IN THE CRIMINAL COURT FOR KNOX COUNTY, TENNESSEE
STATE OF TENNESSEE )
v. ) No. 86216 B
LEMARCUS DAVIDSON, )
STATE’S RESPONSE TO MOTION TO DISMISS INDICTMENT FOR VIOLATION OF
MR. DAVIDSON’S CONSTITUTIONAL RIGHTS AS A RESULT OF THE
INTERCEPTION OF ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS
Comes now the State of Tennessee, by and through the District Attorney General for the
Sixth Judicial District, in response to the Defendant’s Motion to Dismiss Indictment For
Violation of Mr. Davidson’s Constitutional Rights as a Result of the Interception of Attorney-
Client Privileged Communications and says the motion should be denied. The Defendant argues
that the interception of a letter to his attorney in this case is a per se violation of his constitutional
rights requiring automatic dismissal of the indictment without regard to actual prejudice. The
State respectfully submits that prejudice cannot be presumed in this context. In fact, the
evidence will demonstrate that the Defendant has suffered no prejudice. While the State is
mindful of the Court’s authority to fashion an appropriate remedy under the circumstances,
dismissal of the indictment would be contrary to both applicable law and the need to preserve
society's interest in the administration of criminal justice.
1. Anticipated Proof
The evidence will demonstrate that the Defendant has not suffered material prejudice in
this case. The proof will show that on or about April 23, 2008, officers with the Knox County
Sheriff’s Department pulled one incoming and three outgoing letters for Lemaricus Davidson for
closer inspection. The letters were copied and made available shortly thereafter to the Knox
County District Attorney General’s Office. At the time, neither the Knox County Sheriff’s
Department nor the District Attorney’s office were aware that a letter addressed to Defendant
Davidson’s attorney had been intercepted.
The District Attorney’s Office electronically scanned the letter into digital format along
with many other letters to or from Defendant Davidson, Co-Defendant George Thomas, Co-
Defendant Letalvis Cobbins , and Co-Defendant Vanessa Coleman. These scanned letters were
then provided to counsel for Defendant Davidson on June 28, 2008. No employees of the
District Attorney’s Office reviewed the letters at the time they were scanned.
In 2009, an employee of the District Attorney’s Office was asked to review all of the
intercepted mail for Defendant Davidson in order to determine if the mail contained any
statements by Defendant Davidson that might be introduced at trial. The employee was asked to
tab any potentially useful statements for further review by the prosecutors assigned to this case.
One page of the letter to defense counsel now in question was tabbed. Undersigned counsel
reviewed the tabbed pages from all of Defendant Davidson’s inmate letters and determined the
tabbed portions contained no information of benefit to the State. Undersigned counsel was not
aware during this review that any tabbed portions came from a letter addressed to defense
No additional evidence was directly or indirectly obtained as a result of the State’s review
of the letters. The State’s trial strategy was not altered in any way. Because the tabbed portion
of the letter in question contained no useful information, undersigned counsel did not check to
see to whom the letter was addressed. The State subsequently notified counsel for Defendant
Davidson that it would not seek to introduce any of his letters at trial.
The State was not made aware that a letter to defense counsel had been intercepted until
October 7, 2009 during a meeting with a defense counsel. At that meeting, defense counsel
furnished a copy of the letter to the undersigned prosecutor and Assistant District Attorney
General Takisha Fitzgerald. The contents of the letter were not reviewed by either prosecutor at
the meeting and have not been reviewed since the meeting. Instead, the letter furnished by
defense counsel and the original copy furnished to the District Attorney’s Office by KCSO were
sealed without further review.
2. Communication must have been made with intention of confidentiality.
Before the Court determines that a constitutional violation has occurred, the Court should
first determine whether the intercepted communication contained privileged information. Bryan
v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992). For the attorney-client privilege to apply,
the defendant has the burden of showing that the communication was made in the confidence of
the attorney-client relationship. Id. That is, not only must the communication have occurred
pursuant to the attorney-client relationship, it must have been made with the intention of
confidentiality. Id. (citing Hazlett v. Bryant, 241 S.W.2d 121, 124 (1951)). If it was the
defendant’s intention that the substance of the communication be disclosed to others, the
attorney-client privilege does not come into play. Id.
While it is certainly likely that the letter contained privileged information given to whom
it was addressed, the State is not presently aware of the contents or the purpose of the letter. If
the Court reviews the letter and determines that it does not contain privileged information or that
it was intended for a third party outside the attorney-client relationship, no constitutional
violation has occurred. See id.
3. Defendant must demonstrate actual prejudice.
The Defendant cites United States v. Levy, 577 F.2d 200 (3d. Cir. 1978) for the
proposition that no showing of prejudice is necessary when the government has improperly
interfered in the attorney-client relationship. However, the United States Supreme Court has
rejected this categorical approach and has instructed courts to determine whether actual prejudice
has occurred. See United States v. Morrison, 449 U.S. 361, 366 (U.S. 1981)(Absent
demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly
inappropriate, even though the violation of the attorney-client relationship may have been
deliberate); Weatherford v. Bursey, 429 U.S. 545, 552 (U.S. 1977)(“[W]hen conversations with
counsel have been overheard, the constitutionality of the conviction depends on whether the
overheard conversations have produced, directly or indirectly, any of the evidence offered at
trial.); Hoffa v. United States, 385 U.S. 293, 309 (U.S. 1966)(Where the government’s evidence
is not the result of illegal government intrusion into the attorney-client relationship, government
not barred from prosecution.”)
The Sixth Circuit has likewise adopted the approach that prejudice must be established
before an alleged interference of the attorney-client relationship becomes actionable. See
Sinclair v. Schriber, 916 F.2d 1109, 1112 (6th Cir. 1990) ("In Weatherford, the Supreme Court
held that in order to establish a violation of the Sixth Amendment right to counsel ensuing from
government surveillance, a claimant must not only show that conversations with an attorney
were surreptitiously monitored, but must also show that the information gained was used to
prejudice the claimant's defense in his criminal trial."). Moreover, a showing of prejudice is
required even where there is an intentional intrusion by the government into the attorney-client
relationship. United States v. Moses, 2009 U.S. App. LEXIS 15088 (6th Cir. Mich. 2009)(citing
United States v. Steele, 727 F.2d 580, 586 (6th Cir. 1984). See also, Bishop v. Rose, 701 F.2d
1150, 1156-57 (6th Cir. 1983)(Defendants are entitled to relief in connection with the
prosecution's improper use of such protected attorney-client information only if prejudice is
shown); United States v. Jones, 766 F.2d 994, 1001 (6th Cir. 1985) (same); United States v.
Griffith, 756 F.2d 1244, 1250 (6th Cir. 1985) (same); United States v. Clark, 319 Fed. Appx.
395, 400 (6th Cir. Ohio 2009)(same).
In this case, the Court may properly undertake to ascertain the extent of the State’s
intrusion into the attorney-client relationship and the resultant prejudice to the Defendant’s. See
United States v. Clark, 319 Fed. Appx. 395, 401 (6th Cir. Ohio 2009)(Trial court affirmed after it
conducted review of intercepted privileged material and determined no prejudice had occurred).
Once the circumstances in this case is reviewed, the State is confident no resultant prejudice will
be established. None of the State’s evidence in this case was directly or indirectly obtained as a
result of reviewing the Defendant’s letter to defense counsel. Indeed, virtually all of the State’s
evidence was obtained prior to the interception of the letter on April 23, 2008. Nor has the
State’s trial strategy been altered in any way as the result of the letter in question. Undersigned
counsel was not aware that legal mail had been intercepted until his October 7, 2009 meeting
with defense counsel. Subsequently, the letter was sealed without being reviewed. In short, the
proof will not demonstrate prejudice. Absent demonstrable prejudice, the Defendant’s proposed
remedy of dismissing the indictment should not be granted.
4. Dismissal of presentment is inappropriate.
While the State recognizes the Court may fashion remedies for intrusions into the
attorney-client relationship, dismissal of the presentment in this case would be highly
inappropriate under the circumstances. Tennessee appellate have faced far more egregious
intrusions into the attorney-client privilege than the Court faces in this case. Despite the serious
intrusions, these Courts have consistently found that dismissal of the prosecution would be
highly inappropriate given the importance of preserving society’s interest in the administration of
justice. The consistent approach has been to deny the prosecution the fruits of its transgression.
For example, in State v. Sullivan, 2005 Tenn. Crim. App. LEXIS 59 (Tenn. Crim. App. Jan. 27,
2005), the State intercepted a conversation between a defendant and his attorney by intentionally
increasing the volume of the audio component of a video camera located above the defendant
and his attorney at the jail. Id. The prosecutors sought to use the conversation for impeachment
purposes if the defendant testified. Id. Rather than order dismissal of the prosecution, the
Sullivan court ordered that the conversation not be used for any purpose at trial. Id. See also
State v. Turner, 713 S.W.2d 327, 330 (Tenn. Crim. App. 1986)(“Remedies for the
unconstitutional deprivation of the right to counsel should be tailored to the injury suffered.
Rarely, however, would the remedy be dismissal of the indictment. In addition, the remedy
should not unnecessarily infringe on competing interests.”). Federal courts have likewise
consistently refused to grant the extreme remedy of dismissal of the prosecution in cases of
intrusions into the attorney-client relationship. See Black v. United States, 385 U.S. 26
(1966)(New trial ordered but defendant’s request for a dismissal of the indictment denied);
O'Brien v. United States, 386 U.S. 345 (1967)(Where law enforcement officers improperly
overheard pretrial conversations between a defendant and his lawyer but dismissal of the
indictment not ordered); United States v. Morrison, 449 U.S. 361, 367 (U.S. 1981)(Dismissal of
indictment not sufficiently tailored remedy even though law enforcement met two times with a
defendant in an attempt to gain her cooperation knowing she was represented by counsel.);
Bishop v. Rose, 701 F.2d 1150, 1157 (6th Cir. Tenn. 1983)(Dismissal of indictment not required
even though government used 14 page privileged document to impeach a defendant at trial).
In light of the foregoing authorities, the State respectfully submits that dismissal of the
indictment in this case would be highly inappropriate and insufficiently tailored given the
interests at stake.
WHEREFORE, PREMISES CONSIDERED, the State respectfully submits the Defendant’s
motion should be denied.
RANDALL E. NICHOLS
DISTRICT ATTORNEY GENERAL
LELAND L. PRICE, BPR# 018853
Assistant District Attorney General
Suite 168, City-County Building
P.O. Box 1468
Knoxville, TN 37901
Telephone: (865) 215-2515
CERTIFICATE OF SERVICE
This is to certify that a true and exact copy of the foregoing pleading was forwarded, by
electronic mail transmission, hand delivery or by placing the same in the U.S. Mail with
sufficient postage thereon to the following attorneys for the Defendants:
Kimberly Ann Parton
P.O. Box 116 W. Thomas Dillard
Knoxville, TN 37901-0116 Stephen Ross Johnson
Ritchie, Dillard & Davies
Douglas A. Trant 606 W. Main Street, Suite 300
900 S. Gay St., Suite 1502 PO Box 1126
Knoxville, TN 37902 Knoxville, TN 37901-1126
G. Scott Green Theodore H. Lavit
Valliant, Harrison, Schwartz & Green Joseph R. Stewart
800 S. Gay St., Suite 1650 One Court Square
Knoxville, TN 37929-1650 PO Box 676
Lebanon, KY 40033
David M. Eldridge
Eldridge & Blakney, P.C. Russell T. Greene
The Cherokee Building, Suite 101 800 S. Gay Street, Suite 1920
400 West Church Avenue Knoxville, TN 37902
Knoxville, TN 37901-0398
this the 13 day of October, 2009.
LELAND L. PRICE
ASSISTANT DISTRICT ATTORNEY