by defendant, the Court held that the law firm’s
representation of defendant after representing investigat-
ing detective did not create the appearance of impropriety.
Id. at 336.
See also State v. Copling, 326 N.J. Super. 417 (App. Div.
1999), certif. denied 164 N.J. 189 (2000) (public defender’s
friendship with the chief investigator for the case did not
require the trial court to disqualify counsel); State v. Shieka,
N.J. Super. 2001 WL111021 (App. Div. 2001) (where
defendant’s attorney had a daughter who was an assistant
prosecutor in the same county and at the time as
defendant’s trial, evidentiary hearing to determine
likelihood of prejudice emanating from that relationship
was warranted; defense attorney faced with possible
conflict of interest should notify court as the earliest
possible time).
For a federal case where an actual conflict of interest
was found: United States v. Moscony, 927 F.2d 742, 747 (3d
Cir. 1991). For federal cases where no conflict was found:
Burger v. Kemp, 483 U.S. 776 (1987); United States v. Kole,
164 F.3d 164, 175-76 (3d Cir. 1998), cert. denied 119 S.Ct.
1484 (1999).
E. Intrusion of Third Persons On The Right To Counsel
Not every intrusion into the attorney-client relation-
ship results in a denial of the right to effective assistance of
counsel. Defendants must demonstrate either a disclosure
of defense strategy or an inhibition of free exchange
between attorney and client before a Sixth Amendment
violation is implicated. Weatherford v. Bursey, 429 U.S.
545, 558 (1977). Illegal eaves-dropping by police of two
conversations between defendant and his attorneys was
“outrageous” conduct that would not be tolerated.
However, because the overheard conversations did not
reveal trial strategy, dismissal of prosecution based on
violation of right to counsel was not warranted, but tainted
witnesses and evidence resulting from the illegal
eavesdropping would be excluded from grand jury and
trial. State v. Sugar, 84 N.J. 1, 24-26 (1980).
When the State intentionally plants an informer in the
defense camp; or when confidential defense strategy
information is disclosed to the prosecution by a
government informer; or even when there is no intentional
intrusion or disclosure of confidential defense strategy, but
a disclosure by a government informer leads to prejudice to
the defendant, then the Sixth Amendment has been
compromised. United States v. Costanzo, 740 F.2d 251,
254 (3d Cir. 1984).
It is a violation of defendant’s Sixth Amendment rights
for the State to deliberately elicit statements from
defendant, in the absence of counsel, after he or she has
been indicted; such statements cannot be used as evidence
by the prosecution. Massiah v. United States, 377 U.S. 201,
206 (1964).For a case in which statements were not found to be
deliberately elicited, see Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 894 (3d Cir 1999), cert. denied 120
U.S. 73 (1999)(in the context of habeas corpus review
under the AEDPA, the Court found that petitioner’s right
to counsel had attached at time of taped telephone
conversations between petitioner and informant, but that
state court’s determination that informant was not a
government agent and did not deliberately elicit
incriminating statements, was not contrary to, or an
unreasonable application of, clearly established Supreme
Court precedent, and even if it was, the error was harmless.For a case where defendant’s statements were found to
be deliberately elicited, see United States v. Henry, 477 U.S.
264, 270 (1980)(defendant’s incriminating statements to
paid informant who, while confined in same cellblock as
defendant, was told by government agents to be alert to any
statements made by federal prisoners but not to initiate
conversations with or question defendant regarding the
charges against him were inadmissible as being
“deliberately elicited” from defendant in violation of his
Sixth Amendment right to counsel).Confession defendant made to fellow inmate during
time of trial did not violate Sixth Amendment, even though
inmate had previously been employed by State as
informant. Informant’s involvement with the State ended
two weeks prior to confession, and no request was made by
government authorities to obtain information from, or
regarding defendant. State v. Scales, 217 N.J. Super. 258
(Law Div. 1986), aff’d 231 N.J. Super. 336 (App. Div.),
certif. denied 117 N.J. 123 (1989).Inadvertent recording, on court’s sound recording
system, of confidential and privileged communications
between defendant and defense counsel did not violate
defendant’s right counsel. State v. Baker, 267 N.J. Super.
463 (Law Div. 1993).Defendant’s execution of an application for a public
defender while incarcerated at the county jail and at the
request of a jail guard is not an assertion of defendant’s
Sixth Amendment right to counsel. State v. Larry, 211 N.J.
Super. 221 (App. Div. 1986).