1. Constitutional Law: Attorney and Client: Appeal and Error. Whether a state intrusion into the attorney-client relationship should constitute a per se violation of the Sixth Amendment and the action that a court should take when it becomes aware of such an intrusion present questions of law that an appellate court reviews de novo.
2. Constitutional Law: Criminal Law: Right to Counsel. The Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right to effective assistance of counsel. The right to counsel exists to protect the fundamental right to a fair trial.
3. Constitutional Law: Attorney and Client: Effectiveness of Counsel. A defendant's ability to keep privileged communications with counsel insulated from the prosecution also protects the defendant's Sixth Amendment right to effective assistance of counsel.
4. Constitutional Law: Attorney and Client. The essence of the Sixth Amendment right is privacy of communication with counsel.
5. Constitutional Law: Attorney and Client: Right to Counsel. Although the attorney-client privilege has not been recognized as a right guaranteed by the Sixth Amendment, government interference in the confidential relationship between a defendant and his or her attorney can implicate the Sixth Amendment right to counsel.
6. Attorneys at Law: Conflict of Interest: Appeal and Error. The principles governing appellate review for a defense attorney's potential conflicts of interest also apply to potential disclosures of a defendant's privileged communications to the State.
7. Constitutional Law: Trial: Appeal and Error. When a trial court learns of facts that make a potential Sixth Amendment violation apparent, the issue is properly presented to an appellate court on appeal, even if it was not raised at trial.
[292 Neb. 399] 8. Trial: Attorney and Client: Presumptions. A presumption of prejudice arises when the State becomes privy to a defendant's confidential trial strategy.
9. ___: ___: ___. The presumption of prejudice that arises when the State becomes privy to a defendant's confidential trial strategy is rebuttable-at least when the State did not deliberately intrude into the attorney-client relationship.
10. Actions: Proof. The standard of proof functions to instruct fact finders about the degree of confidence our society believes they should have in the correctness of their factual conclusions for a particular type of adjudication. It serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
11. Constitutional Law: Proof. In cases involving individual rights, whether criminal or civil, the principle consideration in determining the proper standard of proof is whether the standard minimally reflects the value society places on individual liberty, because the function of legal process is to minimize the risk of erroneous decisions.
12. Trial: Presumptions: Proof. When a presumption of prejudice arises because the State has obtained a defendant's confidential trial strategy, the State must prove by clear and convincing evidence that the defendant was not prejudiced by the disclosure.
13. Trial: Evidence: Proof. When a court is presented with evidence that the State has become privy to a defendant's confidential trial strategy, it must sua sponte conduct an evidentiary hearing that requires the State to prove the defendant was not prejudiced by the disclosure and that provides the defendant with an opportunity to challenge the State's proof.
Appeal from the District Court for Custer County: Karin L. Noakes, Judge.
James Martin Davis, of Davis Law Office, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-Lerman, and Cassel, JJ., and Irwin, Judge.
A jury found the appellant, Tyler C. Bain, guilty of four felonies stemming from his assaults of his former wife [292 Neb. 400] with whom he was living: kidnapping, first degree sexual assault, second degree assault, and making terroristic threats. Regarding the kidnapping conviction, the court found that statutory mitigating circumstances did not exist. It convicted Bain of a Class IA felony for kidnapping and sentenced him to life imprisonment.
Bain contends that the State violated his Sixth Amendment right to counsel because at least five prosecutors had possession of his confidential trial strategy before his trial. We conclude that when Bain's confidential trial strategy was disclosed to prosecuting attorneys, a rebuttable presumption arose that Bain's trial was tainted by a Sixth Amendment violation. Because the court's remedy was insufficient to rebut this presumption and ensure that Bain received a fair trial, we reverse the judgment and vacate Bain's convictions. And because we vacate Bain's convictions, we do not consider his other assignments of error.
Bain's Sixth Amendment claim stems from a series of prosecutors who saw confidential communications between Bain and his originally retained counsel. The disclosure disqualified them from prosecuting because the communications discussed Bain's trial strategy. The actual communications are not in the record because the court failed to conduct an evidentiary hearing or receive the communications as evidence.
In January 2012, Bain appeared in district court for an arraignment on the State's amended charges. Rodney Palmer, his retained counsel, appeared with him. In March, Bain moved the court to appoint Palmer as his counsel because Palmer was familiar with his case and Bain had depleted his assets. At the hearing, the deputy county attorney, Glenn Clark, objected that Palmer's appointment would force the county to pay Palmer's travel time and expenses. The court overruled the motion because Palmer was currently representing Bain.
About a month later, at an April 2012 hearing on Palmer's motion to withdraw, Clark stated, in response to the court's [292 Neb. 401] question, that his office had no objection to Palmer's withdrawal. The court then asked Steven Bowers, an attorney who was present in the courtroom, whether he had any conflict in representing Bain. When Bowers said no, the court appointed him because "[h]e is a local attorney and you [Bain] can meet with him today."
Later, in September 2012, after representing Bain for 5 months, Bowers moved to withdraw as Bain's counsel because he had been hired by the Custer County Attorney's office. At the hearing, Clark informed the court that someone from the Attorney General's office would prosecute the charges. Later that month, the court appointed P. Stephen Potter from Gothenburg, Nebraska, to represent Bain.
About 2 months after Bowers moved to withdraw, in November 2012, the court allowed the county attorney and deputy attorneys to withdraw because of the conflict created by the county attorney's hiring of Bowers. Clark reported that he had given the county attorney's case files to the Attorney General's office. The court appointed attorneys from the Attorney General's office to prosecute.
Eight months later, in August 2013, the court heard a motion from Matt Lierman, an assistant attorney general, to allow that office's attorneys to withdraw as prosecutors because of a conflict of interest. Lierman informed the court that while going through the discovery materials that he had received from the county attorney's office, he saw confidential communications between Bain and Palmer, Bain's original attorney. Lierman reported that he had sealed the confidential documents in a tamper-proof envelope so that no one else could access them, and he asked the court to keep them sealed. The court sustained his motion to withdraw. As stated, the confidential communications are not part of this record.
On August 29, 2013, the court appointed Shawn Eatherton as special prosecutor. But on September 6, the court entered an order stating that it had conducted a telephonic hearing with Eatherton and found that Eatherton had a conflict of interest. It appointed Lynelle Homolka as special prosecutor.
[292 Neb. 402] About a month later, the court conducted a recorded telephonic hearing with Homolka, Bain, and Potter after Homolka notified the court that she might also have a conflict. Homolka said that while reviewing the materials provided by the Custer County Attorney, she had found "what I suspected to be confidential statements and general communications that could reveal among other things that I believe would be the defendant's trial strategy." Potter said he had seen the materials and agreed that Homolka had seen confidential information and had a duty to withdraw.
The court sustained Homolka's motion to withdraw, but it appointed her as an expert and directed her to separate the privileged information in her possession so that "this doesn't occur again." The court further directed that after sorting the materials, Homolka should give them to Potter so that he and Bain could "make sure that nothing gets into the State's hands this time that shouldn't be." The court directed Potter to consult with Homolka and to ask for an in camera hearing if any further disputes arose over the State's materials. After reviewing the State's materials, the court directed Potter to forward the ...