Weatherford v. Bursey
429 U.S. 545 (1977)
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Rule of Law:
An undercover agent's attendance at a confidential meeting between a criminal defendant and his attorney does not, by itself, violate the defendant's Sixth Amendment right to counsel. A constitutional violation occurs only if the defendant can show that the agent communicated confidential defense strategy to the prosecution or that the agent's presence otherwise resulted in prejudice to the defendant's case.
Facts:
- Undercover state law enforcement agent Weatherford participated with Bursey and two others in vandalizing a Selective Service office.
- To maintain his undercover status for other ongoing matters, Weatherford was arrested and charged along with Bursey.
- Bursey and his attorney, C. Rauch Wise, invited Weatherford to two pretrial meetings to discuss trial strategy, believing him to be a co-defendant.
- Weatherford attended the meetings to avoid arousing suspicion, but he did not initiate them, seek information, or reveal his identity as an agent.
- Weatherford did not communicate any information regarding Bursey's trial plans or defense strategy to his superiors or to the prosecution.
- Weatherford informed Bursey and Wise that he would seek a severance of his case.
- On the day of the trial, the prosecution unexpectedly called Weatherford to testify as an eyewitness against Bursey.
- Weatherford's testimony related only to the events of the vandalism and did not include any information learned during his meetings with Bursey and his attorney.
Procedural Posture:
- Following his conviction in a South Carolina state court for vandalism, Bursey served his sentence.
- Bursey then filed a civil action under 42 U.S.C. § 1983 in the U.S. District Court against Weatherford and his superior, Strom.
- Bursey alleged that Weatherford's conduct violated his Sixth Amendment right to counsel and Fourteenth Amendment right to a fair trial.
- After a non-jury trial, the District Court found for the defendants, Weatherford and Strom.
- Bursey, as the appellant, appealed the decision to the U.S. Court of Appeals for the Fourth Circuit.
- The Court of Appeals reversed the District Court's judgment, holding that Bursey's constitutional rights had been violated.
- Weatherford and Strom, as petitioners, petitioned for and were granted a writ of certiorari by the Supreme Court of the United States.
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Issue:
Does an undercover government agent's attendance at pretrial meetings between a criminal defendant and his attorney violate the defendant's Sixth Amendment right to effective assistance of counsel when the agent does not communicate any information about the defense strategy to the prosecution and there is no other prejudice to the defendant?
Opinions:
Majority - Justice White
No. The presence of a government agent in a defense meeting does not constitute a per se violation of the Sixth Amendment right to counsel. For a constitutional violation to be established, there must be a showing of prejudice, such as the communication of defense strategy to the prosecution or the introduction of tainted evidence. Here, the trial court found that the agent, Weatherford, communicated nothing about Bursey's trial strategy to the prosecution. His presence was not a purposeful intrusion, as he was invited to the meetings by the defense. Without communication of defense plans or some other tangible detriment, the defendant's Sixth Amendment rights are not violated, as there is no realistic possibility of injury to the defendant or benefit to the state.
Dissenting - Justice Marshall
Yes. A per se rule should prohibit any government intrusion into the attorney-client relationship, regardless of prejudice. The mere presence of a government agent in defense meetings undermines the integrity of the adversarial system and chills the candid communication essential for effective assistance of counsel. Requiring a defendant to prove that the agent communicated information to the prosecution creates an almost impossible burden of proof. The risk that an agent can tailor their testimony based on knowledge of the defense strategy is itself a form of prejudice. Therefore, any such intrusion should automatically be considered a constitutional violation to provide the necessary 'breathing space' for the Sixth Amendment right to survive.
Analysis:
This decision rejects a per se rule against government informants attending defense meetings, establishing a prejudice-based standard instead. By requiring the defendant to demonstrate a 'realistic possibility of injury,' the Court places a significant burden on defendants claiming a Sixth Amendment violation in this context. This ruling protects the ability of law enforcement to conduct legitimate undercover operations without automatically forcing an agent to abandon their cover. The Court differentiates the threat posed by an invited informant from that of illegal electronic surveillance, suggesting the latter is a more serious intrusion into attorney-client confidentiality.
