By Johanna S. Zapp, Esq.
Lately, there has been a lot of discussion about the Corrlinks system and the privacy issues related to inmate-attorney correspondence. Below is an edited article that appeared in the New York Times about how the government used inmates’ emails against them at trial.
It seems that some judge’s are against the practice of monitoring, while others do not believe it infringes on privacy issues. It simply depends on the particular judge you have in your case. One Judge in Brooklyn was quoted as saying ““The government’s policy does not ‘unreasonably interfere’ with [the inmate’s] ability to consult his counsel, while another judge in the same courthouse in Brooklyn ruled against the government last month, barring it “from looking at any of the attorney-client emails, period.”
This is a very real and serious issue that you all should be aware of. Your emails and your telephone calls to your attorneys, to your family and to your friends are being monitored.
Prosecutors Are Reading Emails From Inmates to Lawyers
By Stephanie Clifford, July 22, 2014
The extortion case against a reputed mafia boss, encompassed thousands of pages of evidence, including surveillance photographs, cellphone and property records, and hundreds of hours of audio recordings.
But even as the defendant’s attorney sat in a jail cell, sending nearly daily emails to his lawyers on his case and his deteriorating health, federal prosecutors in Brooklyn sought to add another layer of evidence: those very emails. The prosecutors informed the defense attorney last month that they would be reading the emails sent to his lawyers from jail, potentially using his own words against him.
Jailhouse conversations have been many a defendant’s downfall through incriminating words spoken to inmates or visitors, or in phone calls to friends or relatives. Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers — a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.
The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided.
An incarcerated former Pennsylvania state senator got into further trouble in 2011 when prosecutors seized his prison emails. In Georgia, officials built a contempt case against a man already in federal prison in part by using emails between him and his lawyers obtained in 2011. And in Austin, Tex., defense lawyers have accused members of law enforcement of recording attorney-client calls from jails, then using that information to tighten their cases.
“It’s very troubling that the government’s pushing to the margins of the attorney-client relationship,” said Ellen C. Yaroshefsky, a professor at the Cardozo School of Law.
Defense lawyers say the government is overstepping its authority and taking away a necessary tool for an adequate defense. Some of them have refused to admit even the existence of sensitive emails — which, they say, perhaps predictably, are privileged.
All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.
While prosecutors say there are other ways for defense lawyers to communicate with clients, defense lawyers say those are absurdly inefficient.
A scheduled visit to see an inmate at the Metropolitan Detention Center in Sunset Park, Brooklyn, took lawyers five hours, according to court documents filed by one of the inmate’s lawyers. The trip included travel time from Manhattan and waiting for jail personnel to retrieve the inmate.
Getting confidential postal mail to inmates takes up to two weeks, one lawyer wrote. The detention center, like all federal jails, is supposed to allow inmates or lawyers to arrange unmonitored phone calls. But a paralegal spent four days and left eight messages requesting such a call and got nowhere.