?
Laughlin McDonald: I think the Court --
Warren E. Burger: Would you be here?
Laughlin McDonald: Well, we might not be here, Your Honor. I think the Court would have to look at a number of factors if there was no intrusion --
Warren E. Burger: We wouldn’t have to look at any of them now, would we?
Laughlin McDonald: Well, there would be no intrusion under those circumstances --
Warren E. Burger: But you would’ve (Voice Overlap)
Laughlin McDonald: We would’ve been --
Warren E. Burger: You would’ve been no less surprised, would you?
Laughlin McDonald: No. I think we would’ve been much less surprise because what the Government did here is that it deliberately ruled out the very case which it presented. Had they not done that, had Weatherford not deliberately said that he was not going to be there when he knew there was a possibility that he could be there. Had he not done that then the defense could not have ruled out the possibility of this testimony but because of the very specific misrepresentations which you made, the very case that was presented was the one case which had been completely rule out.
Warren E. Burger: That being the eyewitness testimony of the fugitive presumed accomplice?
Laughlin McDonald: The testimony of Weatherford, Mr. Chief Justice.
Warren E. Burger: We’ll resume there at 1 o’clock.