August 31, 2014

Prying Eyes: Federal Prosecutors and Attorney-Client Emails

The Washington Post today called for a moratorium on government prosecutors reading emails between federal inmates and their lawyers. It's absurd that such an editorial is necessary, or that anyone could reasonably debate the issue. Yet, the Post is currently on the losing side of this argument, as the government is doing all it can to intrude on the attorney-client relationship wherever possible.

In New York federal courts, whether to allow prosecutorial spying on these communications is up to each judge on a case by case basis. Some have ruled in favor of government access, others have firmly rejected it. (See here). But in view of how important it is for clients to be able to speak openly with their lawyers, and the vast advantages government prosecutors already have over these defendants, providing a meaningful opportunity for counsel and client to speak is a small matter.

Inmates in jail can communicate with their attorneys in a number of ways, but most are either open to eavesdropping, or are impractical or cumbersome. Email offers an easy alternative. Not surprisingly, the government wants the right to read these missives. Both because they may provide evidence against inmates who said stuff they shouldn't, and because it helps make communications more difficult, thus making it harder for defendants to put together their defense. 

Clients can call on the phone, but as everyone knows, these calls are monitored (read: taped). A quick call is good for confirming a court date or letting your client know when you're coming for a visit, but that's about it. Sure, you can arrange for unmonitored calls, but it can take days or weeks to arrange.

Clients can write, and attorney-client letters are supposed to be privileged. But letter writing is a lousy way of exchanging ideas, answering questions, etc. This is particularly true for people who don't write for a living. And even if both the attorney and the client were simply fabulous writers, it can many days or weeks for mail to get from the inmate to the attorney, or vice versa.

Sure, you can visit your client, but that's a time consuming event, that can require hours of travel and hours of waiting. While there are certain conversations that ought to be had face to face, it is unwieldy, highly impractical, and sometimes downright impossible. Especially when you need to have a short conversation, and you need to have it now.

Now jails can offer email to clients. This type of communication offers inmates and their counsel obvious benefits, but it is important that both attorney and client be able to talk freely. Why not allow this? The government argues that it is too costly, but that's a lousy argument. And, according to the Post, untrue.

Well, the government says, we tell inmates that the emails are monitored, so they can't complain when we read them or use their words against them in court. But this is beside the point, which is to say that the government ought to provide unmonitored email because it benefits our justice system, because it is the right thing to do, rather than argue about why inmates' admissions ought to be admissible.

Finality is a critically important component of our system of criminal justice, and this means that it is imperative that our system be reasonably reliable. In other words, we must ensure that criminal defendants are provided every opportunity to defend themselves and that their relevants rights under the Constitution be safeguarded. That is why prosecutors are required to disclose various categories of evidence prior to trial, even though it may make convicting the defendant more difficult. And it is equally or more important that defendants be allowed to communicate freely and without fear of self-incrimination when they chat with their counsel.

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