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Steven Hohn appealed the denial of a petition to vacate his judgment and discharge his case with prejudice, or, alternatively, to reduce his sentence by half.
The claim arose out of the Kansas U.S. attorney’s office since-discovered practice of obtaining and listening to attorney-client phone calls from detainees at CoreCivic.
The 10th Circuit noted that it has dealt with batches of similar appeals from CoreCivic detainees that emanate from the office’s mishandling of attorney-client communications. But Hohn’s case was different because it implicated one of the 10th Circuit’s precedents, Shillinger v. Haworth, according to the opinion. Particularly, Shillinger’s structural error rule presumes prejudice to a defendant when the government intentionally intrudes into the attorney-client relationship without a legitimate law enforcement purpose.
Under Shillinger, Hohn argued that he had no burden to show that the government’s intrusion into his attorney-client relationship prejudiced him at trial. By removing prejudice from the Sixth Amendment equation, Hohn argued that Shillinger compelled the 10th Circuit to grant him a remedy for the government’s intentional, unjustified intrusion into his confidential communication with his attorney.
Without Shillinger, Hohn’s argument collapses, according to the opinion. Hohn conceded that he suffered no prejudice by the prosecution’s obtaining and listening to his six-minute call with his attorney—the communication at the heart of this case—and so he relied solely on Shillinger’s structural error rule to sustain a Sixth Amendment violation.
But Shillinger is a 29-year-old case, and the 10th Circuit concluded that it is out of step with the U.S. Supreme Court’s cases on structural error and the “very limited class of cases” to which structural error extends.
The 10th Circuit recognized that Shillinger is tenuous but critical to resolving Hohn’s appeal and voted to hear Hohn’s case en banc to decide whether it should retain Shillinger’s structural error rule or reverse it.
After reconsidering Shillinger en banc, the 10th Circuit concluded that the case—and its structural error rule—is untenable under Supreme Court law. The 10th Circuit overruled Shillinger and held instead that a Sixth Amendment violation of the right to confidential communication with an attorney requires the defendant to show prejudice.
On those grounds, Hohn conceded he suffered no prejudice, and his claim automatically failed.
The 10th Circuit affirmed the denial of the petition.
Judge Robert Bacharach, joined by Judges Carolyn McHugh and Veronica Rossman dissented in part.
Bacharach wrote that this case grew out of a prosecutor’s intentional and unjustified intrusion into attorney-client communications about legal strategy. He noted that the court held earlier that this kind of intrusion creates a conclusive presumption of prejudice that the majority abrogates.
Bacharach wrote that the court must now decide how to gauge prejudice in the future. He noted that the 1st and 9th Circuits have created a rebuttable presumption of prejudice when the defendant proves an intentional, unjustified intrusion by the prosecution into attorney-client communications about legal strategy. He wrote that this approach enhances fairness because the prosecution’s misconduct typically yields superior access to information about potential prejudice.
Bacharach concluded that in this case, a remand to district court was appropriate and that the burden should be shifted to the government because Hohn demonstrated an intentional, unjustified intrusion into attorney-client communications about legal strategy.
Rossman, joined by Bacharach, dissented.
Rossman wrote that for nearly three decades, it has been the law of the 10th Circuit that when the prosecution unjustifiably and intentionally becomes privy to confidential attorney-client communications, the Sixth Amendment is violated, and this rarely occurring constitutional error is so fundamental and pervasive that the court will deem it prejudicial in every case.
Rossman noted that the majority undid Shillinger’s conclusive presumption and replaced it with a new rule requiring the defense to show “a realistic possibility of injury to the defendant or benefit to the government” to establish a Sixth Amendment prosecutorial-intrusion claim. She wrote that not only is the majority opinion wrong about the law, it also reflects a mistaken judgment about how the law should be enforced and justice administered.
Rossman disagreed with the majority’s disposition and the analysis on which it depended. She wrote that Hohn’s motion should have been granted because a Sixth Amendment violation occurred when the prosecution purposely and without justification became privy to his confidential legal communications with defense counsel. She would reverse the district court’s contrary conclusion and remand for a determination of the appropriate remedy.