Constitutional Law

Defense lawyers say feds' refusal to screen inmate-attorney email frustrates right to counsel

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Because of budgetary and time constraints, federal prosecutors in Brooklyn have discontinued a once-common practice of having firewall lawyers screen inmate email to weed out communications between defendants and their lawyers before prosecutors could view them.

That has led to an ongoing dispute between defense lawyers and the U.S. Attorney’s office for the Eastern District of New York and conflicting rulings by federal trial judges called into the fray, the New York Law Journal (sub. req.) reports.

Inmates are warned that email sent from prison computers may be monitored, so attorney-client privilege may not apply. However, effectively denying inmates the right to communicate privately by email with their attorneys frustrates their constitutional right to counsel, defense lawyers argue, because of the difficulty of arranging in-person jail meetings and unmonitored phone calls.

Judge Allyne Ross, while agreeing last week that the feds could review inmate-attorney email, said it would be “a welcome development” if the feds could find a way to improve the email system so attorney-client communications are segregated, the article reports.

She is not the only one hoping for an amicable resolution.

“I think there are going to be further discussions. I’m hopeful we can work something out,” said David Patton. He serves as executive director and attorney-in-chief of Federal Defenders of New York, and notes that the U.S. Attorney’s office for the Southern District of New York, which handles Manhattan cases, also sees inmate emails as not privileged.

See also: “Are federal prosecutors reading inmates’ emails to their attorneys? Memo suggests answer may be yes”

Updated July 23 to remove content about privileged communciation options.

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