Whether the Sixth Amendment protects a criminal defendant's handwritten notes prepared for attorney consultation from being seized and used as evidence at trial, despite not explicitly mentioning counsel

and the seriousness of the errors made by the District of Columbia Court of Appeals. The Court of Appeals held that neither attorney-client privilege nor workproduct doctrine applied to—meaning the Sixth Amendment did not protect— handwritten notes that Mr. Johnson wrote to himself, while he was in jail, in 1 preparation for his next meeting with his trial attorney. That erroneous holding threatens the right to counsel and conflicts with precedent from other courts. Like many people who are jailed while awaiting trial, Mr. Johnson did not know when he would next get to speak with his lawyer. Thus, as reactions and strategy points occurred to him, he jotted them down so he could refer to them when meeting with counsel. He thus produced “a recitation of [his] impressions and his reactions to the information he learned at his preliminary hearing and from the affidavit supporting his arrest warrant,” Ex. A at 12, which he discussed “with counsel both before and after he wrote [it],” C.A. App’x 893. Yet the government seized this note from his jail cell and used it at trial as a purported “confession.” The note was so powerful—especially compared to the other, purely circumstantial evidence against Mr. Johnson—that the jury asked to see it during deliberations. Even so, the court below held that no privilege attached to this note because it did “not, on its face, mention counsel or otherwise indicate that it was intended for their eyes.” Ex. A at 13 (emphasis added). And the court said that, even if the note was protected by the work-product doctrine, no prejudice resulted from its use at trial—even though the government portrayed it as a confession and the jury asked to see it. Id. at 14. On these grounds, the court found no Sixth Amendment violation. See id. at 13. The court then denied Mr. Johnson’s petition for rehearing en banc. Thus, under the decision below, the prosecution is free to seize a client’s notes, blow them up as evidence for the jury, and repeatedly tell the jury that the defendant’s written thoughts about legal strategy—prepared for discussions with his lawyer—are akin to a confession. As Judge Howard observed at oral argument, such a rule produces profound and unfair consequences. And it threatens the basic purpose of the privilege and work-product doctrines, and thus the Sixth Amendment right to counsel. This Court has long recognized “the centrality of open client and attorney communication to the proper functioning of our adversary system of justice.” United States v. Zolin, 491 U.S. 554, 562 (1989). “By assuring confidentiality, the privilege encourages clients to make ‘full and frank’ disclosures to their attorneys, who are then better able to provide candid advice and effective representation.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108 (2009). If jailed clients cannot take the initiative to prepare notes for attorney meetings without losing the privilege, their counsel cannot effectively advise them, and they cannot properly defend themselves. “Certainly, an outline of what a client wishes to discuss with counsel—and which is subsequently discussed with one’s counsel—would seem to fit squarely within our understanding of the scope of the privilege.” See United States v. Defonte, 441 F.3d 92, 96 (2d Cir. 2006) (per curiam). In turn, the decision below violates the Sixth Amendment and conflicts with other appellate courts’ rulings. “The essence of the Sixth Amendment right to effective assistance of counsel is, indeed, privacy of communication with counsel.” E.g., In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 174 (4th Cir. 2019) (collecting cases) (citing United States v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981)). By failing to apply the privilege to client materials intended for use in confidential attorney-client communications, the decision below eviscerates this principle and conflicts with other appellate decisions. E.g., Defonte, 441 F.3d at