A Victory for Confidentiality in Prisoner Legal Correspondence With Lawyers: University of St. Thomas Appellate Clinic

For I was in prison and you visited me.  (Matthew 25:36)

As lawyers, we have the opportunity and means not only to follow Christ’s call to visit those in prison but to use our privileged access to the legal system to directly assist those in prison, by seeking to overturn wrongful convictions, by challenging unjust and excessive sentences, and by working to uphold the dignity of the “neighbor” who is subject to incarceration.

As lawyers who work regularly with prisoners are painfully aware, it is always an uphill battle to present a prisoner’s plea to a court.  But as a testament to the ever-present (if sometimes seemingly dormant) potential for genuine justice in our court system, a deserving prisoner does win one, at least once in a while.

So I am delighted to report a victory in the Ninth Circuit yesterday for the basic right of prisoners to correspond with their lawyers without such legal mail being read by prison officials — a success attributable to the persistence of a death row inmate, Scott Nordstrom, and to the legal representation we were able to provide him through the University of St. Thomas Appellate Clinic.

Consistent with our Catholic social justice mission at the University of St. Thomas, we’ve established an Appellate Clinic in which I work with a team of students to provide pro bono representation to pro se parties in federal appellate litigation.  Over the past year, Michelle King and Joy Nissen Beitzel, now recent graduates of the law school, have been working with me on a case involving an Arizona death row inmate, Scott Nordstrom, who challenged the prison’s policy and practice of reading inmate correspondence with attorneys.  We were supported in this effort by our partners at the University of Arkansas Federal Appellate Litigation Project:  Professor Dustin Buehler and students Mason Boling and Lauren Murphy

Mr. Nordstrom, who has languished in solitary maximum security confinement for 17 years, has consistently maintained his innocence against the charges of murder arising from two robberies in Tucson and has diligently worked to overturn his conviction against every obstacle interposed by the state.  His claim of wrongful conviction was given new life after the man who prosecuted him unexpectedly died while under ethics investigation by the state bar (here).  Found in the office files of that deceased prosecutor were records that called into question the state’s assertions that another suspect (and the prosecution’s lead witness) had an air-tight alibi because he was on probation at home and could not have escaped electronic monitoring on the night of the crime (here).  Together with other evidence, Mr. Nordstrom hoped that his long struggle for justice might finally attract judicial attention.

 

After writing a handwritten letter sharing sensitive information with his court-appointed lawyer on the appeal from the death sentence, Scott Nordstrom handed it to a correctional officer to be mailed, only to watch the officer start reading the letter.  When he objected, the correctional officer told Mr. Nordstrom not to tell him how to do his job and resumed reading.  When Mr. Nordstrom complained afterward in a prison grievance, the Director of the Arizona Department of Corrections responded that “staff are not prohibited from reading such documents to the extent necessary to establish the absence of contraband . . . and to ensure the content of the legal mail is of legal subject matter.”

Scott Nordstrom filed a pro se action for injunctive relief against officials of the Arizona Department of Corrections, alleging a violation of his rights to free speech, access to the court, assistance of counsel, and due process under the First, Sixth, and Fourteenth Amendments to the United States Constitution.  The district court dismissed the lawsuit, and Mr. Nordstrom appealed to the United States Court of Appeals for the Ninth Circuit.  At that stage, Professor Buehler and I were appointed by the court as pro bono counsel.

Michelle King, Joy Nissen Beitzel, and I started work on the Nordstrom appeal in the mid-summer of 2013.  We wrote the opening and reply briefs during the course of the past academic year.  We also were honored and delighted to find support from four organizations that filed amicus briefs on Mr. Nordstrom’s behalf — the Yale Law School Ethics Bureau; American Civil Liberties Union, Prison Law Office, and Arizona Center for Disability Law; Equal Justice Initiative; and Arizona Capital Representation Project.  The briefs are available here.

On April 7, 2014, in the ceremonial courtroom at the Ninth Circuit’s courthouse in San Francisco, Michelle King and Nissen Beitzel both argued the case to a three-judge panel, convincingly presenting Mr. Nordstrom’s case and thoughtfully responding to questions.  Audio of the oral argument is available on the court’s website here.

Yesterday, the Ninth Circuit ruled in favor of Mr. Nordstrom in a precedential published opinion, holding that prison officials may not read legal mail between prisoners and their counsel based on the right to confidential assistance of counsel under the Sixth Amendment.  The court held that Mr. Nordstrom has a valid constitutional claim for injunctive relief, if the case is proven on the facts, and sent the matter back to the trial court for further proceedings.

The heart of the court majority’s ruling appears in this paragraph (some citations omitted):

A criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense.  In American criminal law, the right to privately confer with counsel is nearly sacrosanct. It is obvious to us that a policy or practice permitting prison officials to not just inspect or scan, but to read an inmate’s letters to his counsel is highly likely to inhibit the sort of candid communications that the right to counsel and the attorney-client privilege are meant to protect.  As one court put it, “[i]t is well established that an accused does not enjoy the effective aid of counsel if he is denied the right of private consultation with him.” Coplon v. United States, 191 F.2d 749, 757 (D.C. Cir. 1951). It takes no stretch of imagination to see how an inmate would be reluctant to confide in his lawyer about the facts of the crime, perhaps other crimes, possible plea bargains, and the intimate details of his own life and his family members’ lives, if he knows that a guard is going to be privy to them, too.

Any lawyer representing a prisoner in a claim challenging a conviction or complaining about prison conditions faces daunting practical and legal obstacles.  In capital cases, the need for competent representation in especially compelling.

Not only does the Ninth Circuit’s new ruling in Nordstrom v. Ryan uphold the essential dignity of every prisoner in fostering a trusting and fiduciary relationship with his or her attorney, but the reaffirmed protection of confidentiality in attorney-client correspondence makes it possible for lawyers to uphold their ethical responsibilities when representing prisoners and thereby encourages lawyers to undertake these difficult cases.