# United States Ex Rel. Cooper, Relators-Appellants v. Wilfred L. Denno, Warden of Sing Sing Prison > Court of Appeals for the Second Circuit · June 6, 1955 · 221 F.2d 626 URL: https://www.frixlaw.com/law-library/cases/9444566 ## Case - **Full name:** UNITED STATES Ex Rel. COOPER Et Al., Relators-Appellants, v. Wilfred L. DENNO, Warden of Sing Sing Prison, Respondent-Appellee - **Court:** Court of Appeals for the Second Circuit - **Decided:** June 6, 1955 - **Citations:** 221 F.2d 626 - **Precedential status:** Published - **Opinion:** Concurrence - **Judges:** , Brennan, Frank, Medina - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9444566 ## Opinion text *630 FRANK:, Circuit'Judge (concurring). 1. Rubin appeared in the courtroom, only after a deputy sheriff had overheard a conversation in Yiddish between two of the defendants, while in the county jail, suggesting that they might attempt to escape from the courthouse during one of the noon-hour recesses of their trial. The deputy sheriff reported this conversation to his superiors. As the New York Court of Appeals said.: “The inference is almost inescapable that it was the report of defendants’ escape-plan conversation that brought Rubin into the courtroom.” [ 307 N.Y. 253 , 120 N.E.2d 81 .6.] As Rubin was unarmed, while other officers- in the courtroom were armed, he could not have been called in ;o attend the trial for the purpose of overcoming the defendants if they sought to escape. It seems clear, then, that the “security” purpose of having him present was to have him, who understood Yiddish, overhear remarks, made in Yiddish, by the defendants to one another, which would disclose their intention to escape. The affidavits of the state officials (accepted as evidence) state tha'; Rubin was not instructed to listen to consultations between the defendants and their attorneys; but, significantly they do not deny that he was instructed to listen to what defendants might say to one another with" respect to an escape. Now it is obvious that (1) if Rubin was to overhear what defendants said among themselves, (2) he would necessarily overhear what defendants said to their counsel. The second was not the purpose of having him in the courtroom. But, as noted below, the absence of that second purpose is immaterial. All the foregoing would be of no importance, if the defendants in their courtroom consultations with their counsel had beer conversing in easily audible tones. For they had no right to assume that, if and when they conversed in this public manner, someone with knowledge of Yiddish would not hear and understand wkat they said. Accordingly, as there was no privacy in these lawyer-client discussions in the courtroom, there was no unlawful intrusion on such privacy. But there is another fact in the record, which is disturbing. As the New York Court of Appeals noted in its opinion: “A deputy sheriff told defendant Cooper not to lean oyer in speaking to one of -his lawyers, which resulted in Cooper’s speaking in a ‘louder tone of voice’ than he would otherwise have used”. The consequence of this order was that it became possible for Rubin to overhear conversations between defendants and their counsel, as it would not have been -otherwise. This fact leaves me in some doubt. I resolve it thus: When defendants were prevented from talking to their lawyers in such a way that others could not overhear them, they were at once on notice that thereafter they might be overheard. The admonition of the deputy sheriff may have been error, but it was a fact which defendants and their counsel knew and to which they made no objection. Accordingly, I concur in my colleagues’ decision. 2. But I want to dissociate myself from what I think my colleagues’ unnecessarily sweeping statement that “reasonable security measures” can, in some circumstances, justify intrusion on “the right of privacy of lawyer-client communications.” In Caldwell v. United States, 92 U.S.App.D.C. 355 , 205 F.2d 879 , one Bradley, a government agent, had worked himself into the confidence of defendant’s attorneys. The government learned that the defendant was considering the theft of certain files— including the file in Caldwell’s case— from the United States Attorney’s office. Then the government secretly instructed Bradley, as a security measure, to become employed by the defense. Throughout the trial, Bradley, a government agent, doubled as a defense counsel’s assistant. The court said, 205 F.2d at page 881 : “We do not mean to deny the right — indeed the duty — of prosecuting officials to seek to uncover, prosecute and punish resort by accused persons and their counsel to theft of files or other un *631 lawful means of defense. We recognize that the prosecutor in this case was faced with a real dilemma, once the possibility of a theft of the files had been reported by Bradley. We do not question that he then acted with what must have seemed high motives, and certainly with active diligence. But high motives and zeal for law enforcement cannot justify spying upon and intrusion into the relationship between a person accused of crime and his counsel.” (Emphasis added.) The court went on to hold that, when there is such an intrusion, defendant need not prove that actual prejudice resulted, i. e., need not prove that the prosecutor learned anything which he did not otherwise know. See also Coplon v. United States, 89 U.S.App.D.C. 103 , 191 F.2d 749, 759-760 , in which the court held that, where the government had intercepted telephone conversations between Miss Coplon and her attorney, she was entitled to a new trial, regardless of whether resultant prejudice was shown. (Proctor, J., dissented on this point.) In United States v. Venuto, 3 Cir., 182 F.2d 519 , in which the court held that, where the trial court had unjustifiably forbidden defendant to consult with counsel during the trial recess, defendant, in order to obtain a new trial, did not need to prove that prejudice had resulted. In Melanson v. O’Brien, 1 Cir., 191 F.2d 963 , defendant in a rape case in a state court was denied the benefit of counsel; the First Circuit held he must be released on habeas corpus, even if the proof of his guilt was so overwhelming that it could not be shown that he could have been prejudiced by the absence of counsel. In Glasser v. United States, 315 U.S. 60, 75, 76 , 62 S.Ct. 457, 467 , 86 L.Ed. 680 , Glasser had been compelled against his choice to share counsel with a codefendant. The Court said; “To determine the precise degree of prejudice sustained by Glasser as a result of the court’s appointment of Stewart as counsel for Kretsky is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” And intrusion on conferences between lawyer and client is an unconstitutional interference with the right to counsel. The foregoing authorities establish a salutory, prophylactic rule. It relieves the defendant of a practically impossible burden of proving that the unconstitutional conduct worked actual harm to him. 1 A rule or constitutional principle is useless, if the burden of proof necessary to vindicate it is so heavy as to preclude its being effective. (Kenney tells us that, at one time, in Canon law, the conviction of a Cardinal for certain kinds of offenses required the testimony of seven eye-witnesses. 2 Assuming that Kenney’s report is correct, one can guess how many Cardinals were ever convicted, with so heavy a burden of proof on their accusers.) I think it irrelevant that the purpose of the eavesdropping here was not to overhear lawyer-client conversations, when, unavoidably, the plain-clothes policeman, if he overheard anything, would be bound to overhear such conversations. Suppose the state officials, solely in order to overhear escape-plan discussions, had put a concealed dictaphone under the table at which defendants and their counsel were seated at the trial. Surely, the limited purpose of such a device would not have avoided reversible error; nor (for reasons stated above) would reversal have been avoided if defendants failed to prove that the prosecution learned anything by the use of such a device. The same would be true if a government agent, masquerading as a prospective defense witness, solely *632 in order to learn of escape plans, were present at lawyer-client discussions in the office of one of defendant's lawyers. To sum up, I think what saves the judgments of conviction here is (1) that the discussions were not in private and (2) that, when the sheriff prevented defendants from conferring with their lawyers in low tones, they did not object. . Kenney, Criminal Law (1936 Ed.) 456; Ford Motor Company v. Ryan, 2 Cir., 182 F.2d 329 , at page 331, note 6. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9444566. Public record. Not legal advice.