WEATHERFORD V. BURSEY, 429 U. S. 545 (1977)

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U.S. Supreme Court

Weatherford v. Bursey, 429 U.S. 545 (1977)

Weatherford v. Bursey

No. 75-1510

Argued December 7, 1976

Decided February 22, 1977

429 U.S. 545


Respondent and petitioner Weatherford (hereinafter petitioner), an undercover agent, were arrested for a state criminal offense, each thereafter retaining separate counsel. Petitioner had two pretrial meetings with respondent and respondent's counsel, who had sought petitioner's presence for the purpose of securing information or suggestions as to respondent's defense. Petitioner had no discussions concerning respondent's trial strategy or the pending criminal action either with his superiors or with the prosecution. Petitioner (who had told respondent he would not be a prosecution witness) testified for the prosecution, which, on the morning of the trial, decided to call petitioner as a witness because he had been seen in the company of police officers, and had thus lost effectiveness as an undercover agent. Respondent was convicted. After he had served his sentence, he brought this action against petitioner under 42 U.S.C. § 1983, alleging that petitioner's participation in the two meetings had deprived respondent of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments as well as his right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. The District Court found for petitioner. The Court of Appeals, without disturbing the District Court's factual findings, reversed, concluding that

"whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship, the right to counsel is sufficiently endangered to require reversal and a new trial,"

and that the concealment of petitioner's undercover status lulled respondent into a false sense of security, interfering with his trial preparations and denying him due process of law under Brady v. Maryland, 373 U. S. 83.


1. Respondent was not deprived of his right to counsel under the Sixth Amendment, which does not establish a per se rule forbidding an undercover agent to meet with a defendant's counsel. Black v. United States, 385 U. S. 26; O'Brien v. United States, 386 U. S. 345; Hoffa v. United States, 385 U. S. 293, distinguished. Pp. 429 U. S. 550-559.

Page 429 U. S. 546

(a) As long as the information possessed by petitioner about the two meetings remained uncommunicated, he posed no threat to respondent's Sixth Amendment rights. Pp. 429 U. S. 554-557.

(b) Petitioner went to the meetings not to spy, but because he was asked by respondent and his counsel and because the State was interested in maintaining petitioner's status as an informant and not arousing respondent's suspicions. Adoption of the Court of Appeals' per se rule would, for all practical purposes, have required petitioner to unmask himself. Pp. 429 U. S. 557-558.

2. The Due Process Clause does not require that the prosecution must reveal before trial the names of undercover agents or other witnesses who will testify unfavorably to the defense. Pp. 429 U. S. 559-561.

(a) There is no constitutional right to discovery in a criminal case, and Brady, supra, did not create one. P. 429 U. S. 559.

(b) That petitioner not only concealed his identity but represented that he would not be a prosecution witness did not deny respondent a right to a fair trial. The misrepresentation was not deliberate, and there is no constitutional difference between the surprise testimony of an informer who is not suspected and therefore is not asked about testifying for the prosecution and the informer who, like petitioner, is asked by the defendant but denies that he will testify. P. 429 U. S. 560.

(c) Though the Court of Appeals also suggested that petitioner' continued duplicity denied respondent the opportunity to plea bargain, there is no constitutional right to plea bargain. Pp. 429 U. S. 560-561.

528 F.2d 483, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J.,and STEWART, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 429 U. S. 561.

Page 429 U. S. 547

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