Full 10th Circuit Says Prejudice Must Be Shown in Call Breach

A convicted drug trafficker can’t argue he was implicitly prejudiced when the US accessed phone calls with his attorney due to “unsound” Tenth Circuit precedent, an en banc federal court ruled Monday.

The majority affirmed a lower court’s ruling that the US government didn’t violate Steven Hohn’s Sixth Amendment rights and said its 1995 holding under Shillinger v. Haworth should be overruled. Shillinger held that accessing confidential communication with an attorney constituted a structural error without having to show evidence of prejudice.

“Hohn’s appeal puts Shillinger squarely under the microscope and, upon closer examination, we cannot help but see its ...