When prosecutors intentionally and without any legitimate law-enforcement justification access confidential attorney-client communications before sentencing, do the prosecutors thereby commit structural Sixth Amendment error?

QUESTION PRESENTED In Weatherford v. Bursey, this Court held that an undercover agent did not cause structural (“per se”) Sixth Amendment error when he sat in on a defendant’s attorneyclient meetings but did not convey the details of the meetings to the prosecution. 429 U.S. 545 (1977). This Court nonetheless cautioned that “had the prosecution learned” the details of the meetings, the defendant “would have a much stronger case.” Id. at 554. This is that “much stronger case.” For years, prosecutors in the Kansas United States Attorney’s Office secretly engaged in a “systematic practice of purposeful collection, retention, and exploitation of’ recorded communications between defense counsel and their detained clients. United States v. Carter, 429 F.Supp.3d 788, 900 (D. Kan. 2019). And yet the Tenth Circuit has now held that when such intrusions into attorney-client communications occur between a guilty plea and sentencing, they do not violate the Sixth Amendment unless the defendant is prejudiced. Pet. App. 24a-25a. The question presented is: When prosecutors intentionally and without any legitimate law-enforcement justification access confidential attorney-client communications before sentencing, do the prosecutors thereby commit structural Sixth Amendment error? i