North Carolina resident Rodney Anton Williamson was indicted under seal in December 2006 and charged with conspiracy to distribute five kilos of cocaine.


Williamson and several co-conspirators eluded arrest. One of the co-conspirators, Edison Alberty, decided to surrender and become a confidential informant for the Government.


Federal agents wired Alberty with an “audio recording device” and had him meet with Williamson at a Greensboro restaurants. The meeting took place in January 2007. The wire captured conversations between the two men about an upcoming drug deal. The agents moved in to arrest Williamson but he managed once again to elude them. The drug dealer was finally arrested four months later.


Williamson was put to trial in August 2007 at which the Government played restaurant recorded conversation between him and Alberty. Much of the recording was unintelligible. The trial court offered defense counsel an opportunity to “redact” the unintelligible portions. Williamson instructed his attorney to reject the offer, electing to have the recording played in its entirety.


The jury convicted Williamson and four months later he was sentenced to life in prison. He appealed his conviction to the Fourth Circuit Court of Appeals. He argued on appeal that his right to counsel had been violated because he was under a sealed indictment when the restaurant recording was made with Alberty. The appeals court addressed this constitutional issue under the “plain error” rule, finding there had been no violation because the right to counsel had not attached.


Williamson petitioned to the U.S. Supreme Court for review. Surprisingly, the Government before the court changed its position, conceding that the right to counsel had indeed attached after the sealed indictment. While the Government conceded it was a “plain error” to violate Williamson’s right to counsel, it excused the error by saying the violation did not prejudice the defendant or affect the fairness, integrity or public reputation of the judicial proceedings. The Supreme Court did not agree. It remanded Williamson’s case back to the Fourth Circuit for further review.


The appeals court kicked the case back to the trial court for a hearing after which the court concluded the “totality of the circumstances” demonstrated that Williamson had voluntarily made the recorded statements in the restaurant. When the case made its second appearance before the appeals court, the court this time blamed defense counsel for failing to handle the right to counsel error in the proper procedural manner. Counsel’s dereliction, according to the Fourth Circuit, was his failure to timely and properly “object to the admission of the [restaurant] recording at trial,” forcing the court on direct appeal to address the “forfeited” constitutional error under the “plain error” rule.


Rule 52 of the Federal Rules of Criminal Procedure governs “harmless and plain error.” Subsection (B) of the rule provides that “a plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Translated: Because defense counsel did not “object” to the admission of the recorded statement, the appeals court had to invoke this restrictive plain error rule to decide the “right to counsel” issue rather than an “objected to” constitutional error controlled by established case law.


The inherent difficulty in the plain rule error is that even if a defendant establishes the error, he must then demonstrate “the error’s serious effect on the fairness, integrity, or public reputation of judicial proceedings.” This burden can be met only if the defendant can establish that the error led to the jury’s guilty verdict. Put simply, “no harm, no foul.”


At the end of the day, the Fourth Circuit concluded that even if Williamson could have demonstrated the forfeited Sixth Amendment right affected his substantial right to counsel, he could in no way show the error affected the fairness, integrity or public reputation of the courts because the Government had presented overwhelming evidence of guilt.


Beyond defense counsel’s failure to preserve the right to counsel issue, especially the failure to file a motion to suppress the recorded restaurant conversation, the Williamson cases raises another problem. That being, the Government knew prior to trial that Williamson’s right to counsel had been violated at the restaurant meeting. Why, then, did the trial court allow the recorded conversation to be admitted into evidence?


The Fourth Circuit addressed this problem by saying there was no evidence to remotely suggest that “the government recognized it was passing any contextually clear Sixth Amendment markers …” We find that conclusion itself an affront to the “fairness, integrity, [and] public reputation of judicial proceedings.” It is absurd to believe the Government did not know it had passed Sixth Amendment “markers” with the recorded restaurant statements; that it suddenly had an epiphany before the Supreme Court that it had crossed those markers. Also ironic is the fact that the Court chided the defense attorney for failing to recognize the same marker.


We suspect Government attorneys knew they could push the misconduct envelop to the edge of the courtroom table without any real judicial oversight at the trial level, even at the appeal level, but they were not about to push that envelop before the Supreme Court where there would have been not only judicial oversight but potential nationwide attention if they had.


Thus, we strenuously disagree with the Fourth Circuit’s reasoning that a reversal of Williamson’s conviction would have done more “damage to public perception of judicial proceedings than leaving the conviction in place.”


The denial of the constitutional right to counsel is not a “technicality” – it is a fundamental constitutional violation. In this case, the constitutional violation was conceded to by everyone, so the appeals court should have opted for a reversal of conviction rather than excusing the error.