When Prisoners Email Their Lawyers, It's Often Not Confidential | KERA News

When Prisoners Email Their Lawyers, It's Often Not Confidential

Nov 18, 2015
Originally published on November 18, 2015 6:37 pm

At least once a week, federal defender Deirdre von Dornum travels across Brooklyn to meet with her incarcerated clients. The round trip takes three hours, on a good day.

First von Dornum rides the subway. Then she walks half a mile to the Metropolitan Detention Center, a pair of nondescript high-rise buildings on the Brooklyn waterfront. At this point, she still has to wait — sometimes for hours — for guards to bring her client down from his cell.

"It's time that I'm not able to spend on other portions of the case," says von Dornum. "I have to use the hours to travel back and forth to the jail."

But as cumbersome as this is, defense lawyers say it's often the only way to talk with their clients that is both timely and confidential. Phone conversations with attorneys are private, but there aren't always enough phones. The post office is too slow. Many federal inmates have access to email. But defense attorneys say they don't trust it, because prosecutors have used those emails as evidence in court. Now defense lawyers and elected officials want to change that.

"These conversations are fundamental to the attorney-client relationship," says E.G. Morris, president of the National Association of Criminal Defense Lawyers. "They're fundamental to the Sixth Amendment right to counsel."

These restrictions on email aren't merely inconvenient, according to Morris. He argues they're preventing defense attorneys from doing their jobs effectively. But prosecutors insist that's not the point at all.

"We don't want to read attorney-client communications," says James McGovern, a prosecutor with the United States Attorney's Office for the Eastern District of New York in Brooklyn. "We are not doing this for some strategic advantage."

McGovern takes a very different view of the inmate email system.

"Nobody ever intended the system to be confidential," he says. When you log in to the prison email system, McGovern points out, there's a clear warning that the email will be monitored. So he says defense lawyers should act accordingly.

For a while, prosecutors in Brooklyn assigned an extra lawyer to separate out emails between inmates and their defense attorneys. But "it became really too much of a burden," McGovern says, "to go and constantly have to review thousands of pages and try and remove attorney-inmate emails."

So last summer, the office sent a letter warning defense lawyers it "intends to review all email" sent to or from federal inmates. Several federal judges have ruled that's OK. But at least one judge has expressed misgivings.

U.S. Rep Hakeem Jeffries (D-NY) is going even further: he introduced a bill that would forbid prosecutors from reading email between defense lawyers and their clients.

"No other form of communication is treated in this fashion," Jeffries says. "Email communication in the 21st century should be given the attorney-client privilege protection that it deserves."

For Jeffries, it strains credibility that the Bureau of Prisons can't find a way to keep these emails hidden from prosecutors, as it does for phone calls and regular mail. The Bureau of Prisons declined to comment for this story. But critics say it's missing a big opportunity to make the entire justice system work better.

"We have chosen the least efficient way to actually run the criminal justice system," says Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles. "We're operating in the same manner we did half a century ago: come on in and see your client."

Levenson thinks this is one more area where the law needs to catch up with technology. Though she doesn't think that will happen until everyone agrees that it should.

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Transcript

ARI SHAPIRO, HOST:

Questions about online privacy are everywhere in our society, including in prison. Many federal inmates use email through a special prison system. Defense attorneys say they don't trust it because prosecutors have used those messages as evidence in court. Defense lawyers and elected officials want to change that. NPR's Joel Rose reports.

JOEL ROSE, BYLINE: At least once a week, federal defender Deirdre von Dornum makes the trip across Brooklyn to meet with her incarcerated clients.

COMPUTER-GENERATED VOICE: Next express (unintelligible) train to...

ROSE: The round-trip takes three hours on a good day. First, von Dornum rides the subway. Then she walks half a mile to the Metropolitan Detention Center, a pair of nondescript high-rise buildings on the Brooklyn waterfront.

DEIRDRE VON DORNUM: Can I get one and a locker?

UNIDENTIFIED MAN: You get one and a locker.

ROSE: Then von Dornum goes through security where she has to leave everything except her legal papers in a locker in the lobby. At this point, she still has to wait, sometimes for hours, for guards to bring her client down from his cell.

VON DORNUM: It's time that I'm not able to spend on other portions of the case.

ROSE: But von Dornum says it's the only way to be sure she can have a conversation that is both timely and confidential. Phone conversations with attorneys are private, but there aren't always enough phones. The post office is too slow. Email would be perfect, but it's not protected. So von Dornum knows that the Bureau of Prisons could share her client's email with prosecutors.

VON DORNUM: I have to use the hours to travel back and forth to the jail as opposed to being able to email him or her about it and say, here's how I see it; do you have any questions; do you have any thoughts?

GERRY MORRIS: These conversations are fundamental to the attorney-client relationship.

ROSE: Gerry Morris is president of the National Association of Criminal Defense Lawyers. He says these restrictions on email aren't merely inconvenient. They're preventing defense attorneys from doing their jobs.

MORRIS: This is not just idle chitchat or - this ought to be private because there might be things in there that would be embarrassing. They're fundamental to the sixth amendment right to counsel.

ROSE: Morris says reading these emails can give prosecutors an unfair advantage, but prosecutors insist that's not the point at all.

JIM MCGOVERN: We don't want to read attorney-client communications. We are not doing this for some strategic advantage.

ROSE: Jim McGovern is a prosecutor in the U.S. attorney's office in Brooklyn, and he takes a very different view of the inmate email system.

MCGOVERN: Nobody ever intended the system to be confidential.

ROSE: When you log into the prison email system, there's a clear warning that the email will be monitored. So McGovern says defense lawyers should act accordingly. For a while, prosecutors in Brooklyn assigned an extra lawyer to separate out emails between inmates and their lawyers, but McGovern says...

MCGOVERN: It became really too much of a burden to go and constantly have to review thousands of pages and try and remove out attorney-inmate emails.

ROSE: So last summer, the office sent a letter warning defense lawyers it, quote, "intends to review all email," unquote, sent to or from federal inmates. Several federal judges have ruled that's OK, but at least one judge has expressed misgivings. Congressman Hakeem Jeffries of New York is going even further. He introduced a bill that would forbid prosecutors from reading email between defense lawyers and their clients.

HAKEEM JEFFRIES: No other form of communication is treated in this fashion. Email communication in the 21st century should be given the attorney-client privilege protection that it deserves.

ROSE: Jeffries says it strains credibility that the Bureau of Prisons can't find a way to keep these emails hidden from prosecutors. The Bureau of Prisons declined to comment for this story, but critics say it's missing a big opportunity to make the justice system work better. Laurie Levenson is a formal federal prosecutor who teaches at Loyola Law School in Los Angeles.

LAURIE LEVENSON: We have chosen the least sufficient way to actually run the criminal justice system. We're operating in the same manner we did a half a century ago - come on in and see your client.

ROSE: Levenson thinks this is one more area where the law needs to catch up with technology, though she doesn't think that that will happen until everyone agrees that it should. Joel Rose, NPR News, New York. Transcript provided by NPR, Copyright NPR.