The state searched defendant’s jail cell while he was in pretrial detention and seized attorney-client privileged information. The state has the burden of proving that it did not affect the case against him, and the case is remanded for further hearings on that and whether the DA’s office should be disqualified. State v. Robins, 2018 Ida. LEXIS 212 (Nov. 30, 2018) (substitute opinion for opinion of August 2, 2018):
This appeal arises from the jury conviction of Anthony J. Robins, Jr., for aiding and abetting two first-degree murders and an attempted first-degree murder. While he was incarcerated prior to trial, Robins’s cell was searched and handwritten notes he had prepared in anticipation of a meeting with counsel were seized and delivered to the prosecuting attorney. The district court granted Robins partial relief from a violation of his attorney-client privilege but placed the burden on him to object at trial if the State offered evidence or argument arising from the privileged materials. Robins argues that the district court erred in fashioning this remedy and we agree. In light of the circumstances, we vacate his judgment of conviction and remand the case with instructions to hold an evidentiary hearing to determine whether the State can overcome the presumption of prejudice arising from its violation of Robins’s attorney-client privilege. If the State can overcome the presumption, a new trial should be conducted from which the Ada County Prosecutor’s Office should be recused.