[E]ven in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection .... (1)
Death row has historically been a lonely place. And for most of its history, death row in Arizona was a "uniquely severe environment." (2) Each inmate lived in a single cell--IT 7" by 7' 9"--with a combination toilet/sink, a desk, a stool, and a hard platform for a bed. (3) The cell was constantly and brightly illuminated through the day and night. (4) Poor airflow and humid conditions produced "a foul and stagnant smell." (5) The condemned were denied contact with any other prisoner, received their meals through the cell door, and were confined for up to 23 hours a day, other than when they were moved in full restraints to another no-contact secured area for shower or exercise. (6) A description of solitary confinement by a former inmate in another prison captures the isolation experienced by the men in the death row unit in Florence, Arizona:
There was nothing to hear except empty, echoing voices from other parts of the prison.... There was no touch. My food was pushed through a slot. Doors were activated by buzzers, even the one that led to a literal cage directly outside of my cell for one hour per day of 'recreation'. ... Losing [human] contact, you lose your sense of identity. You become nothing. (7) Prisoners in such strictly controlled isolation may go for years "without experiencing any form of touch beyond the chaining and unchaining of wrists through the cuffport in the door." (8) Solitary confinement becomes "a form of living death," leaving inmates so separated from any social life that they are at great risk of profound psychological distress. (9)
In 2011, Scott Nordstrom was entering into his fourteenth year languishing in his segregated maximum security cell on the Arizona death row. Into the figurative darkness of solitary incarceration (while subject literally to constant illumination even at night)' (0) had come a metaphorical ray of sunshine. With newly-discovered evidence of prosecutorial misconduct, Nordstrom finally had reason to hope that the courts might rehear his case.
From the beginning, Scott Nordstrom had steadfastly maintained his innocence in the murders of six people during two robberies in Tucson, Arizona in 1996. (11) His brother David Nordstrom had initially been arrested for the murders, but immediately sought to cast the blame in another direction. (12) Later, having accepted a generous plea agreement for a short prison term, homicide-suspect-turned-prosecution-witness David insisted that his similar-appearing sibling Scott was the one who had committed the crimes along with Robert Jones. (13) With no fingerprint or trace evidence from the crime scenes, David became the star witness for the prosecution in securing a conviction and death sentence against Scott. (14)
At Scott Nordstrom's trial, the prosecutor had vouched for brother David's alibi at the time of the second robbery as "rock solid" because he was being electronically monitored on home arrest at night as part of his early release from prison. (15) The prosecutor represented to the jury that electronic monitoring records showed David was home at the time of the second robbery and that tests conducted on the monitoring system showed it could not be defeated. (16)
More than a decade later, Scott Nordstrom's claim of wrongful conviction was given new life after the man who prosecuted him unexpectedly died while under ethics investigation by the state bar. (17) Found in the office files of that deceased prosecutor were records that called into question the state's assertions that the prosecution's lead witness, David Nordstrom, had an air-tight alibi, including witnesses to his statements that he regularly evaded electronic monitoring. (18) The prosecutor had also provided false information and concealed the suggestive procedures used by police to elicit identification from an eyewitness. (19) In addition, the prosecutor had withheld witness reports to police indicating another party was involved in the homicide. (20) Together with other evidence and witness information, Nordstrom hoped that his long struggle for justice might finally attract judicial attention. (21)
Standing alone against the State and isolated in his segregated death row cell, Scott Nordstrom took pen in hand to write a confidential letter to his only ally--the court-appointed attorney for his criminal appeal from resentencing. After writing a handwritten letter sharing sensitive information, Nordstrom put it into an envelope marked "legal mail" and addressed it to his court-appointed lawyer. (22) He handed it to a correctional officer to be mailed, only to watch the officer proceed to read the letter. (23) As later described by a court, (24) when Nordstrom objected, "the guard told him to go pound sand" and said that he was authorized to "search the legal mail for contraband as well as scan the content of the material to ensure it is of legal subject matter." (25) When Nordstrom complained about this intrusion into attorney-client communications in a prison grievance, the Director of the Arizona Department of Corrections responded that staff are "not prohibited from reading the mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter." (26)
This interception and reading of a confidential letter to counsel occurred during the critical stage of the direct appeal from the re-sentencing to death. (27) This dispute thus arose just as Nordstrom was trying to develop a rapport with his attorney through the exchange of highly sensitive information in an appeal involving poignant and troubling questions of family betrayal and prosecutorial misconduct. (28) Moreover, Nordstrom found himself in the difficult position of opposing the state's law enforcement establishment to accuse a prominent prosecutor of withholding evidence and presenting false evidence to the jury to secure a conviction and death sentence--only to then discover that their law enforcement brethren in the prison would be looking over his shoulder when he wrote to his lawyer.
Any prison policy or practice of reading legal mail constitutes a deliberate and direct intrusion by the government into the attorney-client relationship in violation of a prisoner's constitutionally-protected rights to confidential communications with and effective assistance of counsel. (29) Not surprisingly, then, every federal court of appeals to address the question has held that it is "a violation of an inmate's constitutional rights for the prison officials to read legal mail." (30) But even as the foundations for protection of prisoner legal mail have been fixed ever more firmly in place, some judges remain reluctant to bar prison officials from reading the contents of legal mail, (31) and abusive interference with legal mail by prison personnel persists. (32)
In this Article, we explain the vital need for confidentiality in prisoner communications with legal counsel to avoid chilling prisoner expression and allow lawyers to ethically and effectively represent prisoners; (33) survey the written policies of the nation's correctional systems regarding legal mail that respect attorney-client confidentiality; (34) describe and analyze the constitutional protections for prisoners in confidential correspondence with lawyers through the rights of free speech, due process, access to the courts, and assistance of counsel; (35) and address the procedural steps and obstacles for a prisoner to seek relief from the courts when that confidentiality is breached by prison policies or practices. (36)
CONFIDENTIALITY IN ATTORNEY-CLIENT CORRESPONDENCE WITH
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. (37)
ATTORNEY-CLIENT CONFIDENTIALITY IN GENERAL
Confidentiality is "the cornerstone" of the attorney-client relationship. (38) As attorneys, we serve as confidants in whom our clients may repose trust. If the client were fearful of disclosure of communications, "the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice." (39) Because clients are guaranteed confidentiality, they are willing to share their most private thoughts and relate the most sensitive and embarrassing information, secure in the knowledge that what has been shared will be safeguarded.
Confidentiality is necessary both to build a strong and trusting attorney-client relationship and to ensure that the lawyer obtains the information necessary to represent the client well. As the Supreme Court recently reiterated, "the need for confidence" is an essential ingredient of that constitutionally-protected attorney-client relationship. (40) Without such "private consultation," the client "does not enjoy the effective aid of counsel." (41)
Intrusion by an outsider into privileged communications is demoralizing to any ethically responsible lawyer and may discourage that lawyer from accepting or continuing the representation. A lawyer has an ethical duty to ensure that communications with a client are kept confidential. (42)
Moreover, the vital attorney-client privilege may be lost when communications are not made in confidence. (43) If a third person may intercept the message, the communication is not in confidence and the privilege does not attach. (44) Thus, for example, if a person makes statements over the phone to his attorney while in the presence of police officers searching his residence, those statements are admissible against him in a later criminal case. (45)
As the Ethics...