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Motion to Dismiss Format for the State of Tennessee

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					                                                                             Davidson-S-Resp-DM088


             IN THE CRIMINAL COURT FOR KNOX COUNTY, TENNESSEE
                                 DIVISION I


STATE OF TENNESSEE                              )
                                                )
v.                                              )        No. 86216 B
                                                )
LEMARCUS DAVIDSON,                              )
 ALIAS                                          )

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




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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

counsel.

       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.




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                                                                          Davidson-S-Resp-DM088


       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.




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                                                                         Davidson-S-Resp-DM088


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




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                                                                         Davidson-S-Resp-DM088


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




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                                                                          Davidson-S-Resp-DM088


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.);




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                                                                          Davidson-S-Resp-DM088


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.


                                       RESPECTFULLY SUBMITTED,

                                       RANDALL E. NICHOLS
                                       DISTRICT ATTORNEY GENERAL



                                       BY:_______________________________
                                          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




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                                                                       Davidson-S-Resp-DM088



                                    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.



                                      BY:______________________________
                                        LELAND L. PRICE
                                        ASSISTANT DISTRICT ATTORNEY




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